The Origin Of Abortion Laws: A Historical Overview

Abortion laws have fluctuated throughout history, and what was once a relatively uncontroversial topic has become a highly divisive issue. In the United States, abortion was not illegal until the mid-19th century, and prior to that, it was a common practice. The first anti-abortion movement in the US was driven by physicians aiming to regulate medicine, rather than moral or religious concerns. The American Medical Association (AMA), established in 1847, campaigned to end abortion, and by 1910, abortion was banned nationwide. However, the enforcement of these laws was inconsistent, and abortion remained a reality for many women. The 20th century saw a push for abortion law reform, and in 1973, the Supreme Court's Roe v. Wade decision established the legal right to abortion. Since then, abortion laws have continued to be a subject of debate and contention, with states enacting varying restrictions.

The American Medical Association's role in criminalising abortion

The American Medical Association (AMA) was formed in 1847 by doctors who wanted to establish themselves as the authority on medical practices. The organisation was male-dominated and scrutinised the work of female reproductive health workers, such as midwives and nurses, eventually phasing out their obstetric services.

AMA members believed that they should have the power to decide when abortions could be legally performed. However, these physicians often lacked expertise in pregnancy and reproductive health. They launched a criminalisation campaign against abortion and female abortion providers, which successfully influenced state legislatures to ban abortion.

Horatio Storer, an influential obstetrician often called the father of American gynecology, led the AMA's efforts to criminalise abortion. Storer wanted to distance the medical profession from abortion, considering it immoral and akin to murder. He lobbied the association to view abortion not as a medical act, but as a grave crime. Storer gathered fellow physicians into a group called the Physicians Campaign Against Abortion, which helped justify the growing number of criminal statutes against abortion.

The AMA's campaign against abortion was also fuelled by nativist fears about declining birth rates among white Americans. Physicians like Storer argued that white women should have more children for the "future destiny of the nation". This rhetoric connected the issue of falling birth rates with the prevalent practice of abortion, contributing to the criminalisation of abortion.

By 1910, abortion was illegal at every stage of pregnancy in all states except Kentucky, which followed suit in 1910. These laws disproportionately impacted those without the financial means to access abortions, such as Black, Latinx, Indigenous, low-income, and rural communities.

The criminalisation of abortion led to dangerous underground abortion practices, resulting in high maternal death rates. It also contributed to the stigmatisation of abortion, making it a contentious issue in American society.

The role of religion in abortion laws

Historical Context

Abortion has been a part of the social and medical landscape for centuries, with varying degrees of acceptance and restriction. In the colonial era and the early days of the republic in the United States, there were no specific abortion laws. While church officials frowned upon the practice, it was not treated as murder but rather as evidence of illicit or premarital sex. Common law allowed abortion before "quickening", an archaic term for fetal movement that usually occurs around four months into a pregnancy.

Religious Influence on Abortion Laws

The religious influence on abortion laws cannot be understated. In the United States, the push to outlaw abortion in the 19th century was led by a coalition of male doctors, with support from the Catholic Church and others who sought to control women's bodies. This movement aimed to take authority away from female-dominated professions, such as midwives, and establish male dominance in the field of reproductive health. By 1910, abortion was banned nationwide, with all states having anti-abortion laws in place.

Religious Views on Abortion

Numerous religious traditions have taken a stance on abortion, but few are absolute. Here is an overview of some religious views:

• Catholicism: The Catholic Church opposes abortion, considering it a sin and equivalent to murder. However, there is a distinction between automatic excommunication for abortion before and after the formation of the fetus.
• Protestantism: Protestant denominations vary in their views, with some being more permissive, such as the Methodist Church and the Episcopal Church, while others, like Evangelical Protestants, have strongly opposed views, equating abortion with murder.
• Buddhism: There is no single Buddhist view, as some traditional sources hold that life begins at conception, while others believe that ""life is a continuum with no discernible starting point". The Dalai Lama has stated that abortion is "negative" but allows for exceptions based on specific circumstances.
• Islam: Muslim scholars differ on when a fetus is given a soul, with some saying 40 days after conception and others 120 days. Abortion is generally forbidden in Islam, but there are exceptions, such as when the mother's life is in danger.
• Judaism: Orthodox Judaism generally opposes abortion after the 40th day, except when necessary to safeguard the life of the pregnant woman. Reform, Reconstructionist, and Conservative movements advocate for the right to safe and accessible abortion.
• Hinduism: Most classical Hindu texts condemn abortion, but there are exceptions, such as when the fetus is defective or the mother's life is at risk.

The Impact of Religion on Abortion Stigma

Religion plays a significant role in shaping societal attitudes and stigma surrounding abortion. A study by Frohwirth, Coleman, and Moore (2018) found that religion permeates abortion stigma, with respondents expressing internalized stigma and fearing judgment from religious communities and family members. The study also highlighted strategies for managing stigma, such as rejecting religious identity, personal exceptionalism, and revising religious beliefs.

