Abortion Law: Understanding The Past And Present

Abortion laws have changed over time and vary across countries and territories. Abortion was a regular part of life for women in America until the mid-1800s, when it was outlawed. In the 1960s, abortion law reform began, 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 continues to be a controversial and divisive issue in politics and culture wars, with some states seeking to restrict or criminalize it.

Abortion laws can range from abortion being freely available on request to outright prohibition in all circumstances. Many countries and territories that allow abortion have gestational limits, with the majority allowing abortion on request up to 12 weeks, up to 24 weeks for rape, incest, or socioeconomic reasons, and more for fetal impairment or risk to the woman's health or life. As of 2024, countries that legally allow abortion on request or for socioeconomic reasons comprise about 60% of the world's population.

Abortion is one of the safest medical procedures if done following the World Health Organization's guidance. However, it can be dangerous and even life-threatening when performed unsafely or illegally. The more restrictive the abortion law, the more it is flouted, and the more women resort to unsafe abortions, which can lead to fatal consequences such as maternal deaths and disabilities.

The decriminalization of abortion involves removing specific criminal sanctions and changing laws, policies, and regulations to ensure that safe abortion is accessible and affordable for those who need it. This includes not punishing anyone for providing or having an abortion and treating abortion like any other form of healthcare.

The road to law reform and achieving the right to safe abortion can be long and challenging, but it is crucial to study the political, health system, legal, and socio-cultural realities surrounding existing laws and policies to determine the best course of action.

The criminalisation of abortion

Abortion was criminalised in the US in the late 1800s, with the formation of the American Medical Association (AMA) in 1847. The AMA was male-dominated and scrutinised the work of female reproductive health workers, like midwives and nurses, and the obstetric services they provided were phased out. AMA members believed they should be the ones to decide when an abortion could be legally performed.

The AMA launched a full-fledged criminalisation campaign against abortion and female abortion providers. State legislatures moved to ban abortion, and by 1880, all states had laws to restrict it. By 1910, abortion was illegal at every stage of pregnancy in every state. These bans had some exceptions in instances to save the patient's life, but this was a decision that only doctors, 95% of whom were men, had the power to make.

The decriminalisation of abortion

The first country to reform its abortion law was the Soviet Union, spurred by feminist Alexandra Kollantai, through a decree on women’s health care in October 1920. In the US, abortion was decriminalised in 1973, with the landmark Roe v. Wade case.

The current situation

Despite the decriminalisation of abortion, it remains a divisive issue in politics and culture wars, with varying laws in different states. In 2022, Roe and Casey were overturned in Dobbs v. Jackson Women's Health Organization, ending protection of abortion rights by the US Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.

The way forward

The social stigma of abortion

Abortion stigma is the set of attitudes and beliefs that abortion is bad, shameful, or wrong. It is a powerful force that shapes the environment in which abortion is delivered and received and can have important implications for the quality of abortion care. Even in countries where abortion is legal, it might be difficult to access because of factors like cost, distance to services, social stigma, or religiously reinforced conservative attitudes.

Abortion stigma is about the "transgression of a gendered norm", or the social expectations imposed on women, people assigned female at birth, and people with feminine gender expressions. These norms include the expectation of sexual purity, or sexuality reserved for reproduction, and the expectation of motherhood and nurturing. Having an abortion shows that someone had sex and did not become a parent. Abortion marks their rejection of specific gendered norms about sex, gender, and parenting.

Anti-abortion messages contribute to abortion stigma, too. It’s very common, including among supporters of abortion, to feel uncomfortable or uncertain about when, why, and at what point in pregnancy it is ok to have an abortion. That discomfort is internalized abortion stigma. The only person who can decide when to have an abortion is the person who’s pregnant. They have the legal and moral right to decide for themselves whether to have an abortion.

Abortion stigma is powerful, but it can be combated. People can take action to help reduce abortion stigma, such as using inclusive language when writing about abortion, interviewing abortion storytellers, and sharing their own abortion stories.

The history of abortion stigma

The stigmatization of abortion in the United States can be traced back to the late 1800s when doctors, who were mostly men and lacked expertise in pregnancy and reproductive health, banded together to form the American Medical Association (AMA) and launched a full-fledged criminalization campaign against abortion and female abortion providers. State legislatures moved to ban abortion, and by 1910, abortion was not only restricted but outright illegal at every stage in pregnancy in every state in the country.

As abortion became criminalized, the stigma surrounding it grew. This "century of criminalization" was ended by Roe v. Wade in 1973, which protected the right to abortion in all 50 states, making abortion services safer and more accessible throughout the country.

The impact of abortion stigma

Abortion stigma has important implications for the quality of abortion care and can serve as a barrier to safety and quality. It can lead to poor treatment of abortion seekers by health care personnel, judgment and insensitivity from providers, and a lack of empathy and insensitivity toward abortion seekers. It can also lead to clandestine or unsafe abortions, which can have fatal consequences.

Abortion stigma also affects abortion providers, who may face stigmatization, physical and verbal attacks, intimidation, and threats.

