The Anti-Abortion Law: Who Are Its Architects?

The history of abortion laws in the United States has been a tumultuous one, with the procedure being legal for much of the nation's history, then outlawed in the mid-1800s, and then legalized once more in the early 1970s.

From colonial times until the mid-1800s, abortion was a regular part of life for women. Common law allowed abortion prior to quickening, an archaic term for fetal movement that usually happens after around four months of pregnancy.

In the 1840s, doctors began to band together to form the American Medical Association (AMA), which became a male-dominated authority on medical practices. The AMA launched a full-fledged criminalization campaign against abortion and female abortion providers, and state legislatures moved to ban the procedure. By 1880, all states had laws to restrict abortion, with some exceptions if a doctor said the procedure was needed to save the patient's life or health, or for therapeutic reasons.

By 1910, abortion was banned nationwide, though those with means, particularly wealthy white women, could still access the procedure by travelling out of state.

In the 1960s, a nationwide effort was underway to reform abortion laws, and in 1973, the Supreme Court established the legal right to access abortion nationwide with its landmark decision in the Roe v. Wade case. However, abortion has remained a divisive and highly politicized issue, with states continuing to pass laws to restrict access. In 2022, the Supreme Court overturned Roe v. Wade, allowing individual states to regulate any aspect of abortion not preempted by federal law.

The American Medical Association's criminalization campaign

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

AMA members believed they should have the power to decide when abortions could be legally performed, despite lacking expertise in pregnancy and reproductive health. They launched a criminalisation campaign against abortion and female abortion providers, and state legislatures moved to ban the procedure.

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. The criminalisation of abortion led to a growing stigma surrounding it. By 1910, abortion was not only restricted but outright illegal at every stage of pregnancy in every state in the country.

The criminalisation of abortion also sent the practice underground, resulting in a high death toll. In 1930, unsafe and illegal abortions caused the deaths of nearly 2,700 women—almost one out of every five recorded maternal deaths that year, according to the Guttmacher Institute.

The AMA's criminalisation campaign ended in 1973 with Roe v. Wade, which decriminalised abortion nationwide.

The role of the Catholic Church

The Catholic Church has always been against abortion. The Catechism of the Catholic Church states that "since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable". The Church believes that human life must be respected and protected from the moment of conception and that abortion is gravely contrary to the moral law.

The Church's opposition to abortion is based on the belief that human life is sacred and that every human being has the right to life, which is an inalienable right that must be protected by society and its legislation. This belief is rooted in the Church's social doctrine, which includes its teachings on war, capital punishment, euthanasia, healthcare, poverty, and immigration. The Church teaches that abortion is a moral evil and a grave sin that can never be morally right.

The Church's opposition to abortion has been consistent throughout its history. Early Christian writings, such as the Didache, the Epistle of Barnabas, and the works of early writers such as Tertullian, Athenagoras of Athens, Clement of Alexandria, and Basil of Caesarea, condemned abortion. The Church Fathers, such as Augustine of Hippo and Basil of Caesarea, also condemned abortion and considered it a crime.

In the Middle Ages, many Church commentators condemned all abortions, and some even allowed abortion to save the mother's life. In the 16th century, Thomas Sanchez accepted this view, while Antoninus de Corbuba made the distinction that direct killing of the fetus was unacceptable, but that treatment to cure the mother was acceptable even if it resulted in the death of the fetus. This distinction became generally accepted among Catholic theologians.

The Church's teaching on abortion was clarified in the 19th century with the discovery of the human ovum, which discredited the previous belief that the soul was infused weeks after conception. Modern science has confirmed the Church's constant teaching against abortion by showing that life begins at conception.

The Church's opposition to abortion has not wavered, and it continues to teach that abortion is a grave sin and a moral evil. The Church has also taken a stand against abortion politically, with the United States Conference of Catholic Bishops stating that "no Catholic can responsibly take a 'pro-choice' stand when the 'choice' involves the taking of innocent human life". The Church has excommunicated Catholics who support abortion and has refused communion to Catholic politicians who support abortion rights.

The influence of white supremacy

The Historical Context

The anti-abortion movement in the US has a long history rooted in white supremacy, racism, and xenophobia. While the movement has attempted to distance itself from overt white nationalist groups, the underlying motivations remain intertwined with these ideologies. The following paragraphs will explore the influence of white supremacy on abortion laws and the efforts to restrict abortion access.

