The Abortion Law: When Does Regulation Begin?

Abortion laws have changed over time and vary across countries and territories. In the US, abortion was a regular part of life for women from colonial days until the mid-1800s, when it was criminalised. In 1847, doctors formed the American Medical Association (AMA), which became a male-dominated authority on medical practices. The AMA scrutinised reproductive health workers, like midwives and nurses, and the obstetric services they provided were phased out.

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 patient's life or health, or for therapeutic reasons. By 1910, abortion was banned nationwide at every stage of pregnancy. These bans had some exceptions in instances to save the patient's life, but this decision could only be made by doctors, 95% of whom were men.

In 1973, the US Supreme Court decision in Roe v. Wade decriminalised abortion nationwide. The ruling set a legal precedent that affected dozens of subsequent Supreme Court cases. However, abortion continues to be a controversial and divisive issue in the US, with laws varying from state to state.

The American Medical Association's criminalization campaign

The American Medical Association (AMA) was formed in 1847 by doctors who wanted to establish themselves as the authority on medical practices. The AMA was male-dominated and scrutinized the work of reproductive healthcare workers such as midwives and nurses. The association believed that its members should have the power to decide when abortions could be legally performed.

AMA members launched a criminalization campaign against abortion and female abortion providers, and state legislatures moved to ban the procedure. This campaign kicked off a "century of criminalization", which was ended by Roe v. Wade in 1973.

By 1880, all states had laws restricting abortion, with exceptions in some states if a doctor said the procedure was needed to save the patient's life or health, or for therapeutic reasons. As abortion became criminalized, the stigma surrounding it grew. 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—a decision that only doctors, 95% of whom were men, had the power to make.

America had experienced several decades of increased immigration, and white men in power supported abortion bans as a way to encourage upper-class white women to have more children. Criminalizing abortion also sent the practice underground, resulting in a high death toll. Unsafe, illegal abortions caused nearly 2,700 deaths in 1930, almost one out of every five recorded maternal deaths that year.

The AMA's criminalization campaign was part of a broader movement to push state governments to outlaw abortion. This movement was led 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 female-dominated professions such as midwifery.

The AMA continues to advocate for access to abortion care and oppose the criminalization of pregnancy loss resulting from medically necessary care. The association also provides support and resources to physicians navigating ethical duties and legal requirements.

The 19th-century shift from common law to criminalization

The 19th century saw a shift from abortion being widely accepted and legal under common law to it becoming criminalized. This change was driven by a variety of factors, including the formation of the American Medical Association (AMA) in 1847, which was male-dominated and lacked expertise in pregnancy and reproductive health. AMA members believed they should have the power to decide when abortions could be legally performed and launched a criminalization campaign against abortion and female abortion providers.

During this time, abortion was common, with one estimate suggesting that one in every five women in the 19th century had an abortion. Abortifacients were openly advertised and sold, and women shared information on how to prevent conception and induce miscarriages. However, this began to change as doctors sought to criminalize abortion and make it their realm. They challenged the common perception that a fetus was not a person until it quickened (the first movement of the fetus in the womb, usually occurring around four months into a pregnancy). Churches also discouraged the practice, and society increasingly stigmatized abortion.

In the United States, physicians were the leading advocates of abortion criminalization laws. They argued that advances in medical knowledge showed that quickening was neither more nor less crucial to gestation than any other step, and thus, if one opposes abortion after quickening, one should oppose it before quickening as well. Practical reasons also played a role, as abortion providers tended to be untrained and not members of medical societies, and they were seen as competition by the formalized medical profession.

By 1880, all states had laws restricting 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 banned nationwide, though wealthy white women could still access abortions by travelling to skirt the law. This criminalization of abortion led to unsafe and illegal abortions, resulting in a high death toll.

The 1973 Roe v. Wade ruling

The Supreme Court's ruling in Roe v. Wade was based on the following key points:

• The right to liberty in the Constitution: The Court held that the specific guarantee of "liberty" in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability.
• The right to privacy: The Court recognised that the right to privacy, which is protected by the Constitution, is broad enough to encompass a woman's decision to terminate her pregnancy.
• The right to abortion is not absolute: While the Court acknowledged the right to abortion, it also stated that this right is not absolute and must be balanced against important state interests in regulation.
• State interests: The Court identified three state interests that could justify restrictions on abortion: protecting the health of the pregnant woman, maintaining medical standards, and protecting prenatal life.
• Viability as a key factor: The Court held that the state's interest in protecting prenatal life becomes "compelling" at the point of viability, which is typically around 24 to 28 weeks after conception. Before viability, the Court ruled that the state cannot ban abortion for any reason. After viability, the state may ban abortion but must allow exceptions to protect the life and health of the mother.
• Strict scrutiny: The Court applied a strict scrutiny standard of review to restrictions on abortion, meaning that such restrictions must be narrowly tailored to serve a compelling government interest.
• Overturning of previous laws: The Roe v. Wade ruling invalidated all state laws that banned abortion, except in certain limited circumstances, making abortion legal, more accessible, and safer nationwide.