The Intersection of Religion and Abortion Access

The intersection of religion and abortion access is complex. While religious beliefs can influence abortion laws and shape societal attitudes, they also impact individuals' decisions and experiences. Religiously affiliated women obtain abortions despite doctrinal disapproval, navigating internal conflict and stigma. Additionally, religious leaders and organizations have been involved in advocating for or against abortion rights, further complicating the landscape of abortion access.

The legality of abortion in the US prior to Roe v. Wade

Abortion was a common practice in the US and was not always a public controversy. In the colonial era and the early days of the republic, there were no abortion laws. Church officials frowned upon the practice but treated it as evidence of illicit or premarital sex rather than murder. Abortion was generally not prosecuted or condemned up to the point of 'quickening'—the point at which a pregnant woman could feel the fetus' first kicks and movements, usually after around four months of pregnancy.

The first state statute legislating abortion in the US was passed in Connecticut in 1821. It forbade the use of poisons in 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. By 1910, abortion was illegal in every state in the country, with some exceptions in instances to save the patient's life.

In the 1960s, there was a rise in abortion law reform. In the late 1960s, 11 states liberalized their abortion laws. By 1971, elective abortion on demand was effectively available in Alaska, California, Hawaii, New York, Washington, and Washington, D.C.

Roe v. Wade

In 1973, the US Supreme Court established the legal right to access abortion nationwide with its landmark decision in the Roe v. Wade case. The ruling struck down many abortion laws and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

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 filed a lawsuit on her behalf in US federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. The US Supreme Court ruled in her favor, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion.

The impact of the Comstock Act on abortion

The Comstock Act of 1873, named after anti-vice crusader and U.S. Postal Inspector Anthony Comstock, was intended to prohibit the mailing of contraceptives, "lewd" writings, and any "instrument, substance, drug, medicine, or thing" that could be used in an abortion. The Act was passed at a time when abortion was already facing increasing restrictions in the United States.

The Comstock Act empowered federal authorities, including the FBI and the DOJ, to enforce abortion restrictions. This led to the prosecution and punishment of doctors, nurses, and other abortion providers, as well as women seeking abortions. The Act also had a chilling effect on abortion providers and those seeking abortions, as they now faced the threat of legal consequences.

The Act's impact extended beyond abortion providers and seekers. Publishers, writers, and distributors of information or literature related to abortion also risked prosecution, creating a climate of fear and self-censorship. The Act's broad language and vague definitions further added to the uncertainty, as people were unsure what exactly constituted a violation.

The Comstock Act played a key role in the criminalization of abortion in the late 1800s and continued to shape the abortion landscape in the United States for decades. It set the stage for further restrictions and contributed to the "century of criminalization" that followed, with all states having laws to restrict abortion by 1880.

The influence of the women's rights movement on abortion laws

The women's rights movement has had a significant influence on abortion laws, particularly in the United States, where a sociopolitical movement known as the abortion-rights movement or the pro-choice movement has advocated for legal access to abortion. This movement consists of various organizations, all working towards ensuring that women have the right to terminate their pregnancies without legal or social repercussions.

The movement gained momentum in the 19th century, as abortion laws became more restrictive, and women increasingly sought abortions in secret. Prior to this, abortion was a regular part of life for women, and common law allowed abortion before "quickening", an archaic term for fetal movement that usually occurs around four months into a pregnancy. The increasing restrictions on abortion were driven by a coalition of male doctors, with support from the Catholic Church and others who wanted to control women's bodies. These male-dominated medical associations, such as the American Medical Association (AMA), sought to criminalize abortion and discredit female healthcare providers such as midwives and nurses.

The women's rights movement played a crucial role in pushing back against these restrictive abortion laws. Early feminists expressed skepticism about outlawing abortion, recognizing the potential harm it could cause. Notable figures such as Elizabeth Cady Stanton and Susan B. Anthony, through their newspaper "The Revolution", gave voice to women's concerns and helped bring attention to the need for reproductive rights.

In the 20th century, the abortion-rights movement continued to gain traction, with the establishment of organizations like the National Association for the Repeal of Abortion Laws (NARAL) in 1969. The movement was also influenced by second-wave feminism, which spread across various countries, including Canada, the United States, the Netherlands, Britain, Norway, France, Germany, and Italy. Feminists and women's rights activists played a crucial role in advocating for abortion law reform and raising awareness about the dangers of illegal and unsafe abortions.

A key moment in the history of abortion rights in the United States was the 1973 Supreme Court decision in Roe v. Wade, which struck down most state laws restricting abortion and legalized abortion in several states. This decision was a direct result of the efforts of the women's rights movement and their allies. However, the issue of abortion remains divisive, and the fight for abortion rights continues, with ongoing battles for access and the recent overturning of Roe v. Wade in 2022.

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