The Abortion Revolution

Under the 19th Century laws Still in force in most of our states, a doctor may legally perform an abortion only to preserve a woman's life. Carried to its illogical extreme, this provision would, today, require the termination of every pregnancy for the simple reason that now a woman is ten times more likely to die from pregnancy or childbirth 3than from a hospital abortion.

This farfetched interpretation serves to illustrate the absurdity of governing the 20th Century practice of abortion by laws based on 19th Century medical conditions. For in the 1800s, before anesthesia, antibiotics, blood banks and modern surgical techniques, abortion was a medically hazardous procedure. Indeed, it was this medical hazard, not moral compunction, that originally prompted the passage of these laws. And now that abortion is safe, the argument for the repeal of these laws can be based on one of the oldest principles of common law: Cessante ratione legis, cessat et ipsa lex (When the reason for the law ceases to exist, the law itself ceases to exist).

Unfortunately, this basic legal point has been lost in the heated debate about a separate, nonlegal issue: the alleged rights of the fetus. The controversy derives from theological metaphysics--and, in a nation founded on the principle of separation of church and state, should never have been introduced to our courtrooms and legislative chambers.

By the early 1900s, medical science had advanced to the point where hospital abortions were fairly safe. They were performed for such conditions as diabetes, tuberculosis, heart disease and pernicious vomiting--conditions that did then pose a threat to a pregnant woman's life. The decision to do an abortion for any of these reasons was not easy, however, for usually the patient wanted the baby, and doctors had to weigh her desire against risks that were difficult to determine with accuracy. Such Solomonic wisdom is rarely needed now that most of these diseases can be controlled or cured.

A new dilemma appeared in the early Forties, when doctors learned that rubella, or German measles, can cause fetal deformities. Unfortunately, the profession cannot take much pride in its reaction to this discovery. For a time, the danger went unpublicized; only when rubella threatened their wives or nurses would most doctors perform abortions--usually under some psychiatric pretext. When news of the rubella danger eventually reached the public, creating a demand too strong to ignore, the profession timorously refused to press for legislative change. Instead, doctors formed therapeutic-abortion boards to diffuse the responsibility for breaking the laws.

Up to that point, the medical profession was not directly confronted with the problem of premarital or unwanted pregnancies; it could stand behind the shield of laws that were restrictive and explicit, leaving the pregnant teenager and most other women to the traditional fates of forced marriage, illegitimate childbirth or back-alley abortion. "Respectable" doctors had only to grapple with those cases where some extenuating circumstance--the woman's life or possible fetal deformity--required the exercise of legal and ethical judgments. But times were changing; increasing public knowledge of abortion policies in other countries, of the simplicity of the operation, of the loopholes in the law, led more and more women to seek termination of their pregnancies for personal or economic reasons. For some, the solution lay in psychiatry. If a psychiatrist would certify that a patient was suicidal due to her pregnancy, the vagueness of many laws would allow for an abortion to save her life. So this became the ruse for performing most "legal" abortions--on private patients who could afford a psychiatrist who would lie for them. As long as the magic word suicide appeared in his recommendation, the abortion board was satisfied.

These boards were a step backward. They permitted doctors to avoid any exercise of personal conscience by passing the buck to a hospital committee, where bureaucratic protocol usually took precedence over humanitarian considerations. I saw one teenager's request for an abortion approved on psychiatric grounds by a committee that later rejected a second request from the same girl, just because she dared to get pregnant twice. I saw a 13-year-old, impregnated by her mother's lover, turned down because her story could not be officially authenticated--the eyewitness testimony of her half brother having been ruled inadmissible because he was only nine years old. I saw a rubella victim turned down because she lived a few miles across the state line: The hospital would have readily accepted cases of trauma or disease from another continent, but it wouldn't accept an abortion case from a nearby town.

Of course, such laws and policies discriminated heavily against the poor. In the early Sixties, New York City's private hospitals aborted one pregnant woman in 250; the municipal hospitals, one in 10,000. The rate for white women was five times that for nonwhites and 30 times that for Puerto Ricans. If a debutante could not find a compliant psychiatrist, for $1000 she could always go to a competent M.D. abortionist or fly to Mexico or Puerto Rico (where abortions are illegal but available), England or Japan (where they are legal). These women almost never suffered medical aftereffects. If, on the other hand, a lower-class woman became unwillingly pregnant, her options were less attractive. She could have the baby (which was often illegitimate and virtually un-adoptable if black) or she could, by herself or with the help of a friend, resort to using Lysol or a coat hanger and end up very, very sick--or dead. Over 350,000 clinic patients were admitted to our hospitals every year with complications resulting from abortion. Every year, more than 500 of them died.

