The Lawmakers Behind Abortion Bans: A Global Concern

Abortion laws vary widely from state to state in the United States, with 13 states currently banning abortion outright. The issue of abortion is divisive in politics and culture wars, but a majority of Americans support access to abortion. The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live.

In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which had decriminalized abortion nationwide in 1973. The ruling in Dobbs v. Jackson Women's Health Organization allowed states to create abortion laws without restriction. The decision has led to abortion bans in some states, with Texas and Missouri immediately prohibiting abortions except in cases of serious health risk to the mother.

The American Medical Association's role in the criminalization of abortion

The American Medical Association (AMA) has played a significant role in the history of abortion criminalization and legalization in the United States.

In 1857, the AMA started the anti-abortion movement to gain control of reproductive health, which was previously dominated by midwives, homeopaths, and female physicians. The criminalization of abortion restricted access to abortion services, especially for women of color, who were forced to seek unsafe alternatives. The AMA's efforts led to a century of criminalized abortion in the US. During this time, abortion was only permitted if deemed medically necessary by a physician. The AMA also rallied support by claiming that decreasing birth rates among White Protestant families due to abortion access would result in overpopulation by minorities.

In the 20th century, social activism and a renewed focus on women's rights spurred a pro-choice movement. The Supreme Court's ruling in Griswold v. Connecticut in 1965 protected reproductive decisions regarding contraception under the Constitution's right to privacy. This marked a shift towards recognizing reproductive rights as human rights.

In recent years, the AMA has taken a strong stance against the criminalization of abortion and government interference in the practice of medicine. The organization has adopted policies opposing the criminalization of pregnancy loss resulting from medically necessary care and supporting expanded access to abortion care. The AMA also seeks legal protections for patients and physicians against government overreach that impedes access to safe and evidence-based reproductive health services.

The AMA's current position aligns with its long-held opposition to political intrusions into the practice of medicine, prioritizing the patient-physician relationship and access to safe, evidence-based medical care.

The reversal of Roe v. Wade in 2022

On June 24, 2022, the U.S. Supreme Court officially reversed Roe v. Wade, the five-decade-old decision that had guaranteed a woman's right to obtain an abortion. The reversal was made in the Dobbs v. Jackson Women's Health Organization case, which challenged the impact of Roe v. Wade in blocking enforcement of a 2018 Mississippi law (the Gestational Age Act) that had banned any abortions after the first 15 weeks.

The Supreme Court's decision, written by Justice Samuel Alito, argued that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming Roe "must be overruled" because they were "egregiously wrong," the arguments "exceptionally weak" and so "damaging" that they amounted to "an abuse of judicial authority." Alito further contended that the right to privacy is not specifically guaranteed anywhere in the Constitution and that when unenumerated liberty rights exist, they must be "deeply rooted in the Nation's history and tradition."

The reversal of Roe v. Wade means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swaths of the country. The decision may also mean that the court itself, as well as the abortion question, will become a focal point in the upcoming fall elections and beyond.

Joining the Alito opinion were Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts, appointed by President George W. Bush, concurred in the judgment only, and would have limited the decision to upholding the Mississippi law at issue in the case. Dissenting were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, appointed by President Obama.

The reversal of Roe v. Wade has sparked strong reactions from both supporters and opponents of abortion rights. Many states have already moved to restrict or ban abortion following the decision, while others have sought to protect or expand access to abortion. The reversal has also raised questions about the impact on other rights and precedents that rely on similar logic as Roe, such as the right to contraception and same-sex marriage.

State-level abortion laws and their enforcement

However, abortion laws in the United States continue to vary widely from state to state. In June 2022, the Supreme Court overturned Roe v. Wade, allowing states to ban abortion outright. Currently, abortion is illegal in 13 states, with varying penalties for performing abortions, including imprisonment and fines. Some states have trigger laws, which ban abortion if Roe v. Wade is overturned, while others have pre-Roe abortion bans that were never repealed.

State-level abortion laws can include pre-viability gestational bans, which prohibit abortion before the fetus is considered viable outside the womb, and laws prohibiting specific methods of abortion, such as dilation and extraction (D&X) and dilation and evacuation (D&E) procedures. Additionally, some states criminalize self-managed abortions (SMA), or abortions performed outside of a healthcare setting.

Targeted Regulation of Abortion Providers (TRAP) laws impose burdensome legal requirements on physicians who provide abortion care, often without increasing patient safety. Parental involvement laws require providers to notify or obtain consent from parents or legal guardians of minors seeking abortions. Other types of abortion restrictions include mandatory waiting periods, mandatory ultrasounds, and biased counseling, which serve to dissuade pregnant individuals from exercising their bodily autonomy.

On the other hand, some states have statutory protections for abortion, with laws passed to protect the right to abortion. Some states also have state constitutional protection, with the highest state court affirming that the state constitution protects the right to abortion. Additionally, some states require public funding for abortion care in certain circumstances, such as life endangerment, rape, or incest. Private insurance requirements vary by state, with some states mandating that private health insurance plans cover abortion.