The Role of the American Medical Association (AMA)

The formation of the AMA in 1847 played a significant role in the criminalization of abortion. The AMA, dominated by male physicians, sought to exert control over reproductive health care, which was largely provided by female midwives at the time. AMA members launched campaigns to criminalize abortion and vilify female abortion providers, leading to state legislatures banning abortion across the country.

Criminalization and Stigma

By the 1880s, all states had laws restricting abortion, and by 1910, abortion was outright illegal at every stage of pregnancy nationwide. The criminalization of abortion stigmatized the practice and pushed it underground, resulting in unsafe procedures and high maternal death rates. This period, often referred to as the "century of criminalization," lasted until the Roe v. Wade decision in 1973, which legalized abortion nationwide.

White Anglo-Saxon Protestant Fears

The influx of Catholic immigration in the mid-1800s through 1900s sparked fears among white Anglo-Saxon Protestants about being demographically overtaken. Opposition to abortion was fueled by the desire to increase birth rates among white Protestant women, as Catholic immigrants were targets of white supremacist groups like the Ku Klux Klan. Physicians argued that abortion by middle-class, Anglo-Saxon married women threatened the "Anglo-Saxon race."

The "Papist" Association

Until the 1970s, "pro-life" activism was associated with Catholics and the pope, deterring many Protestants from actively opposing abortion due to anti-Catholic sentiment. However, as anti-Catholic prejudice lessened, and with the rise of atheist Communism, conservative Catholic leaders formed a Christian coalition with Protestants, united against a common enemy. This shift contributed to the growing anti-abortion sentiment among Protestants.

White Nationalist Rhetoric

White nationalists have long been participants in the anti-abortion cause, employing rhetoric that mirrors that of the movement. They frame abortion as "race suicide" and target Jewish people and Planned Parenthood, claiming that "abortion makes money for Jews." White supremacist groups, such as the KKK, have created wanted posters of abortion providers and adopted tactics of intimidation and violence.

The Intersection of Misogyny and Racism

The anti-abortion movement's connection to white supremacy is further evident in the intersection of misogyny and racism. White supremacist leaders have focused on deterring birth rates among people of color through long-term contraception and opposition to social welfare programs. They have also exploited women's bodies to serve their agenda, using rhetoric about "protecting" women to advance their goals.

The Impact on People of Color

The Current Landscape

Today, the influence of white supremacy on abortion laws continues to be a concern, with states enacting restrictive abortion laws and the Supreme Court overturning Roe v. Wade in 2022. The fight for reproductive justice and equal access to abortion continues, particularly in former slave states, where maternal and infant mortality rates are the highest in the developed world.

The Hyde Amendment

> "I would certainly like to prevent, if I could legally, anybody having an abortion: a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the [Medicaid] bill."

The amendment has been described as a discriminatory and racist policy because Medicaid disproportionately serves Black, Latino, and LGBTQ+ communities, who already face barriers to care and economic opportunity. Despite the federal law, 16 states include abortion in their Medicaid programs using state funds.

The amendment has been interpreted as only allowing exceptions to pay for terminating pregnancies that endanger the life of the pregnant person or that result from rape or incest. However, a 2022 Congressional Research Service overview of the Hyde Amendment listed open questions, such as whether payment for travel for abortion services also falls under its scope.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization

In the 2022 case Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court held that the U.S. Constitution does not confer a right to abortion. The decision, written by Justice Samuel Alito, overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and returned the power to regulate any aspect of abortion not protected by federal statutory law to federal and state legislatures.

The case concerned the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Jackson Women's Health Organization—Mississippi's only abortion clinic at the time—had sued Thomas E. Dobbs, a state health officer with the Mississippi State Department of Health, in March 2018. Lower courts had enjoined enforcement of the law, citing the ruling in Planned Parenthood v. Casey (1992), which prevented states from banning abortion before fetal viability, generally within the first 24 weeks, on the basis that a woman's choice for abortion during that time is protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

Oral arguments before the Supreme Court were held in December 2021. In May 2022, a leaked draft majority opinion by Justice Samuel Alito was published by Politico. The leaked draft largely matched the final decision. On June 24, 2022, the Court issued a decision that, 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 decision in Dobbs v. Jackson Women's Health Organization was widely criticized and led to profound cultural changes in American society surrounding abortion. After the decision, 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, overwhelmingly in the Southern United States. In national public opinion surveys, support for legalized abortion access rose 10 to 15 percentage points by the following year. Referenda conducted in the decision's wake 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.

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