Naturally, the illegal-abortion business involves big money and has attracted organized crime. So one of the objectives in legalizing abortion has been the same as the reason for legalizing off-track betting. Since both will go on regardless of the law, the public interest will be better served by legitimizing them.

As I have indicated, the argument for legalizing abortion could stop right here, for it is predicated on legitimate concern for the health and welfare of the pregnant woman--just as were our original abortion laws. As it happened, however, some theologians, particularly Roman Catholics, gradually developed equal concern for the fetus. And it is over this difference in the priority of human values that the abortion battle has been waged.

Curiously enough, this is a recent development. In previous centuries, the Catholic Church had no answer to the conundrum of when the soul enters the embryo. Saint Augustine admitted that he didn't know. Saint Thomas Aquinas thought that it might occur at the time of quickening--about halfway through pregnancy. Not until 1869 did the Church decide that the embryo is ensouled at the moment of conception and that abortion at any time is therefore equivalent to murder.

So while new medical discoveries and new social concepts dictated freedom in abortion, a new religious tenet called for stricture. And virtually the entire legislative debate became mired in this completely tangential issue--tangential because the question is not whether the fetus has a soul (which is unanswerable) nor whether fetal life is as sacrosanct as existing human life (which is a uniquely Catholic contention). The question is whether women have a fundamental right to bear or not to bear children and, incidentally, whether a church should be free to impose its beliefs on the state.

Ironically, most Catholics do want reform; one out of three favors total legalization, and among college students [see Playboy's Student Survey on page 182], this figure rises to almost 50 percent. Many polls have shown this. It is primarily the celibate Catholic leaders who denounce abortion--just as they denounce contraception, sterilization and divorce. But the power of this relatively small body of men is disproportionately great, based as it is on such overwhelming dedication, organization, wealth, resources and access to millions of people. For example, on several occasions during the legislative battle to repeal New York's abortion law, the state's eight Catholic bishops issued a joint pastoral letter that was read from the pulpits of 1700 churches, reaching an audience of 6,500,000. The same tactic was also used in other states, usually with devastating results.

The advocates of abortion reform have had no such power. Two national groups were organized, but they had little money and no pulpits. Local groups sprang up--idealistic and eager but usually unable to raise the money or the manpower to wage an effective campaign. Most people, although admitting privately that they wanted reform, would not readily lend their time, open their purses or sign their names for a cause so controversial.

Faced with 1000 letters branding him a murderer if he voted for abortion reform and 100 letters demanding female rights, the unknowing legislator of five years ago was led to believe that reform was not wanted--until he polled his constituents, as many eventually did. Then he invariably found that his mail had been misleading.

Whenever a Catholic legislator debated an abortion bill, his oratory typically began with the admission, "I am a Catholic" (which made him seem ingenuous), then proceeded to the qualification, "But I am not speaking as a Catholic" (which was disarming but untrue), and ended with the assertion, "Abortion is murder" (which he learned from his earliest religious training). Constantly referring to the fetus (or even the embryo) as a child, he would then reach the height of his polemic by equating the legalization of abortion with the genocidal atrocities of the Nazis and predicting that easing the abortion laws would lead to infanticide, euthanasia, the eradication of social misfits and complete disintegration of American morality.

At the end of the New York debate, Senate Majority Leader Earl W. Brydges rose, actually in tears, to recite a pile of doggerel, long known to participants in the abortion battle, titled The Diary of an Unborn Child. In it, the "child" proceeds to rhapsodize about the prospect of extrauterine life, until, one dey--pause--"My parents killed me!"

