The colonies inherited English Common Law and largely operated under it until well into the 19th centu-ry. English Common Law forbade abortion. Abortion prior to quickening was a misdemeanor. Abortion after quickening (feeling life) was a felony. This bifid pun-ishment, inherited from earlier ecclesiastic law, stemmed from earlier "knowledge" regarding human reproduction.

In the early 1800s it was discovered that human life did not begin when she "felt life," but rather at fertiliza-tion. As a direct result of this, the British Parliament in 1869 passed the "Offenses Against the Persons Act," eliminating the above bifid punishment and dropping the felony punishment back to fertilization. One by one, across the middle years of the 19th century, every then-present state passed its own law against abortion. By 1860, 85% of the population lived in states which had prohibited abortion with new laws. These laws, preced-ing and following the British example, moved the felony punishment from quickening back to conception.

J. Dellapenna, The History of Abortion:
Technology, Morality, and Law,
University of Pittsburgh Law Review, 1979

Abortionists, if convicted, were sent to jail for vary-ing lengths of time. There is no record of any having been executed.

The definitive study on this gives the lie to Planned Parenthood’s ads which claimed: "If you had a miscar-riage you could be prosecuted for murder."

Studying two hundred years of legal history, the American Center for Bioethics concluded:

"No evidence was found to support the proposition that women were prosecuted for undergoing or soliciting abortions. The charge that spontaneous miscarriages could result in criminal prosecution is similarly insupportable. There are no docu-mented instances of prosecution of such women for murder or for any other species of homicide; nor is there evidence that states that had provi-sions enabling them to prosecute women for procuring abortions ever applied those laws. The vast majority of the courts were reluctant to im-plicate women, even in a secondary fashion, through complicity and conspiracy charges. Even in those rare instances where an abortionist per-suaded the court to recognize the woman as his accomplice, charges were not filed against her. In short, women were not prosecuted for abortions. Abortionists were. The charges of Planned Par-enthood and other "pro-choice" proponents are without factual basis. Given the American legal system’s reliance on precedent, it is unlikely that enforcement of future criminal sanctions on abor-tion would deviate substantially from past en-forcement patterns."

Because there were no scientifically accurate meth-ods in those days to diagnose early pregnancy. The only absolute diagnosis of pregnancy, medically and legally binding, was for the doctor to hear the fetal heart, and that was only possible after four and five months. Prior to that, the abortionist could claim that her menstrual period was late or that she had some other malady, and that all he did was to bring on her pe-riod.

It is all but impossible to convict a person of murder unless the body can be produced, the corpus delicti. Since they were almost never able to obtain and exam-ine the tissue removed from the woman’s body, in a court of law it was almost impossible to prove (a) that she had been pregnant and (b) that the actions of the abortionist had terminated the pregnancy.

In practice, abortionists, therefore, were typically only prosecuted when the woman had been injured or killed. It was not until the advent of x-rays in the early 1900s (fetal bones visible at three months) and later hormone tests for pregnancy in the 1940s that pregnan-cy could be legally confirmed in its earlier weeks.

In 1967 Colorado and California legalized abortion. By June, 1970, when the State of New York passed the first Abortion on Demand Law (24-week limit), it be-came the 16th state to allow abortion. Due to an extremely loose interpretation of "mental health," California also had defacto abortion-on-demand. Alaska and Hawaii had liberal laws. Laws in the other states, which included Arkansas, Colorado, Delaware, Georgia, Kansas, Maryland, Mississippi, New Mexico, North Carolina, Oregon, South Carolina and Virginia, were very restrictive, typically allowing abortion only for pregnancies due to assault rape, incest and life of the mother as well as for severe fetal handicap.

Between the passage of New York’s law in 1970 and the Supreme Court’s decision of January ’73, no more state legislatures voluntarily passed permissive abor-tion laws. Florida did because of a court order. The other 33 states debated the issue in their legislatures, and all 33 voted against permitting abortion for any reason except to save the mother’s life.

In April of ’72, New York State repealed its most permissive law. Governor Nelson Rockefeller vetoed the repeal, and the law remained in force. In the No-vember ’72 elections, however, so many pro-abortion legislators were swept out of office that the New York General Assembly had enough votes to override the governor’s veto. Plans were made to again repeal the law when that legislature reconvened in 1973. Before it could act, however, the Supreme Court handed down the Roe v. Wade decision and nothing was done.