The Right of Abortion

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The relevant statistics have been widely circulated: for example, of therapeutic—that is, in-hospital—abortions in New York City in the early sixties, the majority of them for "psychiatric" reasons, 93 percent were performed on white patients, 91 percent in private rooms. The ratio of in-hospital abortions to live births in New York City was approximately one to 360 for private patients and something like one to 10,000 in municipal hospitals. At the same time the women whose deaths were associated with abortion in New York City in a typical year were 56 percent black, 23 percent Puerto Rican, and 21 percent white.

The 8000 to 10,000 in-hospital abortions contrast, of course, with the estimated one million performed outside hospitals annually. Probably not much more than one half of these are performed by doctors; the rest by the "kindly neighbor," the "close friend," or the woman herself. Generally speaking, the laws do not distinguish in their prohibitions of abortions between doctors and nondoctors. Moreover, the out-of-hospital abortions performed by doctors are obtained by the same group which accounts for the bulk of the in-hospital abortions: the middle- and upper-income white woman who can afford the hundreds or thousands charged for expert medical service outside the law. And these are the same women who can afford to go to Japan, Sweden, England, or one of the Iron Curtain countries where abortions are legal and where they typically cost something between $10 and $25.

But most of the old laws on abortion remain unchanged on the statute books. In a few states, like Connecticut or Missouri, the law says that the abortion may be performed to save the life of the child as well as that of the mother, although no one is sure what this means. As a matter of fact, no one knows what the laws which permit abortion to save the life of the mother mean. Courts in a number of states have held that the danger to life need not be either "imminent" or "certain." But how "imminent" or "certain"? Is it enough that the pregnancy if it comes to term will seriously damage the mother's health? Or will result in the birth of defective offspring?

Clearly, a number of doctors think the answer to these questions is yes, since abortions, especially on white women with good incomes, are routinely and openly performed in some hospitals in most states and the prosecuting authorities do nothing about it. Criminal laws like these, the meaning of which people must guess at, are open to constitutional attack on this ground, as the United States Supreme Court has often held with respect to other "vague" prohibitions. There are many other grounds of constitutional challenge as well: the rights of women, rich and poor, black and white, to equal protection of the law—that is, to get proper medical treatment without discrimination on the grounds of race, color, or income; the rights of physicians to do their professional duty in the light of what is known and believed by medical science today; the right of privacy declared by the United States Supreme Court in the Connecticut birth-control case where Sir Justice Goldberg in his concurring opinion stated that compulsory pro- or anti-birth-control laws are equally "totalitarian" and unconstitutional; the right to be free of "cruel and unusual punishment"; and others. Also it may well be that some courts faced with the unconscionable dilemma posed by the abortion laws and unwilling to resort to constitutional grounds, will "interpret" the laws out of existence eventually, as has happened to the federal birth-control laws.

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