Ultimately, these tactics offended even some of the Catholic legislators, who this year rose for the first time to say, "I, too, am a Catholic. And I, too, do not believe in abortion. But I also believe my religious convictions should not be imposed, as law, upon those who believe otherwise." And this, of course, is the nub of the issue. Throughout these battles--in New York and elsewhere--it has never been sufficiently stressed that no matter how liberal the law, it can never force a woman to have an abortion against her will. This is what opponents of abortion always seem to imply--that its legalization would somehow make it mandatory. And the silence traditionally surrounding the subject has helped foster the notion that abortion laws somehow have protected society from some sinister urge to cease procreating.

Ten years ago, abortion was not a subject suitable for polite conversation. Women who terminated their unwanted pregnancies did so in fear and silence, often risking their lives and suffering the shame and guilt that surrounds such back-street activity. Society tolerated illegal abortion as a necessary evil, sufficiently costly to individual sinners to leave the public conscience clear. Then a series of events took place that no thinking person could ignore.

First there was the Sherri Finkbine incident, in 1962: the young housewife from Arizona who had taken Thalidomide, a tranquilizer found later to often cause serious birth defects, and who had to go to Sweden for an abortion because no American doctor had the guts to bend the law.

Next came the rubella epidemic of 1963--1965, leaving 30,000 deformed babies in its wake. Hospitals were by this time permitting abortions for rubella--but not often enough.

(continued on page 150)Abortion Revolution(continued from page 114)

And in 1965, the momentous decision of the U. S. Supreme Court declared the birth-control laws unconstitutional on the ground that they infringed upon a newly enunciated right--the right to marital privacy.

In addition, the sexual revolution, the population explosion, the decline in religiosity and the demand for equality of the sexes helped change the climate of thinking about abortion. Finally, in the age of modern contraceptives, women were beginning to regard sex without pregnancy as a natural and personal right. As this concept firmly took hold, the pill could be viewed as a safeguard against unwanted pregnancy and abortion as the simple solution to contraceptive failure.

By the mid-Sixties, abortion--like contraception and sex itself--was no longer a taboo subject and the first real efforts at reform were getting into gear. But what could such a movement hope to achieve five years ago? Its leaders, who had wrestled with the problem, professionally and personally, favored outright repeal of the laws; but most laymen and legislators, who had not thought much about it, were not yet ready to go that far.

With foresight, the prestigious American Law Institute (A. L. I.) had proposed a Model Penal Code to update the entire book of criminal law. Its recommendation about abortion, made in 1959: that it be permitted for mental and physical health, fetal deformity, rape and incest. Although this A. L. I. package would have merely legitimized the hospital abortions already being done by many respectable doctors in reputable hospitals, it provided the thin edge of the wedge on which the movement could begin to hammer.

The first legislative breakthrough occurred in 1967 in Colorado. If this initial victory had happened in Nevada--with its reputation for divorce, gambling and prostitution--the movement could have been set back ten years. Even a Southern state would have been unfortunate, for some militant blacks might have charged genocide--as, indeed, they did when Georgia changed its law the following year.

Now, 12 states have A. L. I. reform laws--four in the West, one in the Midwest, six in the South and one in the East. And, as is usually the case with halfway measures, they have solved much less than half the problem. Hospital abortions are up 25 times in Colorado and California, but criminal abortions still abound. In Georgia, the hospital rate hasn't changed at all. Once it became clear that the liberalized statutes were mostly paper reforms, that particular movement died. The states with reform laws can be congratulated for having achieved all that was possible in those times and circumstances, for having helped awaken the country to the inequities of the older laws and for having proved that "reform" is a futile compromise. Now the movement is calling for outright repeal.

Hawaii led the way. And then New York and Alaska. Ironically, repeal may now be easier to achieve than reform. In a reform bill, legislators must agree on the reasons for which an abortion may be performed. And it has been repeatedly demonstrated that legislators, playing amateur doctors and theologians, can debate these stipulations indefinitely--and then abandon the effort. But with repeal, they pass this responsibility on to the medical profession. Neither legislators nor doctors are willing to concede that this responsibility rightfully rests with the woman herself. This was the real issue in the long and bitter fight to reform, and later to repeal, the 140-year-old New York law that had survived as long as it did through religious and political skulduggery hardly rivaled in American legislative history.

