The History Of Abortion Laws: Understanding The Past

Abortion laws in the United States have changed dramatically over the last two centuries. From the American Revolution to the mid-19th century, abortion was not a significant issue of controversy. It was legal in every state under common law prior to quickening, the archaic term for when a foetus's movement is felt by the pregnant person, usually around four or five months.

The first abortion laws appeared in the 1820s, and by the 1880s, all states had laws restricting abortion. However, these early laws were ambiguous and not strictly enforced. By 1910, abortion was banned nationwide, but wealthy white women could still access abortions by travelling elsewhere.

The 1960s saw the rise of the abortion law 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. This decision imposed a federally mandated uniform framework for state legislation on the subject. However, the effective availability of abortion varied significantly from state to state, as many counties had no abortion providers.

Since Roe v. Wade, abortion laws have continued to evolve, with states enacting a range of restrictions and protections. In 2022, Roe and Casey were overturned in Dobbs v. Jackson Women's Health Organization, ending the protection of abortion rights by the US Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.

The criminalization of abortion in the US

In the 1840s, doctors formed the American Medical Association (AMA), which became a male-dominated authority on medical practices. The AMA members believed they should be the ones to decide when abortions could be legally performed. They launched a campaign against abortion and female abortion providers, and state legislatures moved to ban the practice.

By 1880, all US states had laws restricting abortion, with some exceptions if a doctor deemed the procedure necessary to save the patient's life or health, or for therapeutic reasons. By 1910, abortion was illegal across the board in every state, with only doctors (95% of whom were men) having the power to make exceptions.

The criminalization of abortion led to a rise in unsafe, illegal procedures, which resulted in a high death toll. In 1930, nearly 2,700 women died from unsafe, illegal abortions—accounting for almost one out of every five recorded maternal deaths that year.

The mid-20th century saw the emergence of an abortion reform movement, with organizations like the Association for the Study of Abortion (formed in 1964) advocating for abortion law reforms and studies to advance abortion procedure safety. In 1969, the National Association for the Repeal of Abortion Laws (NARAL) was established as the first national group dedicated solely to campaigning for the legalization of abortion.

In 1970, New York became the first state to legalize abortion. Two years later, in 1972, the US Supreme Court ruled that the due process clause of the 14th Amendment to the Constitution protects the right to abortion, setting a precedent for future cases.

Finally, in 1973, the Supreme Court's landmark decision in Roe v. Wade decriminalized abortion nationwide, bringing an end to the "century of criminalization."

The legalization of abortion in the US

Pre-1900s

Abortion has been known and practised since ancient times, with various methods employed, including herbal remedies and surgical procedures. In the US, abortion was a regular part of life for women during the colonial period until the mid-1800s, when it was criminalized in certain states. Prior to criminalization, abortion was legal under common law if performed before "quickening" – an archaic term for fetal movement that usually occurs around four months into a pregnancy.

During the 19th century, there was a shift in social attitudes towards abortion, with physicians and male-dominated medical associations leading the campaign to criminalize the procedure. By 1910, abortion was banned nationwide, although wealthy white women could still access abortions by travelling out of state. Despite the ban, abortion remained prevalent, with an estimated 1 in 5 or 1 in 6 pregnancies ending in abortion during the 1850s and 1860s.

20th Century

The 20th century saw the emergence of the abortion-rights movement, with activists campaigning for abortion law reform. In the 1920s and 1930s, feminist campaigners such as Stella Browne in Britain and Margaret Sanger in the US began to speak out in favour of abortion legalization. However, it wasn't until the 1960s that significant progress was made.

In 1964, Gerri Santoro of Connecticut died from an illegal abortion, and her photo became a symbol of the abortion-rights movement. This tragedy, along with increasing media coverage of unsafe abortions, sparked a nationwide effort to reform abortion laws. Organizations such as the National Association for the Repeal of Abortion Laws (NARAL) were established to campaign for the legalization of abortion.

Roe v. Wade (1973)

The turning point came in 1973 with the landmark Supreme Court case, Roe v. Wade. This case established the legal right to access abortion nationwide, ruling that a woman's right to privacy included the right to have an abortion. The Court held that states could only impose restrictions on abortion according to the stage of pregnancy, with a focus on protecting maternal health.

Post-Roe v. Wade

While Roe v. Wade was a significant victory for abortion rights, the battle for legalization continued, with ongoing efforts to restrict abortion access at the state level. In 1976, the Hyde Amendment was introduced, preventing federal funds from being used for abortion services, except in cases of incest, rape, or life-threatening risk. This disproportionately impacted low-income communities and communities of colour, who were more likely to rely on public insurance.

