Roe v. Wade, abortion, liability
Criminal Law | Law | Women
This note focuses on the issue of the state's application of the criminal law as a sanction against women who choose to have abortions. History reveals that pre-Roe criminal-abortion law-both by its terms and in its application-expressed an incoherent attitude toward the culpability of these women. While criminal-abortion laws treated the abortionist as a serious felon, sending him to prison for up to twenty years,' the same statutes either did not cover the woman seeking an abortion, or, if the statutes did deem her a criminal, prosecutors and courts refused or neglected to hold her liable criminally. The law instead cast women as victims of the criminal conduct of others and sometimes, paradoxically, of themselves.This Note's project, therefore, is to document the progression of criminal-abortion laws and, by providing a moving picture over time, to demonstrate the implications of recriminalizing abortion today. Part I examines the history of the criminal law's treatment of women in the context of abortion. Part II brings the issue of criminal abortion up to date by examining the status of abortion law since Roe, demonstrating the Roe era to be a brief interlude in a remarkably consistent history of the legal treatment of women and abortion in our society. Part III explores the implications for the present debate of our past experience with abortion law. This Part first discusses the persistence of the anomalous treatment of the woman's conduct as the most prominent feature of criminal-abortion laws, both in the past and today. It then poses the political dilemma that confronts the supporters of abortion statutes today. Next, it considers and rejects a variety of potentially sound justifications for the anomalous treatment of the woman's conduct that those supporters might advance. Finally, this Note concludes that if the proponents of criminal abortion cannot successfully portray their legislative schemes as coherent, anything less than a wholesale rejection of criminal-abortion laws represents a return to a legal regime that embraces and perpetuates the paternalistic and patronizing treatment of women.
Samuel W. Buell, Criminal Abortion Revisited, 66 New York University Law Review 1774-1831 (1991).