Abortion's Legal History: A Complex And Controversial Journey

Abortion laws have never been more contentious in the U.S. than they are now. However, for the first century of the country's existence, abortion was a relatively uncontroversial fact of life. From the colonial days until the mid-1800s, abortion was a regular part of life for women and was legal until quickening – when the foetus's movement could be felt by the mother.

The first anti-abortion movement in the U.S. was driven by physicians on a mission to regulate medicine. The American Medical Association, formed in 1847, campaigned to end abortion and state legislatures moved to ban it. By 1910, abortion was banned nationwide. However, wealthy white women could still travel to skirt the law and access abortion while other people could not.

In the 1960s, a nationwide effort was underway to reform abortion laws in nearly every state. 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 U.S. politics and culture wars, with states passing more than 1,300 abortion restrictions since Roe v. Wade.

The American Medical Association's criminalization campaign

The American Medical Association (AMA) was formed in 1847 and became the male-dominated authority on medical practices. The AMA was composed of physicians who lacked expertise in pregnancy and reproductive health. Despite this, AMA members believed they should have the power to decide when an abortion could be legally performed.

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

The criminalization of abortion led to a growth in stigma surrounding the procedure. By 1910, abortion was not only restricted but outright illegal at every stage of pregnancy in every state in the country. These abortion bans had some exceptions in instances to save the patient's life—a decision that only doctors, 95% of whom were men, had the power to make.

The criminalization of abortion also had deadly consequences. In 1930, unsafe, illegal abortions caused the deaths of nearly 2,700 women—almost one out of every five recorded maternal deaths that year, according to the Guttmacher Institute.

The AMA continues to oppose the criminalization of reproductive health services and has stated that "government intrudes into medicine and impedes access to safe, evidence-based reproductive health services, including abortion and contraception."

The 1880s: Criminalization and Vilification

In the 1880s, abortion was criminalized across the United States, marking the start of a "century of criminalization" that would only end in 1973 with Roe v. Wade. This period saw the stigmatization of abortion grow as laws restricting access became the norm.

By 1880, all states had laws restricting abortion, with some exceptions in certain states if a doctor deemed the procedure necessary to protect the life or health of the patient, or for therapeutic reasons. This criminalization of abortion was driven by a male-dominated American Medical Association (AMA), which sought to exert control over reproductive healthcare. The AMA was composed of physicians lacking expertise in pregnancy and reproductive health, and its members launched a full-fledged criminalization campaign against abortion and female abortion providers.

The criminalization of abortion in the 1880s was part of a broader backlash against reproductive freedom that had roots in racism and patriarchy. Prior to the Civil War, reproductive care, including abortion, was provided by skilled midwives, nurses, and other unlicensed women healthcare providers, many of whom were Black, Indigenous, or white. During the 1860s, a number of states passed anti-abortion laws, which, after 1860, became stronger and more vigorously enforced. As a result, many women turned to illegal, underground abortion services.

The criminalization of abortion in the 1880s set in motion a decades-long trend towards restricting abortion access and stigmatizing those who sought or provided abortions. This period marked a significant shift in the history of reproductive healthcare in the United States, with far-reaching consequences for women's health and autonomy.

Abortion bans nationwide

Abortion bans have been a highly contested issue in the United States for decades. While abortion was a regular part of life for women in the country for much of its history, the mid-1800s saw the emergence of laws restricting and criminalizing the procedure. By 1910, abortion was banned nationwide, marking the culmination of a "century of criminalization".

The history of abortion bans in the US is deeply rooted in white supremacy and patriarchal strongholds. During the period of slavery, enslaved Black women were prohibited from having abortions as they were considered valuable property. Even after the abolition of slavery in 1865, societal control over Black women's bodies persisted, and abortion bans continued to disproportionately impact marginalized communities.

The push for abortion bans was led by a coalition of male doctors, with support from the Catholic Church and others seeking to control women's bodies. This movement aimed to consolidate power in the hands of wealthy, white men by taking authority away from female-dominated professions, such as midwifery. As a result, abortion became criminalized and stigmatized, driving the practice underground and resulting in unsafe procedures that caused high maternal death tolls.

