A Brief Study on American Abortion Legislations

Abstract： Abortion issue is one of the most controversial topics in contemporary America. Opponents and supporters of abortion have launched a heated debate on the legality of abortion， the right of women to terminate pregnancy， and fetus’ right to live. This paper introduces the history of abortion legislations in America， to make readers to have a brief understanding of the evolution of American abortion legislations.

Keywords： abortion；legislations；Roe v. Wade；American

1. Pre-Roe period

Before the 19th century， the American abortion law mainly followed the British common law. Coke and Backstone interpreted the rule about abortion in the British common law as “any abortion after quickening （16 to 18 weeks of pregnancy） is a crime.” （Reagan 1997： 9）

Later， British Miscarriage of Woman Act （1803） defined pre-quickening abortion as felony， post-quickening abortion as death. Influenced by Miscarriage of Woman Act， by 1849， twenty states in the U.S. had enacted restrictive abortion laws， made pre-quickening abortion a misdemeanor， and made post-quickening abortion a second-degree murder. These abortion laws strictly forbade abortion except for “therapeutic” abortion.

In the 1960s， because the rising of Women's Rights Movement， feminists became the promoters of the abortion law reform. Influenced by this trend， Colorado was the first to permit abortion in case of sexual criminal， incest and when the life of the mother was endangered by pregnancy. By 1972， eighteen states had made more liberal abortion laws or abolished the old ones. Abortion could be permitted if the mother's life was seriously endangered by the pregnancy， or the unborn had mental or physical defects， or the pregnancy was caused by a crime.

2. Roe v. Wade

In August 1969， Norma McCorvey， a 21-year-old girl from Texas， claimed she got pregnant due to being raped. She had no economic ability to raise the baby. So she wanted to get an abortion. However， in Texas， abortion was prohibited. And people who had an illegal abortion would be severely punished. Thus no doctor would dare to perform an abortion on her. At that time， two feminist lawyers decided to help McCorvey.

In March1970， with the help of the two lawyers， McCorvey （under the alias Jane Roe） went to the Federal District Court to prosecute Dallas County District Attorney Henry Wade. That was the famous Roe v. Wade case in American history. Roe claimed that abortion was completely the freedom of a pregnant woman， and that any authority could not restrict the freedom of abortion. She held that Texas abortion law deprived women's right to choose， trampled on the individual privacy， thus went against the Constitution. Roe requested the Texas abortion law to be banned. Texas government held that human life began at conception， allowing abortion equaled to permitting murder. The state claimed that the fetus’ right to life shall not be deprived. Finally， the District Court announced the Texas law unconstitutional， because it violated citizen’s right of privacy which was granted by the Ninth Amendment to the Constitution. The District Court， however， did not make a ban against the law. So Roe had to appeal to the Supreme Court.

The case reached the Supreme Court in May， 1971. Eventually， on January 22， 1973， the Court made its decision. Roe won the case by a 7-2 vote. The Court held that the Texas law which made abortion a crime was unconstitutional， because Texas abortion law ignored the three trimesters of pregnancy and further neglected the mother’s rights， violated the Fourteenth Amendment.

3. Post-Roe period

The decision of the Roe case made the forty-six states abortion laws unconstitutional overnight. Legalization of abortion had also led to a surge in the number of abortion. Then the Supreme Court had accepted a series of cases concerning abortion. The Supreme Court’s decisions were always influenced by the social and political forces. Judging these cases， the Supreme Court began to swing between “Pro-Life” and “Pro-Choice”. Although the Court insisted that women had the abortion right protected by the Constitution， it made a lot of concessions to the “Pro-Life”.

After Roe v. Wade， the state government had been working to enlarge or limit the rights of women. Nonetheless， Roe had never been overruled in a substantial sense. “Cases after Roe not only reflected the struggle of justices between ‘Pro-Life’ and ‘Pro-Choice’， but also reflected some concessions on protecting women's abortion right.”（Ren 2005： 291）

Works Cited

[1] Reagan， Leslie J. “When Abortion Was a Crime： Women， Medicine， and Law in the United States.” Berkeley： University of California Press， 1997.

[2] 任東來. 美國憲政歷程：影響美國的25個(gè)司法大案[M].北京：中國法制出版社， 2005： 291.

作者簡介：

劉娜（1993.05-）女，漢族，山西省太原市人，現(xiàn)就讀于天津外國語大學(xué)英語學(xué)院2015級(jí)英語語言文學(xué)專業(yè)。主要研究方向：美國社會(huì)與文化。

（作者單位：天津外國語大學(xué)英語學(xué)院）