The history of abortion law

Ancient Times to the Early 19th Century

Abortion, or induced abortion, has been known and practised since ancient times, with various methods used to perform the procedure. In ancient times, abortion was not criminalised and was a regular part of life for women. In the British colonies, abortion was legal before "quickening", which is an archaic term for fetal movement that usually occurs around four to five months into a pregnancy. During this time, abortion services were often provided by midwives, nurses, and other unlicensed women's health care providers, who were trusted and legitimate medical professionals.

The Mid-19th Century to Early 20th Century

In the mid-19th century, abortion began to be outlawed in the United States and Britain. This change was driven by physicians who wanted to regulate medicine and take control of the profitable business of childbirth from midwives. The American Medical Association (AMA), established in 1847, campaigned to end abortion, asserting that there was a medical consensus that life begins at conception rather than at quickening. As a result, at least 40 anti-abortion laws were enacted in the US between 1860 and 1880, with abortion becoming outlawed in most states by 1880. However, some doctors continued to perform abortions, especially during the Depression era when they could understand why women would not want a child.

The Late 19th Century to Mid-20th Century

During this period, abortion remained largely illegal in the US and was increasingly restricted. However, safe and legal abortions were still accessible to privileged women, particularly those who were well-to-do. The criminalisation of abortion led to the emergence of illegal underground abortion services, which often put women's health and lives at risk. Many women, especially those from marginalised communities, suffered complications or died due to unsafe and illegal abortions.

The Mid-20th Century to Present

The feminist movement of the 1960s played a crucial role in advocating for abortion law reform and challenging criminal abortion laws. The Clergy Consultation Service on Abortion, a network of concerned pastors and rabbis, set up referral services to help women access safe illegal abortions. The 1960s also saw the emergence of early second-wave feminist groups, such as the Abortion Counselling Service of the Chicago Women's Liberation Union, which provided safe and inexpensive illegal abortions.

In 1973, the US Supreme Court's landmark ruling in Roe v. Wade legalised abortion nationwide, recognising a person's fundamental "right of privacy... founded in the Fourteenth Amendment's concept of personal liberty." This ruling allowed states to impose some restrictions on abortion to protect maternal health in the second trimester and to ban abortion during the third trimester. However, the Roe v. Wade decision also galvanised opposition to abortion and mobilised anti-abortion groups. Since then, the abortion debate has become increasingly polarised, with the issue becoming a partisan one. Despite the legalisation of abortion, many women still face barriers in accessing safe and legal abortion care, particularly those from marginalised communities.

The decriminalisation of abortion

• Not punishing anyone for providing a safe abortion
• Not punishing anyone for having an abortion
• Not involving the police in investigating or prosecuting safe abortion provision or practice
• Not involving the courts in deciding whether to allow an abortion
• Treating abortion like any other form of healthcare

Historically, restrictions on abortion were introduced for three main reasons:

• To protect women's health, as abortion could be dangerous and abortionists were causing many deaths
• To act as a deterrent and punish those who were considered to be sinning or transgressing morality by having an abortion
• To protect fetal life

Today, abortion is one of the safest medical procedures if done following the World Health Organization's (WHO) guidance. However, it can still be dangerous and cause serious health complications when performed unsafely. Therefore, the decriminalisation of abortion aims to ensure that everyone can access safe abortions without fear of legal repercussions.

The road to decriminalisation can be long and difficult, but it is possible to achieve positive change. For example, in 2005, Ethiopia liberalised its abortion law, allowing abortion in cases of rape, incest, or fetal impairment, as well as to protect the life and physical and mental health of the woman. This was a significant step forward for sub-Saharan Africa, and while there were initial challenges with implementation, the proportion of abortions provided in health facilities almost doubled between 2008 and 2014.

Another example is France, which reformed its abortion law in 2014, 2015, and 2016 to increase access to abortion and reduce barriers. These reforms included removing the requirement for women to be in a "state of distress" to request an abortion and eliminating the seven-day "reflection period" between the request and the procedure. As a result, most abortions in France now take place before 12 weeks, and almost none occur after 18 weeks.

The future of abortion law

In recent years, there has been a growing push to restrict abortion access, with some states seeking to criminalize abortion or ban abortions after six weeks, before many women even know they are pregnant. Other states have introduced legislation to restrict abortions after 15 or 20 weeks, denying pregnant individuals health information about their fetus and the option to terminate the pregnancy. There are also requirements in some states for doctors to provide false or misleading information, as well as mandatory ultrasounds. Additionally, some states are waiting for the opportunity to implement further restrictions, while others are challenging harmful laws in the appellate phase, with some cases headed to the Supreme Court.

On the other hand, some states have taken steps to protect and expand abortion rights. For example, California has a State Constitutional protection and the Freedom of Choice Act of 2002, which states that "every woman has the fundamental right to choose to bear a child or to choose to obtain an abortion". California has also increased access to abortion by allowing nurse practitioners, physician assistants, and nurse-midwives to provide this critical and safe service. Other states, such as Alaska, Illinois, Michigan, Minnesota, North Dakota, Ohio, and Vermont, have also enshrined the right to abortion in their state constitutions.

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