The History Of Abortion Laws And Their Signatories

Abortion has been a highly contested issue in the United States, with laws surrounding it being both supported and contested throughout history. In 1973, the Supreme Court's Roe v. Wade decision decriminalized abortion nationwide. However, in 2022, Roe and Casey were overturned in Dobbs v. Jackson Women's Health Organization, ending protection of abortion rights by the United States Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.

The history of abortion law in the US

Abortion law in the US has been a topic of contention for almost two centuries. The history of abortion access in the country is a long and complex one, with many factors influencing the legislation surrounding it.

Early History

Abortion was not always a controversial issue in the US. In fact, during the first century of the country's existence, it was a relatively uncontroversial fact of life. Until the mid-19th century, abortion was legal in the US until "quickening" - when the foetus's movement could be felt by the mother. This moment usually occurs around four to five months into a pregnancy.

The First Abortion Laws

The first abortion laws in the US were passed in the 1820s, though early laws were ambiguous and not strictly enforced. Some laws were poison-control measures, drafted to prevent the sale of chemical mixes used to induce abortion. By the late 19th century, most states had laws restricting abortion. This was partly due to a backlash against the growing women's rights movement, which advocated for "voluntary motherhood".

Professionalization and the American Medical Association (AMA)

The medicalization of abortion accelerated with the establishment of the AMA in 1847. The AMA, which excluded women and Black people from membership, was keen to be taken seriously as a gatekeeper of the medical profession. They targeted abortion providers, who were mostly midwives, as "irregular practitioners" or "quacks". The AMA's strategic rhetoric successfully positioned them as anti-abortion, a stance they maintained for some time.

Criminalization and the Comstock Laws

The criminalization of abortion gained momentum in the late 1860s, with states passing laws banning the procedure. By 1880, abortion was outlawed in most states. This wave of criminalization was furthered by the Comstock Laws, which criminalized the distribution of "obscene, lewd, or lascivious" materials, including information related to abortion and birth control.

The 20th Century

Despite abortion being illegal in almost all states and territories, some doctors continued to perform abortions in the late 19th and early 20th centuries. During the Depression era, for example, doctors could sympathize with women who did not want to have a child. In the 1920s and 1930s, many cities had physicians who specialized in abortions, and other doctors would refer patients to them "off book".

However, this leniency faded after World War II, as societal expectations dictated that women should be in the home, having babies. This shift in the 1940s and 1950s meant that more doctors were prosecuted for performing abortions, driving the practice underground. Up to 1.2 million illegal abortions were performed each year in the US during the 1950s and 1960s, according to the Guttmacher Institute.

The Feminist Movement and Roe v. Wade

The feminist movement of the 1960s and 1970s played a significant role in challenging abortion criminalization laws. Feminists and physicians raised public interest in abortion access and questioned anti-abortion laws. By the time of the Roe v. Wade ruling in 1973, legal abortions were already available in 17 states, and not just to save a woman's life.

The Roe v. Wade decision by the US Supreme Court struck down all existing criminal abortion laws and established abortion as a constitutional right. The Court ruled that people have a fundamental "right of privacy... founded in the Fourteenth Amendment's concept of personal liberty".

Continued Debate and Recent Developments

While the Roe v. Wade decision was a landmark moment for abortion rights, the issue remains highly contentious in the US. Since 1973, abortion rights activists and opponents have continued to advocate for their respective positions, and state and federal laws have fluctuated accordingly.

In 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the Dobbs v. Jackson Women's Health Organization case, ending constitutional protection for abortion rights and allowing individual states to regulate abortion. This decision has had a significant impact on abortion access across the country, with many states enacting restrictions or bans.

The Roe v. Wade ruling

The Court held that a woman has a right to abortion until a foetus becomes viable, which is usually between 24 and 28 weeks after conception. Before this point, the woman has the exclusive right to pursue an abortion, not subject to any state intervention. In the second trimester, the state cannot intervene unless her health is at risk. After viability, the state may restrict abortion but must always include an exception to protect the mother's health.

The Court's decision in Roe v. Wade was based on the idea that the right to privacy is broad enough to cover the abortion decision. It was also influenced by the belief that abortion in early pregnancy is relatively safe and that the state's interest in protecting the woman's health and safety becomes more compelling as the pregnancy progresses.

The ruling in Roe v. Wade had a significant impact on maternal health and public attitudes towards abortion. It also sparked a long period of legal uncertainty over states' power to restrict abortion, with many states enacting laws that will go into effect if Roe v. Wade is overturned.