The most recent fight began in 1964. I received a clue to its future course when I testified that year before New York's Temporary State Commission on Revision of the Penal Law and Criminal Code, which was considering reform of the laws pertaining to every crime, from homosexuality to homicide--but not abortion. When I urged the adoption of the A. L. I. proposals, the commission candidly conceded that "it would be most unrealistic for any assemblyman who had dreams of a political future to put a bill vis-à-vis abortion laws [before the legislature] of New York."

Heedless of this admonition, Assemblyman Percy E. Sutton did introduce such a bill. And the following year, when Sutton left Albany to become Manhattan's borough president, Assemblyman Albert H. Blumenthal took over. Every year there were public hearings. Every year the legislators voted according to their religion or their erroneous appraisal of their constituents' will, and the bill was ultimately defeated. This despite the support of Governor Rockefeller, Senators Javits and the late Robert Kennedy, Mayor Lindsay and virtually every non-Catholic medical, legal, religious and civic group in the state--and over 80 percent of the New York electorate, according to polls.

In 1969, Blumenthal, a Democrat, finally lined up enough votes to guarantee passage of his reform bill. At the same time, however, he vigorously opposed Governor Rockefeller's budget cuts. Perhaps in retaliation for this unrelated stand--although ostensibly in response to an emotional speech by a polio-crippled Republican assemblyman, whom many assumed to be a victim of a birth defect--13 Republicans switched their votes and the bill died again.

During the five years the New York assembly debated abortion reform, it was never even considered by the senate--largely due to the opposition of Majority Leader Brydges, a Roman Catholic. Then, in 1970, a total repeal bill--one that would leave abortion a matter to be decided only by the woman and her physician--was drafted by none other than Brydges himself. His intent, evidently, was to head off the growing reform movement by proposing a bill so radical that it had no prospects of passage--and whose defeat would, by implication, buttress the existing New York law. He even announced that he would vote against his own bill.

Senator Brydges first scheduled debate on the bill for March 17, Saint Patrick's Day, until The New York Times suggested that his timing might be more than coincidental, whereupon he rescheduled the debate for the following day. Perhaps because the bill's opponents were confident of its defeat, and because the debate lasted only one day, the Catholic leaders did not mobilize their usual campaign before the vote was taken. To the surprise of everyone, and especially Senator Brydges, the repeal bill passed, 31 to 26.

In the assembly, the bill was successfully bottled up in the Codes Committee, whose chairman opposed reform. Momentum was lost and the opposition was able to rally its forces. Amendments were introduced. Easter intervened. The blistering pastoral letters were read from 1700 pulpits and pressure began to mount against Catholic assemblymen--some of whom were denounced by name in their own churches for having indicated their support for the bill. Seventy-six votes were needed for passage. Those present at roll call, on March 30, cast 73 yes votes, and two assemblymen who had left the chamber had instructed the clerk to record their votes in favor of the bill--a routine practice. Speaker Perry B. Duryea had promised to cast the 76th vote for repeal if it was needed; but, instead, he made the unprecedented move of refusing to count the votes recorded by the two absentees. So the bill went down, 73 to 71.

Enraged by this denouement, reformers demanded a revote. Another week elapsed. Catholic pressure intensified. On (continued on page 272)Abortion Revolution(continued from page 150) April eighth, the day before the assembly's second debate, Speaker Duryea, who had been chastised by his colleagues for disallowing the absentee votes, took the unique precaution of refusing to permit a revote unless all members of the assembly were in attendance. Those not present, he announced, would be brought to the chamber "by whatever force necessary," including the state police.

Martial methods were not required, however. All of the assemblymen were in their seats the next day. To succeed, of course, the reform group had to hold onto each of its original 75 votes. But as the roll call proceeded, it became apparent that there were defectors. Having been denounced as murderers by their parish priests, three Catholics switched their votes from yes to no. Two votes switched the other way, but this was not enough. And then--only seconds before the clerk was to announce defeat of the bill for want of a single vote--assemblyman George Michaels stopped the roll call. "The act I take here today may terminate my political career," he said, and then he requested that his no vote be changed to a yes. Duryea then asked that his name be called, so that he could cast the decisive 76th vote. (Assemblyman Michaels was subsequently denied the endorsement of the Democratic Party and defeated in his bid for re-election by his predominately Catholic constituency.)

