Abortion Laws Pre-Roe: A Historical Perspective

Abortion laws in the United States have varied widely throughout history. From the American Revolution to the mid-19th century, abortion was not a significant issue of controversy. Most people held the traditional Protestant Christian belief that personhood began at quickening, which usually occurs between 18 and 21 weeks. It was legal prior to quickening in every state under common law.

In the 1850s, the American Medical Association came out against abortion, and the Catholic Church soon followed. Congress then passed the Comstock Act, which prohibited the distribution of contraceptives and abortion-inducing drugs through the mail. By the 1880s, abortion was outlawed nationwide. However, this did not stop abortions from being performed, and many women turned to unlicensed practitioners, which led to a high death toll.

In the 1960s, the women's rights movement and targeted litigation efforts led to Hawaii becoming the first state to legalize abortion, followed by New York, Alaska, and Washington. In 1973, the Supreme Court case Roe v. Wade established the legal right to access abortion nationwide. This decision set a precedent that affected dozens of subsequent Supreme Court cases and led to abortion services becoming safer and more accessible throughout the country.

Abortion was generally legal in the US until the mid-1800s

In the mid-19th century, abortion was legal in the US, at least during the first trimester, before a woman could feel the foetus moving. However, things began to change in the 1850s when the American Medical Association (AMA) came out against abortion. The AMA was composed of physicians who lacked expertise in pregnancy and reproductive health. They believed that they should have the power to decide when an abortion could be legally performed and launched a full-fledged criminalization campaign against abortion and female abortion providers.

By 1880, all states had laws to restrict abortion, with exceptions in some states if a doctor said an abortion was needed to save the life or health of the patient, or for therapeutic reasons. 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 in the US was driven by a coalition of male doctors, with the support of the Catholic Church and others who wanted to control women's bodies. The male-dominated medical profession wanted to take authority from the female-dominated profession of midwives, who were trusted, legitimate medical professionals.

The American Medical Association and the Catholic Church were both against abortion

The American Medical Association (AMA) was formed in 1847 and became the male-dominated authority on medical practices. The AMA believed that it should have the power to decide when an abortion could be legally performed. However, the AMA was composed of physicians who lacked expertise in pregnancy and reproductive health. The AMA launched a full-fledged criminalization campaign against abortion and female abortion providers, and state legislatures moved to ban abortion. This campaign resulted in a "century of criminalization," which was only ended by Roe v. Wade in 1973.

The Catholic Church has opposed all forms of abortion procedures since the 1st century, as it holds that "human life must be respected and protected absolutely from the moment of conception." The Church teaches that "from the first moment of his existence, a human being must be recognized as having the rights of a person – among which is the inviolable right of every innocent being to life." This belief is based on the idea that "human life must be respected and treated as a person from the moment of conception."

The Church's position on abortion is further supported by its interpretation of the natural law and the written Word of God, as well as the Church's Tradition and the ordinary and universal Magisterium. According to the Church, abortion is always seriously immoral because, as persons, the right to life is the most basic and fundamental right that we possess. The Church does, however, recognize as morally legitimate certain acts that indirectly result in the death of the fetus, such as the removal of a cancerous womb.

While many Catholics hold views on abortion that differ from the official position of the Catholic Church, the Church's hierarchy campaigns against abortion and its legalization in all circumstances. The Church considers the destruction of any embryo to be equivalent to abortion and, therefore, opposes embryonic stem cell research. Catholics who procure a completed abortion are subject to a latae sententiae excommunication, which means that the excommunication is incurred automatically when the delict is committed.

In summary, both the American Medical Association and the Catholic Church have historically opposed abortion and worked to restrict access to abortion services. The AMA's criminalization campaign and the Church's doctrinal teachings have had significant influences on abortion laws and public opinion.

The Comstock Act banned the distribution of abortion-inducing drugs through the mail

The Comstock Act, passed in 1873, is a series of provisions in federal law that criminalize the involvement of the United States Postal Service and common carriers in conveying "obscene, lewd, or lascivious" materials, crime-inciting matter, or certain abortion-related matter. The Act was named for its chief proponent, the "anti-vice crusader" Anthony Comstock.