The Planned Parenthood v. Casey ruling

The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982. The provisions included requirements for a waiting period, spousal notification, and (for minors) parental consent prior to undergoing an abortion procedure. In a joint opinion written by associate justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, the Supreme Court upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protected a woman's right to have an abortion prior to fetal viability.

The Court overturned the Roe trimester framework in favour of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy. The Court's "key judgement" overturned Roe's strict scrutiny standard of review of a state's abortion restrictions with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Applying this new standard of review, the Court upheld four provisions of the Pennsylvania law but invalidated the requirement of spousal notification.

The Court applied stare decisis (the doctrine of looking at precedent, or past decisions on the same issue) to re-evaluate Roe v. Wade. The Court analysed: the workability of Roe; the extent to which people had reasonably relied upon Roe's continued application; the relevance of Griswold's and Roe's ideas of personal autonomy and bodily integrity; and whether the passage of time and advances in maternal health care had altered the factual assumptions underlying Roe. The Court acknowledged that the issue of abortion was highly controversial in society, but that gave further reason to uphold precedent and avoid politicisation.

In the Planned Parenthood v. Casey ruling, the authors of the plurality opinion abandoned Roe's strict trimester framework but maintained its central holding that women have a right to have an abortion before viability. The Court had noted that while the idea of "viability" remained, the point of viability itself had shifted to earlier in the pregnancy. The state had an interest in both the potential life of the fetus and in the woman's health. Post-viability, the state's interest in potential life becomes compelling, and the state may choose to regulate abortions except where necessary to protect the life or health of the mother. Pre-viability, the Court upheld the protection of the woman's right to have an abortion, but the Court rejected Roe's "rigid trimester framework."

The Dobbs v. Jackson Women's Health Organization ruling

Dobbs v. Jackson Women's Health Organization was a landmark 2022 Supreme Court case that overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the decisions that originally asserted the fundamental right to an abortion prior to the viability of the fetus. The case involved Mississippi's Gestational Age Act, passed in 2018, which prohibited abortions after 15 weeks except for medical emergencies or severe fetal abnormalities. The act also applied penalties such as license suspension to abortion providers. Consequently, Jackson Women's Health Organization filed a suit in a federal district court and challenged the constitutionality of the Gestational Age Act.

In a 6-3 vote, the Supreme Court ruled that the Constitution does not confer a right to abortion and that the authority to regulate abortion is "returned to the people and their elected representatives". The Court explained that the Constitution makes no express references to abortion and that abortion is not deeply rooted in the Nation's history and traditions. The Court noted that at the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy.

The ruling in Dobbs v. Jackson Women's Health Organization ended protection of abortion rights by the United States Constitution and allowed individual states to regulate any aspect of abortion not preempted by federal law.

The Gonzales v. Carhart ruling

Gonzales v. Carhart was a landmark decision of the U.S. Supreme Court that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General, Alberto Gonzales, appealed a ruling of the U.S. Court of Appeals for the Eighth Circuit in favour of LeRoy Carhart that struck down the Act.

The Supreme Court's decision upheld Congress's ban and held that it did not impose an undue burden on the due process right of women to obtain an abortion. The Court found that there is "uncertainty [in the medical community] over whether the barred procedure is ever necessary to preserve a woman's health", and in the past, the Court "has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."

The Partial-Birth Abortion Ban Act was signed into law by President George W. Bush on November 5, 2003. It was found unconstitutional in the U.S. District Courts for the Northern District of California, the Southern District of New York, and the District of Nebraska.

The federal government appealed the district court rulings, first bringing Carhart v. Gonzales before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit. The panel unanimously affirmed the ruling of the Nebraska court on July 8, 2005. Finding that the government offered no "new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg", they held that the Partial-Birth Abortion Ban Act was unconstitutional because it lacked an exception for the health of the woman.

Justice Anthony Kennedy wrote for the Court that the respondents had failed to prove that Congress lacked authority to ban this abortion procedure. Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, and Justice Antonin Scalia agreed with the Court's judgment, joining Kennedy's opinion.

The Court left the door open for as-applied challenges, citing its recent precedent in Ayotte v. Planned Parenthood of New England. According to Washington Post reporter Benjamin Wittes, "The Court majority, following the path it sketched out last year in the New Hampshire case, decided to let the law stand as a facial matter and let the parties fight later about what, if any, applications need to be blocked."

The Court decided to "assume ... for the purposes of this opinion" the principles of Roe v. Wade and Planned Parenthood v. Casey.

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