Professional Documents
Culture Documents
Abortion
Author(s): Edwin M. Schur
Source: Annals of the American Academy of Political and Social Science, Vol. 376, Sex and the
Contemporary American Scene (Mar., 1968), pp. 136-147
Published by: Sage Publications, Inc. in association with the American Academy of Political and
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Abortion
By EDWINM. SCHUR
ABORTION
137
tion are probably of even greater interest than is the practice itself-since,
in an important sense, it is the society's
dominant reaction to such behavior
which shapes the conditions under which
it occurs and which really determines
whether (or to what extent) abortion is
to be considered a "problem."
THE
PRESENT
STATUS
THE UNITED
OF ABORTION
IN
STATES
138
ABORTION
bility for denial of an abortion request.
All available data indicate that institution of abortion boards has contributed
to a decline in the performance of hospital abortions. For example, a Therapeutic Abortion Board was established
at Sloane Hospital for Women in New
York City in September of 1955. During a five-year period following this
date, the rate of abortions performed
(as expressedin the ratio between therapeutic abortions and deliveries) declined to almost precisely one-third of
what it had been during the five years
preceding the advent of the board.5
The changing medical indications for
abortion and the widespreaduse of abortion boards have combined to produce
declining rates of therapeutic abortion.
Thus, a recent study found a "consist-
139
of pregnancies.8
Indeed,
ent downward trend" in the incidence perhaps only a small fraction are actuof therapeutic abortion in New York ally in accord with the letter of the law.
City during a twenty-year period According to a report based on informa(1943-1962), a decline in the nature of tion from twenty-nine hospitals in Cali65 per cent. The total number of
a,- fornia, "many routinely performed
proved abortions performed in all bor- therapeutic abortions fall outside any
oughs of that city during the three-year possible statement of the legal justificaperiod 1960-1962 was 875.6 The esti- tion, while more are at best of dubious
mated annual national total for hos- legality."'
German measles early in
pital abortions is now around eight pregnancy, and a variety of psychologithousand. One commentatoron the na- cal disturbances (the assessment of
tional situation (who places particular which may often include indirect conemphasis on the restrictionsproducedby sideration of socioeconomic and other
the abortion board procedures) refers situational factors), are probably at
to "a drastic reduction resulting from present the primary bases for this inone of the greatest cases of jitters ever formal medical loosening of the legal
to afflict the medical profession."?
restrictions. Most studies now show
The possible validity of this assess- that mental disorders have become a
ment is highlighted by the same author's major (perhaps the major) indication
discussion of experience in two particu- for therapeutic abortion in recent years.
SRobert E. Hall, "TherapeuticAbortion, Illegal abortion
Sterilization, and Contraception,"American
Journal of Obstetrics and Gynecology, 91,
Bobbs-Merrill,1966), p. 24.
140
are performed each year in the United scrupulous "butcher" abortionists may
States, an authoritative estimate (made even be in the minority. A study by
by a statistical committee of abortion the Kinsey Institute (in which the samexperts) in 1955 stated that the annual ple admittedly overrepresented women
number of induced abortions could be who would be in a position to obtain
anywhere between 200,000 and 1,200,- better than average abortion services)
found that about 85 per cent of induced
000.1o These figures, and that of 8,000
for therapeutic abortions, indicate the abortions had been performedby physidimensions of the traffic in illegal abor- cians.13
tion. Indeed, the demand for these
Perhaps the most noteworthy general
relatively scarce services is so great that point about illegal abortion is the patent
the illicit practitioner finds himself in a unenforceability of the laws against it.
highly favorable economic market situ- The abortion situation represents but
ation, perhaps akin to that of an un- one of a number of instances of what I
challenged monopolist.11 High profits, have elsewhere termed "crimes without
in turn, enable him to perform the op- victims"-in which an attempt is made
eration with a greater degree of safety to proscribe through criminal law the
to the woman, and also to absorb the willing and private exchange between
costs of protecting his underground adults of socially disapprovedbut widely
practice-including the purchase of po- demanded goods or services.14 Prohilice protection, when that becomes nec- bition was the classic case; current atessary.