In the late 1980s, evangelical Christians joined anti-abortion Catholics in their efforts to overturn Roe v. Wade, and the Supreme Court began to chip away at abortion rights with cases such as Planned Parenthood v. Casey (1992), which introduced the "`undue burden` framework for evaluating abortion laws."

2020s

The battle over abortion rights continued into the 2020s, with a wave of restrictive abortion laws being passed at the state level. In 2021, Texas implemented a law banning abortion at approximately six weeks of pregnancy, before many women even know they are pregnant.

Finally, in 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the case of Dobbs v. Jackson Women's Health Organization. This decision ended federal protection of abortion rights and allowed individual states to regulate abortion as they saw fit. As a result, abortion became illegal or heavily restricted in many states, with only a handful of states explicitly protecting the right to abortion in their constitutions.

The history of abortion in the US

Early History

Abortion has been a known practice since ancient times, with various methods used to perform it, including herbal remedies and surgical procedures. In the US, during the colonial period, the legality of abortion varied depending on the European country that controlled a specific colony. In British colonies, abortions were legal before "quickening" – an archaic term for fetal movement that usually occurs around four months into a pregnancy. French colonies also frequently performed abortions, despite them being illegal. Spanish and Portuguese colonies, however, outlawed the practice.

19th Century

From the American Revolution until the mid-19th century, abortion was not a highly controversial issue. Most people adhered to the traditional Protestant Christian belief that personhood began at quickening. However, in the 1800s, physicians in the US began campaigning for abortion criminalization laws, arguing that quickening was not a crucial stage in gestation. By 1910, abortion was banned nationwide, though these laws were often unevenly enforced. This period also saw the formation of the American Medical Association (AMA) in 1847, which sought to exert control over reproductive health care and phase out the services provided by midwives and nurses.

20th Century

The 20th century witnessed significant developments in abortion laws and social perceptions. The early 1900s saw the emergence of the women's rights movement, which would later influence the abortion debate. In 1914, an estimated 100,000 women in England attempted to procure a miscarriage, reflecting the widespread nature of abortion.

The 1920s and 30s saw the rise of the abortion law reform campaign, with activists like Marie Stopes and Margaret Sanger advocating for abortion law liberalization. This period also saw the formation of the first national group dedicated to abortion law reform, the Association for the Study of Abortion (ASA), in 1964.

In the 1960s, several states began to liberalize their abortion laws, and the Supreme Court's 1973 decision in Roe v. Wade established the legal right to access abortion nationwide. This ruling held that a woman's right to privacy included the right to have an abortion and set a minimal period during which abortion was legal. However, this decision was controversial and faced opposition from religious groups and anti-abortion advocates.

21st Century

The abortion debate continued to divide Americans in the 21st century, with states enacting varying restrictions on abortion access. In 2022, the Supreme Court overturned Roe v. Wade in the Dobbs v. Jackson Women's Health Organization case, ending the constitutional protection of abortion rights and allowing individual states to regulate abortion. This decision sparked further debates and activism around abortion access and reproductive rights.

The Roe v. Wade case

The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. In addition to the dissent, Roe was criticized by some in the legal community, including some who thought that Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism. Others argued that Roe did not go far enough, as it was placed within the framework of civil rights rather than the broader human rights. The decision also radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision; polls into the 21st century showed that a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe. Despite criticism of the decision, the Supreme Court reaffirmed Roe's central holding in its 1992 decision, Planned Parenthood v. Casey.

In June 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition", nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe.

The Dobbs v. Jackson Women's Health Organization case

The case made its way to the US Supreme Court, which heard oral arguments in December 2021. In a highly controversial move, the Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, eliminating the federal constitutional right to abortion. The Court's decision, authored by Justice Samuel Alito and issued on June 24, 2022, upheld Mississippi's prohibition of pre-viability abortion. The Court's ruling effectively enabled states to impose strict restrictions on abortion access and even ban it entirely.

The impact of the Dobbs decision was far-reaching. It was expected that half the states would ban abortion, affecting approximately 36 million women and other people who can become pregnant. The decision disproportionately impacted communities of colour, people living on low incomes, undocumented immigrants, young people, the LGBTQ+ community, and people with disabilities. The ruling also raised concerns about the potential endangerment of other established rights related to sex and marriage, such as the right to contraception and same-sex marriage.

The Dobbs case marked a significant shift in the legal landscape of abortion in the United States, with states now having the power to regulate abortion access without the federal constitutional protections previously afforded by Roe v. Wade.

Frequently asked questions