The enforcement of state-level abortion laws can be complex and subject to legal challenges. For example, in Iowa, doctors are required to determine the legitimacy of a rape before performing an abortion, threatening the privacy and intimacy of the patient-doctor relationship. In Idaho, rape victims must produce a police report to obtain an abortion, but there is a lack of clarity and consistency among law enforcement agencies in providing these reports.

The legal status of abortion continues to be a divisive issue in American politics and culture, with ongoing battles for abortion access and reproductive rights.

The impact of abortion bans on access to safe abortions

Abortion bans have a significant impact on access to safe abortions, and this impact is felt most keenly by those from marginalised communities. When abortion is banned, restricted, or criminalised, people are compelled to seek out unsafe alternatives, which puts their health and lives at risk.

Barriers to safe abortions

Unsafe abortions are the third leading cause of preventable maternal deaths worldwide, and they cause around 5 million preventable disabilities annually, according to the World Health Organization. In places where abortion is restricted, people are forced to resort to unsafe methods, often with fatal consequences. For example, in 1930, nearly 2,700 women in the US died from unsafe, illegal abortions—accounting for almost one in five recorded maternal deaths that year.

Abortion restrictions also disproportionately affect marginalised communities. Health services are generally less accessible to people on low incomes, refugees, migrants, LGBTIQA+ people, and racialised and Indigenous people. This means that these groups are more likely to be forced to seek unsafe services in another country or to access private care, which may be prohibitively expensive.

Stigma and misinformation

Even in places where abortion is legal, it can be difficult to access due to factors like cost, distance to services, social stigma, or religiously reinforced conservative attitudes. For instance, medical staff might refuse to provide abortions on the grounds of conscience or religion. This was the case in Northern Ireland, where abortion was recently decriminalised, but uneven and obstructed access to services, as well as abortion stigma, still prevent people from getting the care they need.

The impact of criminalisation

The criminalisation of abortion has a compounding impact on those who are already marginalised. In countries like the US, Sierra Leone, Poland, and Morocco, getting an abortion or helping someone get an abortion is illegal. In some places, such as Equatorial Guinea and Zambia, people who seek abortions can face life imprisonment. These laws do not result in fewer abortions; instead, they drive women to risk their lives and health by seeking out unsafe alternatives.

The way forward

Improving social safety net programs for women can help reduce gender gaps and improve health outcomes, as well as reduce the number of abortions over time. Measures such as better education, improved access to comprehensive reproductive healthcare, and fair remuneration for women can help them avoid mistimed and unwanted pregnancies.

Additionally, laws relating to abortion should respect, protect, and fulfil the human rights of pregnant people, rather than forcing them to seek unsafe alternatives. Access to safe abortion is included in a constellation of rights, such as the rights to life, liberty, privacy, equality, and freedom from cruel, inhuman, and degrading treatment.

The role of political parties in the abortion debate

The issue of abortion has been a highly divisive topic in US politics since the 1973 Roe v. Wade Supreme Court decision, which legalized abortion nationwide. While the Republican Party has generally sought to restrict abortion access or criminalize it, the Democratic Party has largely defended abortion rights and made contraception more accessible.

The Republican Party

Since the late 1970s, the Republican Party has been characterized by its opposition to abortion. This stance can be traced back to a coalition of political and religious conservatives who captured the national agenda during this period. The religious right, including fundamentalist Christians and the Catholic Church, played a significant role in mobilizing conservatives against abortion. They portrayed it as a threat to traditional values and family structures, often linking it to broader social developments such as gay rights and women working outside the home.

The election of Ronald Reagan as president in 1980 further solidified the Republican Party's anti-abortion stance. Reagan's victory gave abortion opponents a powerful ally in the White House, and his administration introduced policies such as the Mexico City policy, which prohibited financial support for overseas organizations that performed or promoted abortions.

The Democratic Party

On the other hand, the Democratic Party has generally supported abortion rights and worked to expand access to contraception. Women's rights activists gained influence within the Democratic Party, pushing leaders to support abortion rights. Since 1989, abortion-rights groups have donated significantly more money to Democratic candidates who support keeping abortion legal.

Shifting Positions and Political Realignment

It is worth noting that the political landscape around abortion was not always so clearly divided along party lines. In the early years following the Roe v. Wade decision, there was more overlap in the positions of the two parties, with Republican and Democratic voters expressing similar levels of support for legal abortion. However, as time progressed, the issue of abortion became increasingly politicized, and the parties began to solidify their stances.

The abortion-rights movement initially emphasized the national policy benefits of abortion, such as smaller welfare expenses and slower population growth, drawing support from the population control movement, feminists, and environmentalists. However, as opposition to abortion grew, particularly among religious groups, the abortion-rights movement shifted its rhetoric to focus on choice and individual rights.

Current Landscape and Ongoing Battles

In recent years, the debate around abortion has continued to be a central issue in US politics, with both parties firmly entrenched in their positions. The 2022 Supreme Court decision in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, effectively returning the regulation of abortion to individual state governments. This ruling has had a significant impact on abortion access across the country, with some states enacting trigger laws that ban abortion almost entirely.

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