"Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother."
His opinion continued with, "It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect."
In fact, according to Justice Blackmun, "a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today," with respect to the early stage of pregnancy. The opportunity to make this choice was present in this country well into the 19th century. "Even later", he wrote, "the law continued for some time to treat less punitively an abortion procured in early pregnancy".
He wrote, "It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct." He added that, "the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
"A second reason is concerned with abortion as a medical procedure." He explained that when most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman, particularly prior to the development of antiseptic techniques. Even after Pasteur and Lister's discoveries in 1867 it was not generally utilized until the 1900's.
Therefore, it was --argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman", and, "to restrain her from submitting to a procedure that placed her life in serious jeopardy."
As we now know, and Justice Blackmun opined, "Modern medical techniques have altered this situation". Medical data indicates that abortion in early pregnancy, "prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth".
Furthermore, he wrote, "Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared"
"The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception"
"Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life. Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest."
He continued in his opinion by writing that, "There is some scholarly support for this view of original purpose. The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus. Proponents of this view point out that in many States, including Texas, by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
He concluded that, "It is with these interests, and the weight to be attached to them, that this case is concerned."
In articulating the Constitution's position on the right of privacy, Justice Blackmun stated, "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
He stated that the denial of aborting an unwanted pregnancy could "force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it".
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