The senate still had to consider the assembly's amendments to its original bill. These would limit the time of an abortion to the 24th week of pregnancy and require the woman's written consent (both farcical restrictions, since abortion is defined medically as the termination of pregnancy prior to the 20th week, and no one advocates involuntary abortion). Despite frantic last-minute efforts by the bill's opponents, no votes were switched. On April tenth, the measure passed, 31 to 26. The following day, Governor Rockefeller signed the bill. It became law on July first. [See this month's Playboy Forum for further information on obtaining abortions under the New York State law.]

The dramatic New York battle has had its counterparts in other states. In Hawaii, a repeal bill sponsored by Senator Vincent Yano--a Catholic and the father of ten children--passed both houses after fierce debate and became law without the signature of Governor John A. Burns, also a Catholic. In Alaska, Governor Keith Miller vetoed the state's abortion-law-repeal bill on the ground that it infringed on the "right of life," but Senator John Rader was able to gather enough votes to override the governor's action. In Maryland, assemblyman Allen Specter's repeal bill passed both houses, only to be vetoed two months later by Governor Marvin Mandel. One of Mandel's justifications for the veto was that the bill set no time limit. He professed shock that women might have abortions up to the eighth and ninth month of pregnancy. This, of course, was a specious argument, since an operation that late in pregnancy is not, medically speaking, an abortion. In a number of other states, repeal bills either died in committee or were defeated in the legislature.

These stories illustrate the problem of securing abortion reform through legislation. Even when possible, it takes enormous time and effort; and in many states, the obstacles are simply insurmountable. But in one respect, the problems of ultra-strict laws and ultraconservative lawmakers have proved a blessing in disguise. It was the failure of the moderate reform efforts that led the movement's tacticians to try a new and potentially more successful approach: challenging the abortion laws in court. The great advantage of this approach is that a single Supreme Court ruling could nullify the abortion laws of every state that still restricts such operations.

Several lower courts already have handed down favorable decisions. A court in Brooklyn, for example, awarded $100,000 to the child and $10,000 to the mother, a rubella victim, because the hospital had neither informed her of the likelihood that her child would be deformed nor referred her to another hospital where she could have obtained a therapeutic abortion. As in most such cases, a Catholic obstetrician was involved. For the first time, however, a jury found his actions incompatible with those of the general medical community. The judge--who happened also to be a Catholic--sustained the award to the mother but overruled the award to the child (who is partially blind, deaf, retarded and spastic), on the ground that "a plaintiff has no remedy against a defendant whose offense is that it failed to consign the plaintiff to oblivion." Both sides have appealed.

A Catholic judge in Massachusetts ruled adversely on a motion to dismiss the indictment of Dr. Pierre V. Brunelle, a physician accused of performing an extra-hospital abortion. After hearing voluminous expert testimony challenging the constitutionality of the law, Superior Court Judge Cornelius J. Moynihan contended that "the evidence before me clearly establishes that the ... fetus ... is not a potential human life, but actual human life" and dismissed all ten of the defense's constitutional arguments with the incredible rationale that "If the law on abortion is not as responsive to felt need as the people believe contemporary life demands, the remedy rests with a democratically elected legislature and not with the courts." His decision, too, is being appealed.

Fortunately, other abortion cases have been judged on their legal merits. In Los Angeles, for example, Dr. Leon Belous was convicted, at the criminal-court level, for having referred a patient to an unlicensed doctor-abortionist. A respected obstetrician active in the abortion-law-reform movement, Belous appealed to the state supreme court, claiming that the law under which he had been charged was unconstitutional. On September 5, 1969, the court agreed with him and, in so doing, struck down the law. The attorney general of California appealed the decision, but, as expected, the U. S. Supreme Court refused to review it--for it is unusual for the High Court to review the decision of a state supreme court that voids one of its own statutes.

Regrettably, Belous had been arrested in 1966, before the California law was liberalized; so the 1967 reform law was left standing on the books. And it is one of the poorest of the new laws, because, thanks to the insistence of Governor Reagan, it does not even permit abortion for fetal deformity. Recently, however, the present California law has been found unconstitutional by municipal-court judges in Hayward and in Orange County, and other cases will probably reach the courts this year.

The Belous case illustrates why attempts at limited legislative reform are now dead--or should be. The old laws, which still exist in 35 states, are vulnerable to constitutional attack; but if these are ruled null and void, the states with reform laws may remain stuck with them. It will then take another round of litigation to get rid of these laws--which seemed so progressive just a few years ago.

