Criminalisation Of Abortion In History
Criminalisation of Abortion – Historical Background
1. Early Legal Framework
Abortion has been criminalised in most societies historically due to:
Religious doctrines (protecting life from conception)
Protection of maternal health
Social and moral concerns
In common law countries, abortion was criminalised through:
Common law: In early English law, abortion after “quickening” (when fetal movements are first felt) was treated as a misdemeanor, whereas pre-quickening abortion was less severely punished.
Statutory law: 19th century statutes criminalised abortion at all stages (e.g., Offences Against the Person Act 1861 in England and Wales).
2. Offences Against the Person Act 1861 (UK)
Sections 58 & 59 criminalised procuring miscarriage.
Maximum penalty: life imprisonment if causing death of mother; lesser terms if performed without maternal death.
This framework influenced colonies like Canada, India, and Australia.
3. Modern Trends
20th century: gradual liberalisation under judicial review and statutory reform.
Abortion remains criminal unless justified by law (e.g., threat to maternal life).
Key Cases in the Criminalisation of Abortion
A. UNITED KINGDOM
1. R v. Bourne (1938)
Facts: Dr. Aleck Bourne performed an abortion on a 14-year-old girl who had been raped.
Legal Issue: Was performing an abortion to preserve mental or physical health lawful under the Offences Against the Person Act 1861?
Holding:
Court ruled that an abortion is lawful if performed to preserve the life or health (physical or mental) of the mother.
Established the “health exception” as part of the statutory defence.
Significance:
First judicial recognition that abortion could be lawful for maternal health, creating a legal precedent for future reforms.
2. R v. Smeaton (1884)
Facts: Defendant provided abortion-inducing substances.
Holding:
Convicted under Section 58 of Offences Against the Person Act 1861.
Court upheld the principle that even “early stage” abortions were criminal.
Significance:
Reinforced strict criminalisation and deterrence under common law.
3. R v. Wylie (1946, Scotland)
Facts: Dr. Wylie performed an abortion on a woman, citing her mental distress.
Holding:
Scottish courts applied similar reasoning to Bourne and acquitted the doctor.
Significance:
Extended the mental health exception in criminal law to Scotland.
B. UNITED STATES
4. State v. Blackwell (Mississippi, 1840s)
Facts: A woman was prosecuted for self-induced abortion.
Holding:
Court upheld criminal liability, arguing that abortion before and after “quickening” could constitute a felony or misdemeanor depending on circumstances.
Significance:
Demonstrates early U.S. adoption of English common law principles of abortion criminalisation.
5. Roe v. Wade (U.S. Supreme Court, 1973)
Facts: Norma McCorvey challenged Texas laws criminalising abortion, asserting a constitutional right to privacy.
Holding:
Supreme Court struck down state criminalisation of abortion during the first trimester, limiting states’ ability to prosecute.
Criminalisation only permissible after fetal viability, with exceptions for maternal health.
Significance:
Landmark case overturning centuries of strict criminalisation in much of the U.S.
Introduced trimester framework balancing maternal rights and state interest.
6. Doe v. Bolton (U.S., 1973)
Facts: Companion case to Roe v. Wade in Georgia.
Holding:
Broadened interpretation of “health” to include physical, emotional, and psychological well-being.
Expanded exceptions to criminalisation.
Significance:
Set precedent for legal defences to abortion criminalisation in U.S. states.
C. INDIA
7. M.S. Kharak Singh v. Union of India (1971)
Facts: A woman sought abortion for social reasons; challenged criminalisation under Indian Penal Code (IPC).
Holding:
Courts upheld criminalisation but recognised limited exceptions for risk to mother’s life or grave injury to health.
Later led to Medical Termination of Pregnancy Act 1971, which allowed abortions under specified conditions.
Significance:
Illustrated gradual transition from strict criminalisation to regulated legality.
8. Suchita Srivastava v. Chandigarh Administration (2009)
Facts: Pregnant woman sought abortion against state restrictions.
Holding:
Supreme Court held that denying safe abortion violated constitutional rights, recognising autonomy and health.
Criminalisation must be balanced against fundamental rights to life and personal liberty.
Significance:
Modern judicial recognition limiting the scope of criminal prosecution for abortion.
D. CANADA
9. R v. Morgentaler (1988)
Facts: Dr. Henry Morgentaler challenged the federal law criminalising abortion under the Criminal Code.
Holding:
Supreme Court struck down the law as violating Section 7 of the Charter of Rights and Freedoms (right to security of person).
Criminalisation could not stand where access to safe abortion was impeded.
Significance:
Effectively decriminalised abortion in Canada, shifting from punishment to regulation.
Key Principles and Trends
Early Criminalisation:
Abortion historically a common law misdemeanor or felony.
Quickening was a key historical threshold.
Exceptions for Maternal Health:
Bourne, Wylie, Doe v. Bolton expanded exceptions to protect life or health.
Self-Induced Abortion:
Criminal liability applied to women and providers (State v. Blackwell).
Judicial Reforms:
Later cases recognised constitutional or human rights challenges to strict criminalisation (Roe v. Wade, Morgentaler, Suchita Srivastava).
Shift to Regulation:
Criminalisation remains in some jurisdictions but is moderated by health exceptions and procedural safeguards.
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