The History Of Abortion Laws: A Complex Legal Journey

Abortion laws vary widely across the world, ranging from abortion being freely available on request to outright prohibition in all circumstances. Many countries that allow abortion have gestational limits for the procedure, with the majority being up to 12 weeks for abortion on request, up to 24 weeks for rape, incest, or socioeconomic reasons, and more for foetal impairment or risk to the woman's health or life.

In the United States, abortion laws vary from state to state. From the American Revolution to the mid-19th century, abortion was not a significant issue of controversy. However, in 1821, Connecticut became the first state to regulate abortion, outlawing it after quickening. Many states followed suit and passed various abortion laws.

In 1973, Roe v. Wade decriminalized abortion nationwide, imposing a federally mandated uniform framework for state legislation on the subject. However, in 2022, Roe v. Wade was overturned by Dobbs v. Jackson Women's Health Organization, allowing individual states to regulate abortion.

The criminalization of abortion in the US in the 1800s

In the early 1800s, abortion was widely accepted in the US, with laws in British colonies permitting the procedure before "quickening", the point at which a pregnant person feels the fetus move, generally around four or five months into a pregnancy. However, as the century progressed, a growing women's rights movement and the increasing involvement of male doctors in gynecological practices led to a shift in societal attitudes towards abortion. Male doctors, who lacked expertise in pregnancy and reproductive health, sought to exert control over childbirth and undermine the authority of midwives, who were predominantly women. This power dynamic, combined with the influence of the Catholic Church and other religious groups, led to a series of anti-abortion laws being passed in the 1860s. These laws were often ambiguous and difficult to enforce, but they marked the beginning of a "century of criminalization", which ended with the Roe v. Wade ruling in 1973.

By the late 1800s, most states had laws restricting abortion, and the stigma surrounding the procedure grew. This period also saw an increase in immigration, particularly of Catholic immigrants, which fueled fears about the loss of white, Protestant dominance in the country. White men in power supported abortion bans as a way to encourage white, upper-class women to have more children and maintain their social standing. Additionally, the eugenics movement stoked fears of a loss of white identity, further contributing to the push for criminalization.

The criminalization of abortion had a significant impact on access to reproductive healthcare, particularly for women of color and those from lower socioeconomic backgrounds. While wealthy white women could still access abortions by traveling to other states or countries, women without financial means were often left with no choice but to resort to dangerous, illegal abortions, putting their health and lives at risk.

The American Medical Association's role in the criminalization of abortion

The American Medical Association (AMA) has played a significant role in the history of abortion criminalization in the United States. In 1857, the AMA initiated the anti-abortion movement, aiming to centralize reproductive health decisions in the hands of physicians, taking control away from midwives, homeopaths, and female physicians. This movement was driven by racist and xenophobic sentiments, claiming that abortions by non-physicians would lead to a decrease in birth rates among White Protestant families and overpopulation by minorities. As a result, abortion was criminalized at every stage, except when deemed medically necessary by a physician. This restricted access to reproductive health services, pushing women, especially women of color, to seek unsafe alternatives.

In the late 20th century, social activism shifted towards women's rights and sparked a pro-choice movement. The Supreme Court's ruling in Griswold v. Connecticut in 1965 protected reproductive decisions regarding contraception under the Constitution's right to privacy. This, along with changing attitudes in individual states, led to the landmark Roe v. Wade case in 1973, where the Supreme Court struck down Texas' abortion ban, legalizing abortion nationwide.

Despite the federal protection of Roe v. Wade, abortion access remained inconsistent across states, with varying restrictions and requirements. In 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, ending federal protection for abortion rights and allowing states to dictate abortion access. The AMA opposed this decision, stating that abortion is a medical matter between the patient and physician, subject to clinical judgment and informed consent. The AMA has since bolstered its opposition to the criminalization of reproductive health services, advocating for expanded legal protections for patients and physicians against government intrusion and punitive measures.