tempts to regulate prostitution, homoWhile provision of these illicit ser- sexuality, drug addiction, and gambling
vices has at times reached high levels of would also fall into this category. Of
organization (in the form of abortion course, the victimless nature of these
forms of behavior might well be debated,
"mills" and "rings"),12 many abortions
are, in fact, performed by individual but the designation does not focus on
practitioners operating on the fringes of whether or not any individual is in fact
(or even mainly engaged in) legitimate victimized. Rather, it is meant to highmedical practice. No definite statistics light the fact that the "offenses" in
exist concerning the proportion of crim- question represent transactions between
inal abortions performed by trained (more or less) willing buyers and selphysicians, but recent studies suggest ers. From the standpoint of law-enthat the completely untrained and un- forcement consequences this consensual
element is crucial. Citizens do not come
10 Mary S. Calderone (ed.), Abortion in the
forward to complain to the police of
United States (New York: Hoeber, 1958), p.
180.
these transactions in which they have
11 See Herbert L. Packer, "The Crime
been involved. As a result, enforceTariff," The American Scholar, 33 (1964), pp.
ment activity is hamstrung for lack of
Thomas
C.
also
"Eco551-557;
Schelling,
evidence.
nomic Analysis and Organized Crime," in
U.S., President, Commission on Law EnforceIn the case of abortion, even women
ment and Administration of Justice, Task who have found the
experience exForce Report: Organized Crime (Washington,
and
are
distasteful
tremely
frightening
D.C.: U.S. Government Printing Office, 1967),
most reluctant to co-operate in enforcepp. 114-126.
12Jerome
Bates, "The Abortion Mill: An
ment efforts. Usually, criminal abor-
ABORTION
OF
POLICY
141
142
the various strata have unequal resources at their disposal. A considerable amount of education and general
"know-how" will usually be necessary
to recognize the possibility of obtaining a therapeutic intervention, to take
the initial steps needed to set the therapeutic abortion-seeking process in motion, and to present one's case in such
a manner as to maximize the likelihood
of approval. Theoretically, decisions
regarding performance of therapeutic
abortions should be made on the basis
of medical judgment (in which, if anything, low socioeconomic status might
be a factor weighing in favor of approval of an abortion request). It is
true that, as just noted, there probably
is a self-selection determining the socialclass distribution of women requesting
legal abortion-and even of women
bringing their situations to legitimate
medical attention. Nonetheless, such
factors seem inadequate to account for
the striking socioeconomic differentials
in the actual performance of hospital
abortions. One researcher recently reported that "the over-all frequency of
therapeutic abortions at 60 outstanding
American hospitals is 3.6 times higher
on their private services than on their
ward services." '8
17
143
ABORTION
AND
SOCIAL
CHANGE
144
Abortion, a national organization promoting education and research on abortion and serving as a clearinghouse for
information on the topic. Action organizations, openly devoted to effecting
reform of the criminal law on abortion,
also have arisen in several cities.
In the most significant survey of
public opinion on the topic (conducted
by the National Opinion Research
Center in December of 1965), a representative sample of 1,484 adult Americans were questioned as to the conditions under which they would approve
legal abortions. The percentage approving, for each of the six sets of
circumstances presented in the survey,
were as follows: If the woman's own
health is seriously endangered by the
pregnancy, 71 per cent; if she became
age of sixteen).24
During the past ten pregnant as a result of rape, 56 per
years, many medical organizations have cent; if there is a strong chance of seriissued statements in opposition to the ous defect in the baby, 55 per cent;
present laws, and in June of 1967, the if the family has a very low income and
American Medical Association itself cannot afford any more children, 21 per
(through its House of Delegates) stated cent; if she is not married and does
its support for legal revision along the not want to marry the man, 18 per
lines of the American Law Institute's cent; if she is married and does not
proposal. At the same time, systematic want any more children, 15 per cent."6
surveys of professional and public It is particularly interesting that close
opinion have indicated strong sentiment to half of the Catholic men and women
for abortion reform. In one of the questioned in this study were in favor
most important medical surveys, of of allowing legal abortion in the first
obstetrician-gynecologists in New York three instances (despite the fact that
State, 85.3 per cent of the 1,350 re- none of the circumstanceswould justify
spondents were found to favor (in it according to official Catholic doc1965) modificationof New York's abor- trine). Clearly, there is strong public
tion law in accordance with the ALI support for the ALI recommendation,
model.25 Results in this poll helped to and, undoubtedly, recognition of this
provide the impetus for the formation support (and of the accompanying proof the Association for the Study of fessional pressure for reform) partly
accounts for the fact that, in the past
23 Calderone, iloc. cit., is a complete report
year or so, several states have liberalof the proceedings of this conference.
ized their abortion statutes. Reform
24American Law Institute, Model Penal
Code, Proposed Official Draft (Philadelphia:
American Law Institute, 1962), pp. 189-190.