The Act banned the mailing of "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. 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 abortions remains in place.

The Comstock Act has been amended multiple times since its enactment and is largely codified across title 18 of the United States Code. While the Act does not criminalize obscenity, criminal incitement, or abortion directly, it criminalizes the use of the mail, a common carrier, or an interactive computer service in the conveyance of these materials.

The Act has been the focus of increased legal, political, and media attention as actors in the US anti-abortion movement seek to utilize it to restrict abortion access following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022). The majority of the Act can be found in sections 1461 through 1463 of chapter 71, title 18 of the United States Code.

There are two elements to an offense under section 1461. First, it must relate to either obscene or abortion-causing purposes. Second, a person must knowingly mail, cause to be mailed, or remove from the mail, anything specified. This includes:

• An article designed, adapted, or intended for obscene or abortion-causing purposes.
• An article advertised or otherwise described in a manner calculated to lead to its application for obscene or abortion-causing purposes.
• Mail matter giving information on where or how an article designed, adapted, intended for use, or described for obscene or abortion-causing purposes may be obtained or made.
• Mail matter giving information on where or how an act or operation for abortion may be procured or produced.
• Mail matter advertising or representing whether or how an article may be applied for obscene or abortion-causing purposes.
• Mail matter calculated to incite the use of an article for obscene or abortion-causing purposes.

There are several implications to these specifics listed in 18 U.S.C. § 1461. Firstly, this section outright criminalizes activities related to the mailing of three categories of objects and, to this extent, has been upheld as constitutionally valid by the Supreme Court. Secondly, this section criminalizes activities related to the mailing of information providing details on where or how an article, already criminalized from being mailed outright, may be obtained or made. Thirdly, laws prohibiting the conveyance of material providing information on the procurement of legal abortion were ruled unconstitutional on First Amendment grounds in Bigelow v. Virginia (1975).

The second primary section of the Comstock Act is codified in section 1462 of chapter 71, title 18, United States Code. It was initially enacted under the Criminal Code Act of 1909. The punishment for a violation of section 1462 is identical to that provided for violating section 1461. There are also two elements to an offense under this section. First, the matter in question has to be of the nature described. Second, a person must knowingly commit any of the specified acts (which in this section includes import, carriage in interstate or foreign commerce, or receipt of the specified material) and implicate in connection either the US mail, a common carrier, or an interactive computer service.

Section 1462 differs from section 1461 in that its scope expands to cover the use of a common carrier or interactive computer service. Section 1461 only applies to the US Mail, while section 1462 covers both that and a private package delivery service such as United Parcel Service or Federal Express. An interactive computer service generally includes an internet website. Another difference is that section 1462 is more limited in scope than section 1461, as it describes three particular matters instead of seven. The three matters specified in 18 U.S.C. § 1462 are:

• An obscene article (including a 'thing capable of producing sound' or a 'motion picture film').
• An article designed, adapted, or intended for obscene or abortion-causing purposes.
• Mail matter giving information on where or how an article (either designed, adapted, intended for use, or described for obscene or abortion-causing purposes) may be obtained or made.

The final Comstock Act provision in chapter 71, title 18, United States Code, found at section 1463, concerns mailing any of the matters mentioned in section 1461 or 1462 on the outside of a mail piece. A violation of this section carries a jail term of up to 5 years, a fine, or both as a penalty.

There is one section of the Comstock Act found in title 18, United States Code, which is outside chapter 71. This is 18 U.S.C. § 552, and pertains to customs officials acting as principal to certain activity. For abortion-related matter, this section applies to the extent of implicating the procurement of abortion.

There are four elements to an offense under this section. First, one must be either an officer, employee, or agent of the United States. Second, one must knowingly aid or abet any of the specified offenses (importing, advertising, dealing, exhibiting, sending, or receiving). Third, the knowing aiding or abetting by an officer, employee, or agent of the United States must implicate the use of the mail. Fourth, the offense must implicate any of the matters specified, including articles containing means for procuring abortion.