The AMA's current position recognizes reproductive health services as a human right and opposes limitations on access to evidence-based care. It seeks to protect patients and physicians from criminal and civil penalties for receiving, assisting, or providing reproductive health services. The organization continues to advocate for broad and equitable access to abortion care and abortion training for medical professionals.

The stigmatization of abortion

The movement to criminalize abortion was driven by a combination of moral opposition and concerns about the dangers of the procedure. At the time, abortion was often performed by non-medical personnel, leading to unsafe conditions and putting women's health at risk. This resulted in a high death toll, with nearly 2,700 women dying from illegal and unsafe abortions in 1930 alone.

The stigmatization and criminalization of abortion also had racial and social implications. By 1910, when abortion was illegal across the US, white men in power supported these bans as a way to encourage upper-class white women to have more children and maintain their hold on the country.

Additionally, the stigmatization of abortion has led to social and economic barriers that hinder people's ability to exercise their reproductive rights. These include the cost of the procedure, distance to services, and social stigma or religiously reinforced conservative attitudes. As a result, people may be forced to resort to unsafe abortions, which can have fatal consequences.

To address the stigmatization of abortion, it is essential to recognize abortion as a human right and work towards guaranteeing access to safe and legal abortion services worldwide. This includes addressing the social, cultural, and economic barriers that make it difficult for people to exercise their reproductive rights.

The Roe v. Wade ruling

Roe v. Wade ruling

The case was argued on December 13, 1971, and reargued on October 11, 1972, before the Supreme Court. On January 22, 1973, the Supreme Court, in a 7-2 decision, ruled that the Texas criminal abortion statutes were unconstitutional. The Court held that the right to privacy, rooted in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, protected a woman's decision to terminate her pregnancy.

The Court recognized that a State may impose some restrictions on abortion procedures to safeguard maternal health and protect potential life, but only if these restrictions do not pose an "undue burden" on the woman seeking the abortion. The Court also established a trimester framework to guide judges and lawmakers in balancing the mother's health against the viability of the fetus. In the first trimester, the woman has the exclusive right to an abortion, not subject to any state intervention. In the second trimester, the state can intervene if the woman's health is at risk. After the fetus becomes viable, the state can restrict or even ban abortions except when necessary to protect the mother's health or life.

The Dobbs v. Jackson Women's Health Organization ruling

The Supreme Court granted certiorari to Dobbs v. Jackson Women's Health Organization in May 2021, and oral arguments were heard in December 2021. In a leaked draft majority opinion for Dobbs, written by Justice Samuel Alito, it was revealed that a majority of the Court had agreed to overturn Roe v. Wade and Planned Parenthood v. Casey.

On June 24, 2022, the Supreme Court officially overruled both Roe and Casey in the Dobbs case on originalist grounds that a right to abortion cannot be found in the U.S. Constitution. The Court's decision returned the issue of abortion regulation to the elected branches, allowing individual states to regulate any aspect of abortion not preempted by federal law.

In the Dobbs ruling, the Court explained that the Constitution makes no express references to abortion and that Court precedent holds that a state regulation of abortion is not a sex-based classification. The Court further established that abortion is not deeply rooted in the Nation's history and traditions. The Court noted that, at the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy.

The Dobbs ruling also explained that "the people of various states" may evaluate the interests between "potential life" and "a woman who wants an abortion" differently than the Court. The Court concluded that abortion is not part of a broader entrenched right and that justifying this premise "proves too much." Linking abortion to a right to autonomy or to "define one's concept of existence" would also license fundamental rights to "illicit drug use, [or] prostitution."

Now that abortion is not awarded the status of a fundamental right, rational-basis review is the standard used when looking at state abortion regulations that undergo a constitutional challenge. Essentially, states may regulate abortion "for legitimate reasons," and if those laws are challenged under the Constitution, they are entitled to "a strong presumption of validity."

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