The Roe v. Wade ruling had a significant impact on abortion access and reproductive rights in the United States. It established a framework for evaluating abortion regulations and set a legal precedent that influenced dozens of subsequent Supreme Court cases. However, it also sparked ongoing debates and controversies, with some states enacting laws that would go into effect if Roe v. Wade were overturned, which eventually happened in 2022.

The 1992 Planned Parenthood v. Casey ruling

• Doctors were required to inform women considering abortion about its potential negative impacts on their health.
• Women were required to give notice to husbands before obtaining an abortion.
• Children were required to get consent from a parent or guardian.
• A 24-hour waiting period was required between deciding to have an abortion and undergoing the procedure.
• Reporting requirements were imposed on facilities offering abortions.

The district court agreed and issued the injunction, but the Third Circuit upheld all of the provisions except the second provision requiring women to give notice to their husbands. The challenge to the right of abortion provided by Roe v. Wade and based on the Fourteenth Amendment was viewed as an opportunity for a more conservative Court to overturn Roe.

The 2022 Dobbs v. Jackson Women's Health Organization ruling

The Supreme Court's decision, by a vote of 6–3, reversed the lower court rulings. A smaller majority of five justices joined the opinion overturning Roe and Casey. The majority held that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty that comes from Palko v. Connecticut. Chief Justice John Roberts agreed with the judgment upholding the Mississippi law but did not join the majority in the opinion to overturn Roe and Casey.

The ruling stated that abortion is not a protected right under the Constitution, overturning both Roe and Casey, and returned the decision regarding abortion regulations back to the states. As a result, Dobbs is considered a landmark decision of the Court.

The ruling sparked protests and counter-protests across the U.S. and led to profound cultural changes in American society surrounding abortion. Several states immediately introduced abortion restrictions or revived laws that Roe and Casey had made dormant. As of 2024, abortion is greatly restricted in 17 states, mostly in the Southern U.S.

The ruling also had an impact on public opinion, with support for legalized abortion access rising 10 to 15 percentage points by the following year. Referendums conducted in the wake of the decision in Kansas, Montana, California, Vermont, Michigan, Kentucky, and Ohio uniformly came out in favor of abortion rights, generally by margins that were both bipartisan and overwhelming.

The Dobbs ruling also had an impact on corporate America, with several companies, including Amazon, Comcast, Dell, Disney, eBay, Goldman Sachs, JPMorgan Chase, Levi Strauss & Co., Meta, Netflix, Paramount, Snap, Sony, Tesla, and Yelp, saying they would cover travel benefits for employees seeking abortions in states that protected abortion access.

The Background to Dobbs v. Jackson Women's Health Organization

Abortion was a regular part of life for women in America until the mid-1800s. Common law allowed abortion prior to "quickening", an archaic term for fetal movement that usually happens after around four months of pregnancy. However, starting around the time of the Civil War, a coalition of male doctors, with support from the Catholic Church and others, led a movement to push state governments to outlaw abortion. By 1910, abortion was banned nationwide, although those with means, particularly wealthy white women, could still access abortions by travelling to other states.

The 1960s gave rise to abortion law reform, with 11 states liberalizing their abortion laws. In 1970, New York state legalized abortion, and a Planned Parenthood health center in Syracuse became the first in the country to provide abortion services. In 1973, the Supreme Court established the legal right to access abortion nationwide with its landmark decision in the Roe v. Wade case. However, due to systemic racism, laws restricting access to abortion continued to target Black people and other people of color.

The Impact of Dobbs v. Jackson Women's Health Organization

The Dobbs ruling has had a significant impact on abortion rights and access in the U.S., with many states introducing restrictions or bans on abortion. It has also led to a broader debate about the role of the Supreme Court and the potential for other rights, such as same-sex marriage and contraception, to be threatened. The ruling has also sparked concerns about access to medication abortion and the potential for states to ban access to medical abortion, including out-of-state shipments and telemedicine support.

The Dobbs ruling has also had an impact on other areas of law and policy, including the Department of Veterans Affairs continuing its policy of offering abortion counseling to military veterans, even in states where abortion is banned. Additionally, several states, including California, Oregon, and Washington, have introduced or considered legislation to expand abortion access, including by eliminating co-pays for abortion services and funding travel costs for those seeking abortion from other states.

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