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No doubt a contributing factor to the dramatic departure from American tradition, which had dealt harshly with pornography prior to World War II, was the President's Commission on Obscenity and Pornography, established in 1968. Although the Commission's status was purely advisory, its majority recommendation that "Federal, State, and local legislation prohibiting the sale, exhibitions, and distribution of sexual materials to consenting adults should be repealed" was simply endorsing a posture that was, to all intents and purposes, already in effect at the community level.
A second issue that the courts became involved in was abortion, with results that bear directly on the sexual morality of Americans. Again, these events are described in other chapters, but here we will briefly examine the impact on the sexual revolution of the Supreme Court decisions. In the past, policies on abortion were determined exclusively at the State level, and all States maintained antiabortion legislation, which excepted only those cases where the mother's life was threatened. As a consequence of vigorous scrutiny by the medical profession, various antiabortion groups, and the Catholic church, legal abortions were relatively rare in the United States through the forties and fifties, although illegal abortions were apparently quite numerous. As our society changed, however, and more moderate voices within the antiabortion organizations themselves emerged, the rigid definition of legalized abortion changed and became more flexible. Various States, in particular New York and Hawaii, responded by decriminalizing abortion under many previously illegal circumstances. In 1973, the Supreme Court upheld the petition of a Texas resident who had argued that her State's antiabortion law denied her constitutional right of personal privacy, on the grounds that a fetus is not a person and therefore not entitled to constitutional protection. More recently, Congress in 1977, passed the Hyde Amendment which limited federal Medicaid funds for abortions to cases of rape or incest when the crime was immediately reported to the police, and cases in which two doctors certify that a full-term pregnancy would severely endanger a woman's health.
Again, the impact of these decisions still remains to be determined, but very clearly, the Court, at least in the case of anti-abortion legislation, has associated itself with the forces of sexual change in our society.