In addition to the criminal importation provisions under section 1462, there is also a civil forfeiture provision of the Comstock Act. This provision subjects certain matters to civil forfeiture and provides a number of exceptions. These exceptions include items imported without the importer's knowledge, bulk abortion-related materials not intended for unlawful use, classic books of recognized merit when permitted by the Secretary of the Treasury, and lottery tickets printed in Canada after 1993 for use in lotteries within the United States.

The Comstock Act has been referred to as a "zombie law" due to its age, but it remains just as effective as any other federal law unless repealed or amended. The Act has had some prosecutions in recent years, though enforcement has shifted from obscenity generally to primarily being a tool in securing child pornography convictions.

The 1973 Roe v. Wade case established the constitutional right to abortion

Background

Abortion was a common practice in the history of the United States and was not always controversial. Before the 19th century, abortion was generally legal in the United States, at least during the first trimester, before the "quickening" of the fetus, when a woman could feel the fetus moving. However, things began to change in the 1850s when the American Medical Association (AMA) came out against abortion. The Catholic Church soon followed suit, banning abortion as well.

Criminalization of Abortion

In the mid-19th century, abortion was outlawed in every state. By 1880, all states had laws restricting abortion, with some exceptions if a doctor deemed it necessary to save the life or health of the patient or for therapeutic reasons. As abortion became criminalized, the stigma surrounding it grew. By 1910, abortion was not only restricted but outright illegal at every stage of pregnancy in every state. These abortion bans had some exceptions in instances where the patient's life was in danger—a decision that only doctors, 95% of whom were men, had the power to make.

Unsafe, Illegal Abortions

The criminalization of abortion pushed the practice underground, resulting in a high death toll. Unsafe, illegal abortions caused the deaths of nearly 2,700 women in 1930—almost one out of every five recorded maternal deaths that year.

The Road to Roe v. Wade

In the 1950s and 1960s, thousands of pregnant women took a drug called thalidomide, which was later found to cause severe birth defects. In 1962, a pregnant TV host who had ingested thalidomide was unable to obtain a legal abortion in the United States and had to travel to Sweden to terminate her pregnancy. The media coverage of this incident brought greater support for abortion law reform.

In 1964, abortion law reform activists registered their first national group: the Association for the Study of Abortion (ASA). In the late 1960s, a nationwide effort was underway to reform abortion laws in nearly every state. By 1970, Hawaii had become the first state to legalize abortion, followed by New York, Alaska, and Washington.

Roe v. Wade

In 1973, the U.S. Supreme Court ruled in Roe v. Wade that the due process clause of the 14th Amendment to the Constitution protects the right to abortion. The Supreme Court recognized for the first time that the constitutional right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade protected the right to abortion in all 50 states, making abortion services safer and more accessible throughout the country.

Impact of Roe v. Wade

The decision in Roe v. Wade set a legal precedent that affected dozens of subsequent Supreme Court cases. It established a minimal period during which abortion is legal, with varying restrictions throughout the pregnancy. While Roe v. Wade was overturned in 2022, it remains a pivotal moment in the history of abortion rights in the United States, ensuring that abortion services were safer and more accessible for women across the nation.

The 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case upheld Roe v. Wade

The Court, in a decision written jointly by Justices O’Connor, Kennedy, and Souter, upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protected a woman's right to have an abortion prior to fetal viability. The Court overturned the Roe trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy. In its "key judgment", the Court overturned Roe's strict scrutiny standard of review of a state's abortion restrictions with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus". Applying this new standard of review, the Court upheld four provisions of the Pennsylvania law, but invalidated the requirement of spousal notification. Four justices wrote or joined opinions arguing that Roe v. Wade should have been struck down, while two justices wrote opinions favoring the preservation of the higher standard of review for abortion restrictions.

Frequently asked questions