In yet another California case, nine San Francisco obstetricians were brought before the State Board of Medical Examiners, at the instigation of a Catholic member, for having performed hospital abortions for rubella during the 1963--1965 epidemic. Disregarding the well-known fact that rubella abortions were accepted medical practice throughout most of the country, the board took it upon itself to discipline these physicians, who, in turn, had the courage to take their case to court. The board's action was overruled. A superior court held that it would be cruel and unusual punishment to deprive a woman of an abortion if she had had rubella during her pregnancy and that the California law violated the 14th Amendment, which provides for due process and equal protection.

It seems evident to me that all of these laws are unconstitutional, though I am not a lawyer. Experts claim that they are unconstitutionally vague, that they deprive the doctor of due process, that they infringe on marital privacy, that they interfere with the doctor-patient relationship, that they prevent physicians from practicing medicine in accordance with modern standards, that they discriminate against the poor, that they violate the guarantee against cruel and unusual punishment and that they are inconsistent with the separation of church and state.

Several of these allegations were upheld in the Belous case. In reaffirming the married couple's "right to privacy or liberty in matters related to marriage, family and sex," the court further asserted that the abortion law infringed upon "the fundamental right of the woman to choose whether to bear children." The main point, however, was vagueness.

In November 1969, two months after the California decision, the District of Columbia's abortion law was struck down by Federal District Court Judge Gerhard A. Gesell. Reiterating many of the arguments cited in the West Coast case, Judge Gesell held the District of Columbia law unconstitutionally vague (although it permitted abortions for health as well as life) and ruled that it "improperly limits the physician in carrying out his professional responsibilities." Judge Gesell then called upon the city's public hospitals to liberalize their abortion policies immediately and urged the U. S. District Attorney's office to appeal his ruling directly to the U. S. Supreme Court. The judge in this case is the son of the famous pediatric psychologist, the late Dr. Arnold Gesell, who is sometimes cited by Catholics to prove that the fetus is a human being, because he believed (as all doctors do) that there is neurological growth in utero.

Similar rulings have been handed down by a South Dakota circuit court, a district court in Michigan and Federal courts in Wisconsin and Texas, which have unequivocally struck down state abortion statutes on constitutional grounds.

The Wisconsin case invoked an expeditious new principle in jurisprudential procedure. It seems that now the constitutionality of a given law, if challenged on reasonable grounds, can be tested by requesting the appointment of a three-man Federal court. And the decision of this body, if appealed, goes directly to the highest Court in the land. This strategy was first applied to abortion law by a brilliant young constitutional lawyer, Roy Lucas, who prepared the model brief now being used in court actions throughout the country.

But the Wisconsin decision was significant in another respect. It did not void the law on grounds that it was vague or violated due process or otherwise lacked certain legal features that a legislature might easily remedy by enacting a new and more carefully written law just as restrictive as the old one. Instead, the court found that the crucial sections of the statute infringed on the citizen's fundamental right of privacy as implicit under the Ninth Amendment and as protected from state interference by the 14th Amendment. If the Supreme Court should uphold this ruling on such sweeping grounds--the basic right of privacy--state legislatures would have virtually no legal basis for either rewriting their laws to correct legal deficiencies or attempting to impose any new legal restrictions beyond those concerned merely with the practice of medicine by licensed physicians. In short, abortion would be ruled a basic right beyond the reach of any law, liberal or otherwise. Similar court actions are under way in at least 20 states.

These test cases have, of course, had their effect on legislative action, and vice versa. Throughout the debate on New York's repeal bill, for example, its supporters were able to cite the ground swell of judicial as well as public opinion favoring freedom of abortion; and this doubtlessly influenced many otherwise timid legislators to vote in favor of repeal. And now the Supreme Court finds itself asked to rule on not one lower-court decision but several, with more on the way. As things stand now, the Court will grapple with the abortion question sometime this fall. It could elect to side-step the issue on technical grounds; it could find only certain specific laws unconstitutional on narrow grounds; or it could extend the right-of-privacy doctrine to the termination of pregnancy and take the Government out of the picture once and for all. The last course of action would accomplish in one stroke what would otherwise take years of legislative wrangling in state after state.