The first federal law banning abortion was passed in 2007, with the Supreme Court upholding this legislation and setting a precedent for political interference in reproductive health care decisions. In 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, eliminating federal protections for abortion rights and allowing individual states to impose regulations on abortion.

Currently, abortion is illegal in several states with limited exceptions, while other states have enshrined the right to abortion into their state constitutions. The Republican Party has largely supported abortion restrictions, with the latest budget endorsing a national abortion ban with zero exceptions. In contrast, the Democratic Party has generally defended access to abortion and worked to expand reproductive rights.

The ongoing battle over abortion access in the US underscores the deep ideological divide surrounding this issue, with far-reaching implications for the health and autonomy of individuals, particularly those from marginalized communities.

Deaths from illegal, unsafe abortions

Deaths from unsafe abortions have been a significant issue throughout history, with the practice causing a high death toll. In 1930, nearly 2,700 women died from unsafe abortions, accounting for almost one out of every five recorded maternal deaths that year. In the 1940s, records show that more than 1,000 women died each year from unsafe abortions, many of which were self-induced.

Unsafe abortions continue to be a major cause of injury and death among women worldwide. It is estimated that nearly 25 million unsafe abortions take place annually, resulting in at least 22,800 deaths and millions of injuries. The methods used for unsafe abortions include drinking toxic fluids, inflicting direct injury to the vagina or uterus, and using unsterilised instruments. These practices can lead to severe complications such as infection, haemorrhage, uterine perforation, and damage to internal organs.

The risk of death from unsafe abortions is significantly higher in developing countries, where access to safe and legal abortions is limited. In these regions, the death rate from unsafe abortions is >200/100,000 abortions, compared to <1/100,000 for safe abortions. The World Health Organization (WHO) estimates that every eight minutes, a woman in a developing country dies from complications arising from an unsafe abortion.

Restrictive abortion laws have been linked to higher rates of unsafe abortions and related deaths. In countries with more restrictive laws, abortion-related deaths can be as high as 34 per 100,000 childbirths, compared to 1 or fewer per 100,000 childbirths in countries with less restrictive laws. The legalisation of abortion and improved access to safe abortion services are crucial steps towards reducing maternal mortality and morbidity associated with unsafe abortions.

The 1960s: Abortion law reform

The 1960s saw the beginnings of a nationwide effort to reform abortion laws in the United States. The movement was sparked by a 1955 conference on abortion legalization, held by Planned Parenthood in response to alarming media coverage of unsafe, illegal abortions. The conference attendees, including doctors, publicly called for abortion law reform, stating that laws should allow doctors more freedom to provide abortion services, which would improve public health and access to reproductive healthcare.

In 1964, abortion law reform activists registered their first national group: the Association for the Study of Abortion (ASA). Planned Parenthood joined doctors and laypeople in advocating for abortion law reforms and studies to advance abortion procedure safety. The ASA advocated for "medically necessary" abortions, while members of the larger abortion law reform movement wanted a full repeal to legalize abortion for all.

In 1966, David Steel introduced the Abortion Bill into the British Parliament. It passed into law on 27 October 1967 and came into effect on 27 April 1968. The issues that motivated the campaign for reform were the prevention of handicap and social justice.

In 1966, the Trial of the San Francisco Nine took place. Nine well-respected doctors were sued in California for performing abortions on women who had been exposed to rubella, a disease known to cause birth defects. Doctors across the country came to their defence, and this resulted in one of the first abortion reform measures in the US. California amended its prohibition on abortion to allow hospital committees to approve requests.

In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or where pregnancy would lead to permanent physical disability of the woman. Similar laws were soon passed in California, Oregon, and North Carolina.

In 1969, the National Association for the Repeal of Abortion Laws (NARAL) was established in Chicago. NARAL was the first national group created solely to campaign for the legalization of abortion.

By the late 1960s, a nationwide effort was underway to reform abortion laws in nearly every state. Between 1967 and 1973, four states (Alaska, Hawaii, New York, and Washington) repealed their abortion bans entirely, while 13 others enacted reforms that expanded exceptions. These exceptions included cases where a pregnancy was dangerous for the physical or mental health of a patient, fetal abnormalities, and when the pregnancy resulted from rape or incest.

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