The Origin Of Abortion Laws: A Historical Perspective

Abortion laws in the United States have a long and complex history. In the early days of the republic, there were no abortion laws, and abortion was a regular part of life for women. Common law allowed abortion prior to quickening, an archaic term for fetal movement that usually happens around four months into a pregnancy.

The first abortion laws in the US were passed in the mid-1800s. In 1821, Connecticut became the first state to regulate abortion, outlawing it after quickening. By 1910, abortion was banned nationwide, though wealthy white women could still travel to skirt the law and access abortions.

The 1960s saw the emergence of an abortion reform movement, and in 1973, the Supreme Court established the legal right to access abortion nationwide with its landmark decision in the Roe v. Wade case. However, abortion remains a divisive issue in the US, with ongoing battles for abortion access.

The American Medical Association's criminalization campaign

The American Medical Association (AMA) was formed in 1847 by doctors who wanted to establish themselves as the authority on medical practices. The AMA was male-dominated and its members believed they should have the power to decide when abortions could be legally performed. Notably, the AMA was composed of physicians who lacked expertise in pregnancy and reproductive health.

AMA members launched a full-fledged criminalization campaign against abortion and female abortion providers. This campaign was successful in influencing state legislatures to ban abortion. By 1880, all states had laws restricting abortion, with some exceptions if a doctor said the procedure was necessary to save the patient's life or health, or for therapeutic reasons.

The criminalization of abortion led to a growing stigma surrounding the procedure. By 1910, abortion was illegal at every stage of pregnancy in every state. These bans had some exceptions if the patient's life was in danger—a decision that only doctors, 95% of whom were men, could make.

The criminalization of abortion had devastating consequences. It pushed the practice underground, resulting in unsafe procedures that caused high death tolls. By 1930, nearly 2,700 women died from unsafe, illegal abortions—accounting for almost one out of every five recorded maternal deaths that year.

Today, the AMA has adopted a different stance, opposing the criminalization of reproductive health services and seeking expanded legal protections for patients and physicians. The organization recognizes that government intrusion into medicine and restrictions on access to safe, evidence-based reproductive health services violate human rights.

The role of the Catholic Church

The Catholic Church has consistently condemned abortion, viewing it as a grave sin and a form of murder. The Church's official teachings, promulgated by Pope John Paul II in 1992, oppose all forms of abortion procedures that aim to destroy a zygote, blastocyst, embryo, or fetus. This stance is based on the belief that human life is sacred and must be respected and protected from the moment of conception.

The Church's opposition to abortion can be traced back to early Christian teachings found in documents such as the Didache ("The Teachings of the Twelve Apostles") and the Epistle of Barnabas, which condemned both abortion and infanticide. Early Church councils and fathers, such as Basil of Caesarea, also affirmed the immorality of abortion.

Throughout history, various theologians and scholars within the Church have debated the exact moment when the embryo gains a human soul and how this should influence the classification of the sin of abortion. Figures like St. Augustine and St. Thomas Aquinas recognized the uncertainty regarding the timing of ensoulment but still firmly opposed abortion at any stage of pregnancy.

The Church's teachings on abortion have influenced secular laws and contributed to the criminalization of abortion in the 19th century. However, it is important to note that the Church's stance on abortion has remained constant, even as scientific understanding of embryology has evolved.

Today, the Catholic Church continues to actively oppose abortion through public statements and actions. While many Catholics hold differing views on abortion, the Church maintains its official position, emphasizing the sanctity of human life from conception.

The Comstock Act

The Act made it a federal offence to transport by mail or other common carriers (which today would include UPS and FedEx) "obscene" materials like pornography, contraceptives, information about contraceptives, and any article, instrument, substance, device, drug, medicine, or other thing that can be used to produce an abortion.

The Act has been amended multiple times since its enactment, most recently in 1996. While the provisions of the Act that made it a crime to use the mail to transport contraceptives or materials about contraceptive use were repealed in the early 1970s, the ban on mailing things designed to produce abortion remains.

In 2022, the Office of Legal Counsel in the Department of Justice issued a memorandum opinion that concluded that, even following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, the Comstock Act does not prohibit the mailing or delivery of abortion medications unless the sender intends that the drugs will be used unlawfully.

Some anti-abortion advocates disagree with this opinion and are attempting to use the courts and legislation to push for a broader and more literal interpretation of the Act's text. Under this interpretation, the Comstock Act would ban the mailing of anything that can be used to produce an abortion in all circumstances and in all states, which would essentially constitute a nationwide abortion ban.

The 1973 Roe v. Wade ruling

The ruling established that the right to privacy of a woman to obtain an abortion "must be considered against important state interests in regulation". The Court required the state to justify any interference with the right to access abortion by showing that it had a "compelling interest", and held that no interest was compelling enough to ban abortion before viability.

The Roe v. Wade ruling placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and freedom of religion, by conferring it the highest degree of constitutional protection, known as "strict scrutiny".

The ruling made state abortion bans unconstitutional, making abortion legal, more accessible, and safer for many pregnant people throughout the country.

The 2022 overturning of Roe v. Wade

The case that led to the overturning of Roe v. Wade was Dobbs v. Jackson Women's Health Organization. The Supreme Court agreed to review this case in its October 2021 term, and the official decision was issued in June 2022. The case centred around a Mississippi state law that banned most abortions after 15 weeks of pregnancy, well before the point of fetal viability. This law was plainly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, but Mississippi lawmakers passed it anyway, hoping that it would eventually make its way to the Supreme Court and be upheld.

The leaked draft opinion for Dobbs v. Jackson Women's Health Organization, written by Justice Samuel Alito, indicated that the Court had voted to uphold the Mississippi law and overturn Roe v. Wade and Planned Parenthood v. Casey. This draft was leaked to a political news publication in May 2022, in an extraordinary breach of the Court's secrecy. The official opinion released by the Supreme Court in June was largely the same as the draft, with Justice Alito arguing that the right to privacy is not guaranteed in the Constitution and that the right to abortion is not "deeply rooted in the Nation's history and tradition".

The overturning of Roe v. Wade has had far-reaching consequences for abortion regulation in the United States. Thirteen states had "trigger laws" that immediately banned abortion, and several states have since passed new abortion restrictions. On the other hand, some states have moved to expand or cement abortion rights, including through constitutional amendments. The regulation of abortion is now decided on a state-by-state basis, with abortion remaining legal in certain states and banned in others.

The overturning of Roe v. Wade has also raised questions about other privacy rights, such as those related to birth control and sex. It remains to be seen how the decision will affect public opinion of the Supreme Court, given that recent polls show that 80% of Americans support the right to abortion in at least some circumstances.

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