5. Jurists approve abortive contraception

Summary: Chapter V

Jurists approve abortive contraception


I. The Model Penal Code of the American Institute of Law (ALI)

The American Law Institute (ALI) is a private entity, founded in 1923 by lawyers, judges, and academics to study, clarify, and modernize American law at all levels. One of ALI’s most important project was the drafting of the Model Penal Code (MPC), which has had great influence both in the United States and in other countries.

The text of the Code’s article on Abortion and Related Offenses (Section 230.3 of the MPC) dealt with the different criminal categories of abortion (unjustified, justifiable, self-induced, fictitious and irregular) and pre-implantation contraceptives. It was approved at the session of May 24, 1962 after introducing some important amendments. That same year, the Institute published the Official Final Draft of the MPC and in 1985, the Official Draft with Explanatory Notes was published, which put an end to the project begun more than fifty years before.


II. Subsection 7 of Article 230.3 on Abortion and Related Offenses, of the Model Penal Code

There are countless works that were published, commenting on the successes and shortcomings of Section 230.3, so it is surprising that one of its paragraphs, Subsection 7, barely aroused the attention of the experts, despite the novelty of its content and the serious impact of its ethical and anthropological implications. Its text says: “7. Section Inapplicable to the Prevention of Pregnancy. Nothing in this Section shall be considered applicable to the prescription, dispensation or distribution of medicines or other substances to prevent pregnancy, either because they impede the implantation of a fertilized egg, or by any other method that operates before, during or immediately after fertilization. ”

This stunning subsection prescribed, on the one hand, that the other paragraphs (1 to 6) of the section did not apply to contraceptive methods. On the other hand, however, it established that medicines and substances that would operate after fertilization were to be considered simple contraceptives, which at that time implied an unprecedented and novel assertion. Prior to the appearance of the MPC, the destruction of young human embryos had long been recognized as very early abortion. Thus Subsection 7 introduced for the first time in society the notion that the destruction of young human embryos, could no longer be considered or penalized as an abortion, so long as this destruction occurred through a mechanism that operated between fertilization and implantation – an assertion which greatly expanded the concept of contraception.

Due to the decision of the governing bodies of the ALI, Subsection 7 remained unchanged throughout the complex drafting process of the MPC. Only a few authors alluded to various particulars of Subsection 7. Thus, for example, Meloy only inquires into the meaning of the expression “drugs or other substances”. Albright, Byrne, and Crooks accuse the subsection of vagueness, ambiguity, lack of medical grounds, and of offering a biased moral vision. Mietus and Mietus criticize some errors contained in the ALI Commentary on §207.11, such as the assertion that only in the fourth month of gestation is the fetus firmly implanted in the uterus; or that the difference between the embryo as “being initiated,” on the one hand, and the fully formed fetus, on the other, justifies the ethical and juridical position that distinguishes between lives that can be discarded and lives worthy of being saved. Kutner criticizes ALI for avoiding altogether the ethical problem of control of fertility prior to implantation. Grisez notes that Subsection 7 is a clear invitation both to develop pharmacological abortifacients, such as the morning-after pill, and to legitimize abortifacient techniques of birth control, such as the IUD. Marshall and Donovan point out that “the language used presupposes that there are two different beginnings for the same gestation, namely, fertilization and implantation.” In the middle of the 20th century, denying ethical significance to fertilization was a bold decision, given that it is also necessary to remember that the ‘pill’ was not approved by the FDA for contraceptive use until 1960. In 1957, on a statistically questionable basis, it had been approved for certain gynecological indications, after evaluating its efficacy and safety, but without having precise knowledge of its mechanism of action.

To all this the ALI simply responded: “Subsection (7) draws the line between abortion and contraception in order to prevent the Article from being applied to criticize the techniques that prevent pregnancy, even when these techniques operate shortly after fertilization. Recent research on contraception shows that certain methods of birth control which involve ingesting oral drugs prevent the fertilized oocyte from being implanted on the wall of the uterus, a necessary precondition for fetal development.” The response contained no references regarding what this recent research might be or where it is published. A review of the knowledge about the abortifacient effect of oral contraceptives at the time reveals that they were moving in the field of conjecture, not on the basis of proven data.

With the passage of time, the mechanism of action by inhibition of implantation had become common knowledge. We must therefore acknowledge that, in the end, Subsection 7 was ultimately prophetic.  Clearly, at the time of its writing, it was designed to mislead. After all, it was based on unsubstantiated claims, rather than scientific evidence. Ultimately it was designed to introduce contraception as something required by the advancing society of the day, and thus to give legal sanction to the change of attitude towards sexuality.



Author: Gonzalo Herranz, University of Navarra.  Email: gherranz@unav.es


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