E. Hall, "New York Abortion
25Robert
Law Survey," American Journal of Obste:rics
and Gynecology, 93, December 15, 1965, pp.
1182-1183.
ABORTION
proposals also were initiated, but defeated, in a number of other jurisdictions-including New York.
Social sources of change
The development of an increasingly
liberal outlook on abortion in our society reflects broader and quite complex
patterns of social change. Aspects of
the practice of induced abortion cause
it to be implicated in and responsive to
emerging patterns with respect to the
norms governing private sexual behavior, the intentional control of fertility,
and the social roles of women in modern
society. In all of these areas, the
hallmark of the changes that are taking
place is the increased emphasis placed
on individual free choice-in particular,
a socially approved extension to women
of areas of freedom hitherto not accorded them."7 Indeed, freedom of
abortion-and hence control over maternity-has, at times, been considered
to be the touchstone of a complete
emancipationof woman,28and it is often
remarked that men have enacted the
abortion laws while women have suffered from this action. (It is interesting, however, that in the national survey
cited earlier, men were somewhat more
liberal in their attitudes toward abortion
than women.)
To some extent, changes relating to
abortion may reflect a general reaction
against attempting to use the criminal
law to "enforce private morality," for
we are seeing today a questioning of
policy in many of the "crimes without
victims" areas. However, each of these
behavioral proscriptions gives rise to
27 See William J. Goode, World Revolution
and Family Patterns (New York: Free Press,
1963); also Edwin M. Schur (ed.), The
Family and the Sexual Revolution (Bloomington: Indiana University Press, 1964).
28 Simone de Beauvoir, The Second Sex,
tr. H. Parshley (New York: Alfred A. Knopf,
1957).
145
146
A major obstacle to reform of abortion laws has, of course, been the position of the Roman Catholic Church.
Under Catholic doctrine, intentional
abortion (including one performed on
allegedly therapeutic grounds, even
where the life of the mother may be at
stake) is considered a form of "direct
murder of the innocent" and hence intrinsically immoral.
Whetherinflictedupon the motheror upon
the child, it is againstthe precept of God
and the law of nature: "Thou shalt not
ABORTION
Prospects
It seems likely that, as part of more
general patterns of social change, abortion statutes in a large number of jurisdictions may soon be modified in accordance with the ALI formulations.
Some observers suggest that this change
will affect only a limited proportion of
women currently seeking abortion-unwanted pregnancies among single
women, and among married women who
feel they cannot afford or handle (or
who simply do not want) another child,
would not be covered. And, it is argued, to deny woman mastery over her
own body (and to make her beg for
abortion, as she would have to do under abortion-board systems and other
legal arrangements) is an affront to
human dignity.3' Nothing short of legal abortion on demand can satisfy the
latter objection. With respect to the
former, however, it is not at all clear
that such extension of therapeutic abortion through legal revision could not
34 Garrett Hardin, "Abortion and Iuman
Dignity," Public Lecture, University of California, Berkeley, April 29, 1964; also Rossi,
loc. cit.
147
substantially improve the over-all abortion situation. To the extent that abortion comes increasingly to be viewed as
a medical question, to be managed by
the medical profession-and given the
inclusion of mother's "health" (physical
and mental) as well as "life" among
the excepting criteria in most reform
statutes-it is quite possible that broad
interpretation could gradually extend
legal abortion to cover most (admittedly
not all) abortion-seekers.
The future status of abortion relates
also to trends in the dissemination and
effective use of contraceptive information and techniques. Notwithstanding
the serious obstacles to developing anywhere near completely effective use of
contraception in all sectors of our society, improved contraceptive practice
could appreciablyreduce the demand for
abortions. It could not, however, eliminate all the situations in which abortion would be desired. But as the
secrecy and misinformation which have
clouded the question of abortion recede,
and as a medically oriented approach to
abortion gains ascendancy, rational policies for coping with the continuing demand may be forthcoming.