Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz in the Dock & Defrocked

Abstract

In the late 1800's and early 1900's the United States Supreme Court twice upheld the validity and enforcement of state laws denying medical licensure to physicians who had performed abortions that were then considered unlawful and criminal. The cases were Hawker v. New York in 1898 and Missouri ex rel. Hurwitz v. North in 1926. These decisions were indisputably relevant, but were never cited during the litigation that culminated with the abortion cases of 1973.

It appears that counsel opposing the constitutional decriminalization of abortion and the dissenting Justices White and Rehnquist all overlooked Hawker and Hurwitz. The full records, briefs, and arguments of these two early cases are in the Library of Congress, Madison Building, and National Archives in Washington, D.C. and in other major law libraries.