Fundamentals of Criminal Law by Adam J. McKee

Abortion is a medical or surgical procedure used to terminate a pregnancy. In simpler terms, it’s the process where a pregnancy is ended before the fetus or embryo can live outside the womb. The reasons people choose abortion can vary widely, from personal or financial reasons to health risks associated with the pregnancy. While many countries around the world have legalized abortion, the topic remains controversial and is often interwoven with religious, moral, and societal debates.

Legislative Intent: The Reasoning Behind Abortion Laws

Laws surrounding abortion often seek to balance the rights of the pregnant person, societal beliefs, and the perceived rights of the fetus or embryo. Several concerns drive legislation in this area:

  1. Protection of the Pregnant Person: Some laws aim to ensure that abortions are done safely, protecting the health and life of the individual.
  2. Moral and Ethical Concerns: Many societies, often influenced by religious beliefs, see the fetus as a potential life, leading to restrictions or bans on abortion.
  3. Population and Societal Concerns: In some regions, laws might either restrict or promote abortion based on demographic and population control considerations.
  4. Protection against Coercion: Laws might also aim to ensure that no one is forced into having an abortion against their will.

Legal Classification of Abortion

In most legal codes, abortion is not classified as a traditional crime. Instead, it often falls under health or medical regulations. Where it is criminalized, it can be classified as a crime against persons, due to the potential harm or risk to the pregnant person or the fetus. The penalties for illegal abortions can range from fines to imprisonment, depending on the jurisdiction and the circumstances surrounding the abortion.

Abortion within Broader Criminal Categories

Abortion is unique in its classification among criminal offenses. It isn’t strictly a crime against property, nor is it purely a crime against persons or a sexual crime. Rather, it exists at the intersections of personal autonomy, bodily rights, and societal moral codes. When criminalized, it’s typically due to the potential harm to the fetus, categorizing it as a crime against persons. However, the focus on the pregnant person’s health and choice places it in a distinct category altogether, often leading to heated debates.

Tracing the History of Abortion Laws

Historically, attitudes toward abortion have varied greatly across cultures and eras.

  • Ancient Codes: Ancient civilizations like the Greeks and Romans did not have strict prohibitions against abortion. It was often practiced for various reasons, from preserving the mother’s health to controlling family size (Riddle, J. M., 1992).
  • Biblical and Religious References: While the Bible doesn’t directly address abortion, various interpretations have been used to support both pro-life and pro-choice views. Early Christian teachings, for instance, varied in their views on when the fetus received a soul (Hersch, J., 1992).
  • English Common Law: Sir William Blackstone, in his Commentaries on the Laws of England (1769), touched upon the issue of abortion. Blackstone referred to it primarily in the context of “quickening” (when fetal movements are first felt), arguing that causing a miscarriage before quickening wasn’t as serious an offense as after (Blackstone, W., 1769). His views, heavily influenced by prevailing religious beliefs of his time, laid the groundwork for English and American abortion laws.

Over time, advances in medical science, shifts in societal beliefs, and changing cultural norms have greatly influenced modern laws on abortion. The controversy surrounding abortion rights remains, making it one of the most debated topics in legal and societal forums worldwide.

Modern Penal Code’s Perspective on Abortion

The Modern Penal Code (MPC) provides an intricate definition and framework concerning abortion. According to the MPC § 230.3, abortion is defined as the termination of human pregnancy with an intent other than to produce a live birth or to remove a dead fetus. The MPC lays out several criteria for when and how abortions can legally be performed. For instance:

  1. Timing Restrictions: Abortions conducted after viability (typically around 24 weeks) may face restrictions unless necessary to preserve the life or health of the pregnant person.
  2. Manner of Performance: The procedure should be done by a licensed physician or under a physician’s direct supervision, and in a facility approved by relevant health boards.
  3. Informed Consent: Some jurisdictions under the MPC model might require the informed consent of the pregnant person, after being provided with certain information (MPC § 230.3(1)).

This definition, influenced by both medical understandings and societal perspectives, offers a comprehensive view of abortion within the context of the MPC.

Defenses under the MPC for Abortion

The MPC provides for several defenses, emphasizing both the rights of the pregnant person and the ethical considerations surrounding the procedure:

  1. Lack of Knowledge: If it can be proven that the individual wasn’t aware that they were terminating a viable pregnancy or was not informed about the specifics of the procedure, it might serve as a defense (MPC § 2.04(3)).
  2. Duress: If an abortion was conducted due to threats or the use of force, making the individual believe that they had no other viable option, it can be considered as a defense (MPC § 2.09).
  3. Health Concerns: A crucial defense is when the abortion is necessary to preserve the life or health of the pregnant person, even if conducted post-viability.

However, it’s pivotal to note that the application and acceptance of these defenses might vary based on individual case circumstances and the specific jurisdiction.

The Dobbs Decision

In the case of Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court revisited the constitutionality of abortion, which had been recognized as a constitutional right under Roe v. Wade (1973). Roe had argued that the right to privacy, as implied by the 14th Amendment, encompassed a woman’s right to choose to have an abortion. However, it allowed for government regulation depending on the stage of pregnancy, with more restrictions permissible as the pregnancy progressed, particularly after the point of fetal viability.

The Dobbs decision marked a pivotal shift. Justice Samuel Alito, writing for the majority, articulated that the legitimate unenumerated rights—rights not explicitly stated in the Constitution—are those “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Under this criteria, the majority opined that abortion did not qualify as such a right, thereby overturning the precedent set by Roe v. Wade.

The consequences of the Dobbs ruling were immediate and significant, precipitating a wave of legislative activities across the states. The onus now fell on individual states to decide the legality and the extent of access to abortion. Ten states—Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico—saw their high courts interpret their state constitutions to uphold or even enhance the right to abortion beyond the federal constitution’s now-limited scope. Conversely, several states moved swiftly to enact laws making abortion illegal, reflecting the polarized nature of abortion rights in the country. This legislative flurry revealed a fragmented legal landscape where reproductive rights are concerned, with access to abortion now varying significantly from one state to another.

Key Elements

For abortion to be treated as an offense under the MPC, the following elements must be present:

  1. Mens Rea (Guilty Mind): Intention or knowledge of terminating a pregnancy in a manner not permitted by law.
  2. Actus Reus (Guilty Act): The actual act of performing or attempting an abortion.
  3. Concurrence: The guilty intent and the act occur simultaneously.
  4. Causation: The procedure directly led to the termination of the pregnancy.
  5. Harm: Potential harm to either the pregnant person or the fetus, especially if conducted in a manner inconsistent with medical best practices.
  6. Attendant Circumstances: The context in which the abortion is performed, such as the stage of pregnancy or the manner of the procedure.


Modification History

File Created:  07/17/2018

Last Modified:  07/17/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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