In my view, repeal through the courts instead of through legislatures is preferable for yet another reason--a subtle one that involves the peculiarities of the medical mind. If the states repeal their laws, the doctors are going to say, "OK, now there is no law against doing an abortion"--but many doctors still won't do them, just as many refuse to do sterilizations. But if the courts declare abortion laws unconstitutional, then doctors will say, "Now it is against the law not to do abortions"--and then they will do them, for in some cases, they may be sued if they don't.

Doctors are confused about abortion. They are disturbed by its sexual connotations. They are atavistically punitive toward pregnant teenagers. They think that eradicating even problem pregnancies is somehow anti-obstetrics or anti-God.

When I entered the private practice of obstetrics 15 years ago, I thought that I could differentiate the truly desperate woman, overburdened by an urgent psychiatric problem, from the merely inconvenienced woman facing an everyday dilemma--and, further, I thought that only the former deserved an abortion. After listening to a few hundred such women, however, I learned that the distinction between the two types is unimportant and, what's more, that distinction is none of my business.

To determine when to prescribe an antibiotic or when to perform an appendectomy requires a doctor's judgment. Since abortion is a medical procedure, one that once entailed considerable risk, doctors have come to believe that their medical judgment, as well as their surgical skill, is required to decide who should have one. It is not. Now that abortions are actually safer than childbirth, it's no longer within a doctor's purview to decide which women qualify and which do not.

Of course, the doctor still must play a role--three roles, in fact:

1. He must be able to detect the occasional woman whose reason for requesting an abortion is unduly impetuous, self-destructive or vindictive: the engaged couple, for example, very much in love but inclined toward abortion simply because they are afraid to tell their parents about their predicament; or the man or woman who wants to get rid of a wanted pregnancy in order to punish the spouse. I would say that these irrational motives are responsible for about one percent of the abortion requests I receive. In these cases, I think it's the doctor's job to try to dissuade the patient from making a decision she might later regret. But if he fails, he must either do the abortion or send her to someone who will.

2. He must actually suggest abortion as a possibility to the occasional unhappily pregnant woman who is too ignorant or too fearful to ask. This situation will occur more often in hospital clinics, where there are patients who are still unaware, for example, of the dangers of rubella in pregnancy. In these cases, I think it is the doctor's duty to encourage the patient to consider abortion as an alternative to having the baby.

3. And, finally, he must perform the abortion.

If the doctor's roles are limited to these three, he will in most cases serve as a mere technician, which is not quite the aspiration of most physicians but, in the unique area of abortion, exactly what he should be. Doing an abortion properly requires medical training, but deciding whether to do it, in most cases, does not. The only excuse for a doctor's refusing to do an abortion should be the contrary dictates of his conscience, and then he should be obligated to refer his patient elsewhere.

When doctors realize that their roles are limited in this way, they will balk. They will claim a dearth of hospital beds (although abortions can be done safely on an outpatient basis); they will plead lack of manpower (although they find time to do more than 1,000,000 pelvic operations a year on nonpregnant women); and they will resent being "told" by their patients to do an operation (although, of course, they are no less "told" to deliver babies). A massive educational effort will be required to teach them that in the Seventies, their M. D. degree imposes upon them social as well as professional responsibilities.

Some doctors will sense this innately. Some will come around later. Many will hold out in self-righteous disdain of such a change in social values. Others, however, will capitalize on their colleagues' hang-ups by opening abortoria or doing abortions in their offices--and making a fortune. These latter-day pirates are little better than their former criminal counterparts. To stop them, other, more scrupulous doctors are going to have to provide this service in a proper setting at a reasonable cost.

John Adams once said that the American Revolution took place in the minds of the people years before the first shot was fired at Lexington. In the same sense, the abortion revolution has long been anticipated by the American people. Their minds have already changed. Our youth, in particular, have seen the hypocrisy of these laws. Not long ago, a news magazine reported on a girl who went to Mexico City for an abortion, because, in her words, "I feel I don't have to be declared nutty to make up for the fact that my diaphragm didn't work. I refuse to go through this humiliating process." Women, in growing numbers, are insisting that their unwanted pregnancies be terminated right here in the United States, without interference from the law.