In Delaware, abortion is still a felony. Here's why lawmakers are likely to change that

Sarah Gamard
Delaware News Journal

Delaware lawmakers want to erase a 19th-century law that classifies abortion as manslaughter and a felony.

Abortion rights advocates argue the change is necessary to protect abortion rights in case the U.S. Supreme Court overturns Roe v. Wade following last year's confirmation of Justice Amy Coney Barrett.

House Bill 31 by Majority Leader Valerie Longhurst, D-Bear, would remove a law that makes someone guilty of a felony if they perform an abortion. It would also remove the law that makes it a misdemeanor to either perform an abortion on oneself or to make or distribute substances or instruments to help an abortion.

The bill also removes a law that makes someone guilty of manslaughter if they perform an abortion that results in the woman's death.

The law does not apply to "therapeutic" abortions.

Versions of the law have been on the books in Delaware since at least 1883, according to the Legislative Librarian.

The General Assembly passed the latest version in 1972 — one year before the Supreme Court's Roe v. Wade decision gave women the right to have an abortion.

Justice Barrett replaced the late Justice Ruth Bader Ginsberg in October, giving conservatives a 6-3 majority on the Supreme Court. 

When she was a law professor in 2006, Barrett was among hundreds who signed an anti-abortion letter accompanying a newspaper ad calling for "an end to the barbaric legacy of Roe v. Wade."

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Why the law might change in Delaware

Lawmakers at the state Capitol in Delaware are looking to reverse antiquated laws that make abortion illegal.

Planned Parenthood pushed for this year's bill along with another abortion-rights organization called "She Decides."

"Even though right now I don't think the criminal code issues are enforceable, it doesn't mean that if Roe were overturned that that couldn't be a question at some point," said Ruth Lytle-Barnaby, president of Delaware Planned Parenthood.

"We want to make sure that women are not considered criminals for seeking a self-managed abortion."

Longhurst, the bill sponsor, did not respond to requests for comment.

Delaware is one of only 10 states to still have such a law on the books after most others repealed them following Roe v. Wade, according to the Guttmacher Institute, an abortion-rights think tank. The other states are mostly Republican-controlled, such as Mississippi and Alabama, but less conservative states such as Michigan and Arizona are also on the list.

States across the U.S. began passing the laws in the 19th century as physicians pushed to consolidate their power over medicine and root out traditional health care providers such as midwives, according to Elizabeth Nash, the associate director of state issues for Guttmacher Institute.

Some states like Delaware have had the law on the books years after Roe v. Wade because lawmakers are generally hesitant to tackle issues as contentious as abortion — especially since the Supreme Court has rendered such a law unconstitutional, she said.

"It's just an issue that people don't want to take up," Nash said. "People maybe didn't recognize the threat the (current) Supreme Court might pose 10 or 15 years ago."

Despite being on the books for more than a century, the law was rarely enforced.

The Delaware Criminal Justice Information System could find only two instances where someone was either found guilty of a misdemeanor for having or aiding an abortion. In another instance, someone was charged once with a felony, but no conviction followed.

In the 21st century, as Delaware has become increasingly Democratic, Republicans have tried and failed for years to restrict abortion.

Meanwhile, Democrats who rule both chambers have only doubled down on making sure women have the right to choose.

In 2017, lawmakers passed a bill asserting Roe v. Wade protections if the ruling is overturned at the federal level.

It's likely that the repeal bill will pass this year.

It cleared its first committee hearing and awaits a vote on the House floor before moving over to the Senate.

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Sarah Gamard covers government and politics for Delaware Online/The News Journal. Reach her at (302) 324-2281 or sgamard@delawareonline.com. Follow her on Twitter @SarahGamard.