The nineteenth century saw a change in laws about abortion in many parts of the Western world as various states attempted to restructure their existing legal systems into a more systematic and “scientific form.” Legal traditions were either incorporated into statute law or in many cases discarded. France led the way when it enacted the Napoleonic Code civil in 1804 and, because French armies occupied much of Europe, it had tremendous influence. Later, after the defeat of France, many areas continued to observe the provisions of the code until they revised their own law codes as Italy, Spain, Germany, and even the Catholic Church did in the nineteenth century. Other countries of the world, including in Latin America, most of the countries of Europe, and countries outside of the European tradition such as Japan and Turkey, followed the trend.
In the process many of the states sought to regulate reproduction more effectively. In France in 1791, even before the reorganization of the law by the Napoleonic code, a new statute allowed for the prosecution of criminal abortionists. Such people were not defined and it might simply have been those without any medical degree. More drastic changes came in the aftermath of the Napoleonic code, and by 1810 prosecution was possible of anyone who by food, beverage, medicines, violence, or any other means procured an abortion on a pregnant woman, whether or not the woman had consented. Those found guilty were to be imprisoned even though the abortion attempt might not have been successful. The law, however, initially omitted the pregnant woman from punishment, providing the drugs had been self-administered, but anyone, whether physician or midwife, who assisted or advised her on what to take could be held criminally guilty. In 1817 the French law was amended to apply to women who secured their own abortions. Similar provisions were incorporated into other national law codes.
In England, in 1803, an omnibus crime bill was passed in an effort to eliminate some of the contradictions in common law about criminal activity. Among other things, abortion became a statutory offense, although there were distinctions. Abortion after quickening was classified as murder whereas before quickening it was only a felony. Over the century the laws were gradually tightened.
In the United States, Connecticut in 1821 was the first state to enact a specific law against abortion, but abortion before quickening was not made an offense until 1860. Illinois in 1827 punished only the use of poisons and did not include surgical or other means as punishable until 1867. Gradually as statutory law replaced common law, specific provisions dealing with regulation of abortion were enacted. New York, in its 1828 statute, allowed for legal abortions necessary to preserve the life of a mother but required that two physicians agree. The criminalizing of abortion but allowing therapeutic abortion was a general trend of the law, the effect of which was to give the decision to the medical professional rather than the individual involved. It also made abortion a class issue because the well-to-do with their private physicians could get a therapeutic abortion, but the poor had to turn to others. Abortion prohibitions were also more likely to be enforced against the unmarried mothers than the married ones with children.
Some saw the attempt to control abortion as a necessary corollary to protecting women from butchery by incompetent, nonmedically trained abortionists. In the nineteenth-century United States, where almost anyone could claim to be some sort of medical practitioner, simply requiring the intervention of a medical professional was not enough. The emerging American Medical Association, which came to dominate medicine by the end of the nineteenth century, however, emphasized the dangers of abortion as a way of moving against what its members believed were the untrained practitioners, ranging from midwives to naturopaths, who were active in the field. As gynecology progressed with the use of anesthetics and better aseptic techniques and moved into the emerging maternity hospitals and out of the home, the control over legal abortion lay entirely in the hands of the physician. Individual physicians who might once have performed an abortion in the privacy of the patient’s home now found it difficult to even do therapeutic abortions without getting the agreement of their colleagues in the hospitals to which they were attached.
As medical sectarians and midwives were driven out of the professional field, the difficulty of finding a physician even for a therapeutic abortion increased. By 1966, fourth-fifths of all abortions were for married women and the rate of legal to illegal abortions was 1 to 110. Unfortunately, many of the illegal abortions were performed by people who operated on the fringe of society and were often carried out in unsanitary conditions in temporary offices. Because the activity was illegal, and police raids not uncommon, the equipment was kept to the bare minimum and information was passed by word of mouth. Complications were not unusual, even though an abortion is a rather simple procedure in the first trimester if carried out with good aseptic techniques by individuals who know what they are doing.
