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The Evolution of Abortion Laws and Practices

            Dennett and Darwin showed us through their observations and writings that all things evolve over time. The application of forward movement to all things organic and inorganic is no less different with laws. At the heart of every political campaign or a Supreme Court appointment are the issues of abortion laws and practices. Most people, if not all, would say that today the overriding issues with regard to abortion laws and practices are those determining at what point the life of an unborn child begins and who has greater rights, the woman or the fetus. Daniel Dennett discusses these very issues in his book Darwin’s Dangerous Idea. He states that the “Darwinian perspective lets us see with unmistakable clarity why there is no hope at all of discovering a telltale mark, a saltation in life’s processes, that ‘counts.’”[1] For moral purposes society needs to have a clear definition of when life begins and when it ends. To date, neither science nor religion has been able to produce a satisfactory definition. Dennett points out that “there is no ‘natural’ way to mark the birth of a human ‘soul,’ any more than there is a ‘natural’ way to mark the birth of a species.” This is a modern day argument. The practice of abortion took the foreground for financial and political reasons long before anyone questioned the morality of this process. Abortions have been performed for centuries without interference from special interest groups or laws that try to set boundaries or conditions around the practice of and requests for abortions. Contained within the next few pages, I will show how the practice and laws have progressed and digressed and conclude with Dennett’s interpretation of Darwinian thought on the subject.

In the early eighteenth century “herbal abortifacients were widely known.”[2] The midwives along with the women of the community actually published cookbooks with recipes for these herbal remedies to bring about spontaneous abortions. These treatments were not considered extraordinary or illicit by those who administered them. Many people regarded this time-period as a prudish or Victorian era; one where women remained virgins until after they were married. This was not true. As a matter of fact in the late eighteenth century sexual behavior loosened considerably. The incidence of premarital pregnancy rose sharply, “…one third of all New England brides were pregnant when they married, compared to less than ten percent in the seventeenth century.”[3]  Abortions were a widely accepted practice as birth control methods, other than abstinence, had not yet been developed. As the need for abortions continued to grow so did the rate at which abortionists hung out their shingle offering their services.

            Beginning in the early 1840s abortions were a business and a service openly traded in the free market. The abortionists and their offerings were advertised in many magazines as well as curb-side signs. Many abortionists were supporting themselves and their families by way of abortion fees. Interestingly, “Abortions became one of the first specialties in American medical history”[4] even though most abortions were not performed by a physician.

The American Medical Association (A.M.A.) was formed in the mid 1800s and among their beginning acts of solidarity they joined together to try to make abortions illegal. “As more and more irregulars [abortionists] began to advertise abortion services openly…regular physicians grew more and more nervous about losing their practices to healers.”[5] Essentially they were losing income to the abortionists and needed to come up with a way to put them out of business.  These physicians persuaded political leaders (who were uniformly male) that “abortion constituted a threat to social order and to male authority.”[6] Therefore, laws were put in place restricting abortions and who could perform them hence putting abortionists out of business. However, these laws had a short life span as women banded together and fought to have the basic right of “self-governance”, including the right to decide whether to bear a child. In opposition to this demand the federal government banned women’s access to information about both contraception and abortion.

            For women, winning the battle of self-governance was also short lived. Beginning in the 1890s and continuing through the first decades of the twentieth century lawmakers, physicians and religious leaders were concerned with a practice called “race suicide.” The “race suicide” alarmists worried that prosperous, white, and Protestant women were not having enough children to maintain the political and social supremacy of their group. The Protestants were seriously worried that these women were not keeping up with the reproductive rates of Catholic immigrants. This fact played a greater role in the “drive for anti-abortion laws in America than Catholic opposition to abortion did.”[7] The Protestants did not want to be out numbered by the Catholics therefore something had to be done – laws had to be changed and implemented in order to save the dominant white Protestant race.

Throughout the twentieth century, abortion was regulated by state laws that were adopted in the nineteenth century. With these laws abortion, which had previously been unregulated, became “categorically and absolutely prohibited unless to save the life of the mother – the so-called therapeutic exemption.”[8] Making abortions illegal drove the women who wanted and needed to have an abortion underground to hidden back rooms with primitive, unsanitary conditions. Many women died or became permanently sterile as a result of back-room coat hanger abortions. Activists and reformers took to the streets and coordinated a movement to abolish the then current abortion laws and to draft new ones. This attack led to a massive legislative and judicial assault on existing abortion laws, forcing the legislatures to sort out the constitutional implications of abortion reform. The culmination of this effort was, Roe v. Wade in 1973.

Roe v. Wade was a landmark case that has been at the heart of political and religious debates since the 1970s. In a nutshell, Jane Roe petitioned the court to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions.”[9] Abortions at this time were illegal unless the survival of the mother was in question. The outcome of that case was in favor of Jane Roe. A woman can have an abortion ‘on demand’ if she so chooses as long as it is within the first trimester “without interference by the State.”[10] The only time that a State can interfere is when there is a viable fetus – meaning that there is a possibility that said fetus could live outside of the womb – unless it is necessary to preserve or protect the life or health of the mother.

In conclusion, I find it quite interesting and sad that the path by which abortion laws and practices have been established and enforced were initially based on physicians losing income evolving to white Protestant supremacy and further evolving to today’s moral debates about when life begins and who has greater rights; the mother or the fetus. The evolution of these laws and practices has not advanced our society nor has it focused on the individual rights that a woman has over her own body without religious or political interference. Jane Roe has helped champion women’s causes tremendously but she (along with others) has been unable to close this chapter in history. Perhaps if more people read and understood Darwinian and Dennett thinking we’d at least have some closure. Daniel Dennett shares Darwin’s feelings with regard to the issue of abortion as such “… Darwinian thinking helps us see why the traditional hope of solving these problems (finding a moral algorithm) is forlorn. We must cast off the myths that make these old-fashioned solutions seem inevitable. We need to grow up, in other words.”[11] If it were only this simple – we could then concentrate on other more pressing issues facing the United States.