The Right of a Woman to Determine Her Own Reproductive Process – 1967

The following proposals are offered for purposes of discussion by the 1967 NOW Membership Conference.

1. Constitutional Amendment

There is perhaps no more fundamental human right, save the right to life itself, than the right to one’s own physical person, a basic part of which is the right to determine whether or not one will give birth to another human being. An egg, a sperm, a zygote or a fetus is not a person or a human being and does not have “rights” as a person or a human being. Whatever “rights” these may have are necessarily because of biological fact completely dependent upon and subordinate to the human bodies which house them.

Constitutional rights are accorded to human beings solely in terms of restrictions on governments. It is the government’s interference with the right of women to control their own reproductive process that we are concerned with here. All of the states have laws restricting this right of a woman to her own physical person. New York NOW has urged that that state adopt a constitutional provision prohibiting governmental interference with this right. The following suggested amendment to the United States Constitution would protect this right of women in all the states:

THE RIGHT OF A WOMAN TO PREVENT CONCEPTION AND WITH PROPER MEDICAL SAFEGUARDS TO TERMINATE HER PREGNANCY SHALL NOT BE DENIED OR ABRIDGED BY THE UNITED STATES OR BY ANY STATE.

The effect of this amendment would be to nullify all existing state criminal abortion laws, leaving the question of whether or not to have an abortion a matter for the woman herself, rather than the government, to decide.

2. Revision of State Laws

Criminal abortion laws in 42 states prohibit the performance of abortions unless necessary to save the life of the pregnant woman. In the other eight states – Alabama, California, Colorado, Maryland, Mississippi, New Mexico, North Carolina, and Oregon – and in the District of Columbia, abortions are permitted in certain other additional circumstance, such as where pregnancy results from rape, incest, or where the physical or mental health of the woman is endangered.

Bills to make abortion laws restrictive were introduced in 28 state legislatures in 1967. The Colorado and North Carolina laws, enacted in 1967, are patterned after the American Law Institute’s Model Penal Code.

They permit abortions where continuance of the pregnancy would gravely impair the physical or mental health of the woman, the child would be born with grave physical or mental defect, or the pregnancy resulted from rape, incest or other felonious intercourse. (It may be noted that the definition of “human being” in the ALI Model Penal Code criminal homicide provisions is “a person who has been born and is alive.”)

In spite of the state criminal abortion laws, it is estimated that between 110,000 and over a million illegal abortions are performed in this country each year, and at least 4 out of 5 of them on married women.

Abortion is not a desirable method of birth control and other means should be made available to everyone who wishes to use them. However, criminal abortion laws clearly have proven to be ineffectual in eliminating the use of abortion as a means of birth control, and have driven women to unskilled practitioners, handicapped doctors in practicing their profession, and have made a mockery of the law.

State criminal abortion laws could, of course, simply be repealed or they could be replaced with statutes which give a pregnant woman a right of civil action against any government official who requires or attempts to require her to have an abortion or who prevents or attempts to prevent her from having an abortion. In other words, the statute would recognize her civil right to determine her own reproductive process by giving her a right to sue the particular agent of the state who deprives or attempts to deprive her of that right.

This kind of civil rights protection giving a right to sue for damages is similar to that provided in one of the post Civil War federal civil rights statutes (42 U.S.C. 1983):

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Under such a replacement statute, a doctor would be free to perform an abortion without fear of any criminal prosecution. But if a state or local welfare official tried to force a woman to have (or not have) an abortion, she could sue him for damages or get a court order restraining him from pressuring her or cutting off her welfare funds if she refused to comply with his wishes.

The following is a proposed model state law to prevent governmental interference in a woman’s reproductive process:

ANY PERSON WHO, UNDER COLOR OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR CUSTOM, REQUIRES OR ATTEMPTS TO REQUIRE ANY PREGNANT WOMAN IN THIS STATE TO HAVE AN ABORTION, OR PREVENTS OR ATTEMPTS TO PREVENT ANY PREGNANT WOMAN IN THIS STATE FROM HAVING AN ABORTION PERFORMED BY A LICENSED MEDICAL PRACTITIONER SHALL BE LIABLE TO SUCH WOMAN IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS.

SECTION (reference to criminal abortion law) OF (state statutes) IS HEREBY REPEALED.

It is not the function of government to determine who shall and who shall not give birth to a child. The first paragraph of the above model law, with the deletion of the words “in this state” might also be appropriate for a federal law.