Criminal Abortion Laws: Historical Context And Motivations

The criminalization of abortion in the United States was the result of a concerted effort by a coalition of male doctors, with support from the Catholic Church, to consolidate power in the hands of wealthy, white men.

From colonial days until the mid-1800s, abortion was a regular part of life for women and was not considered an issue of significant controversy. Common law allowed abortion prior to quickening – the moment in pregnancy when the pregnant woman starts to feel the fetus's movement in the uterus.

However, starting around the time of the Civil War, a movement emerged to push state governments to outlaw abortion. The male-dominated medical profession, including the American Medical Association (AMA), wanted to take authority from the female-dominated profession of midwives and other unlicensed women's health care providers. By 1910, abortion was banned nationwide, but those with means, particularly wealthy white women, could still access abortions.

The first state to regulate abortion was Connecticut in 1821, which outlawed abortion after quickening and forbade the use of poisons to induce abortion post-quickening. Many states subsequently passed various abortion laws, and by 1880, all states had laws to restrict abortion.

The influence of the American Medical Association (AMA)

The American Medical Association (AMA) has been a vocal advocate for reproductive rights and access to abortion care. The association has adopted policies opposing the criminalization of pregnancy loss resulting from medically necessary care and supporting expanded access to abortion care.

In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and Planned Parenthood v. Casey, the AMA reaffirmed its commitment to ensuring access to reproductive health care and preventing government interference in the practice of medicine. The association has also clarified its ethical guidance on abortion, expressly permitting physicians to perform abortions in accordance with good medical practice.

The AMA has also taken a stand against restrictive abortion laws, which disproportionately affect low-income people of color, immigrants, and non-English speakers. These restrictions have been linked to increased maternal mortality and adverse outcomes, particularly among Black birthing people.

To address these issues, the AMA has advocated for public health programs and private insurers to cover abortion services and urged lawmakers to codify legal protections for physicians who provide abortion care. Additionally, the association has worked to preserve access to abortion training for physicians-in-training, recognizing the importance of comprehensive abortion education in medical schools and residency programs.

The influence of the AMA on criminal abortion laws has been significant. The association has played a crucial role in shaping policies and public opinion related to reproductive rights and access to abortion care. Through its policies and advocacy efforts, the AMA has helped to protect the rights of patients and physicians, ensuring that medically necessary treatments are not criminalized.

The criminalization and vilification of abortion

The rise of criminal abortion laws

The criminalization of abortion in the US was driven by a coalition of male doctors, supported by the Catholic Church and others who wanted to control women's bodies. The male-dominated medical profession wanted to take authority from the female-dominated profession of midwives, who were the primary providers of reproductive care. In 1847, doctors banded together to form the American Medical Association (AMA), which became the male-dominated authority on medical practices. The AMA scrutinized reproductive health care workers, 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 life or health of the patient, or for therapeutic reasons. As abortion became criminalized, the stigma surrounding it grew. By 1910, abortion was not only restricted but outright illegal at every stage of pregnancy in every state. These abortion 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.

The impact of criminalization

The criminalization of abortion sent the practice underground, resulting in a high death toll. Unsafe, illegal abortion was the cause of death for nearly 2,700 women in 1930 — almost one out of every five (18%) of recorded maternal deaths that year, according to the Guttmacher Institute.

The road to legalization

The first country to reform its abortion law was the Soviet Union in 1920. In the US, abortion law reform began in the 1950s, in response to increasingly alarming media coverage of unsafe, illegal abortions. In 1955, Planned Parenthood held a first-of-its-kind conference on the issue of abortion, and doctors who attended publicly called for abortion law reform.

In the late 1960s, a nationwide effort was underway to reform abortion laws in nearly every state. Between 1967 and 1973, four states — Alaska, Hawaii, New York, and Washington — repealed their abortion bans entirely, while 13 others enacted reforms that expanded exceptions.

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 remains a divisive issue in US politics and culture, and abortion laws vary widely from state to state.

Abortion bans nationwide

Abortion was a common practice in the history of the United States and was not always controversial. However, in the 19th century, public attention was brought to the health risks of unsafe abortions by unlicensed practitioners, and abortion became a public controversy.

Criminalization and Vilification

The American Medical Association (AMA), formed in 1847, was a male-dominated authority on medical practices. The AMA launched a full-fledged criminalization campaign against abortion and female abortion providers. State legislatures moved to ban abortion, and by 1880, all states had laws to restrict it. As abortion became criminalized, the stigma surrounding it grew.

By 1910, abortion was not only restricted but outright illegal at every stage of pregnancy in every state in the country. These abortion 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.

The Impact of Bans

By criminalizing abortion, the practice went underground, resulting in a high death toll. In 1930, unsafe, illegal abortion was the cause of death for nearly 2,700 women — almost one out of every five recorded maternal deaths that year, according to the Guttmacher Institute.

The Push for Reform

In response to the alarming media coverage of unsafe, illegal abortions, Planned Parenthood held a conference on the issue of abortion in 1955. The doctors who attended publicly called for abortion law reform, stating that laws should be rewritten to allow doctors greater latitude to provide abortion services, which would improve public health and access to reproductive health care.

The Road to Reform

Between 1967 and 1973, four states — Alaska, Hawaii, New York, and Washington — repealed their abortion bans entirely, while 13 others enacted reforms that expanded exceptions. 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.

Roe v. Wade

In 1973, the U.S. Supreme Court ruled that the due process clause of the 14th Amendment to the Constitution protects the right to abortion, making abortion services safer and more accessible throughout the country. The decision also set a legal precedent that affected dozens of subsequent Supreme Court cases.

The Hyde Amendment

In 1976, the Hyde Amendment was put in place, preventing federal dollars from being used in government insurance programs like Medicaid for abortion services, except in instances of incest, rape, or life-threatening risk to the pregnant person.

The Global Gag Rule

In 1984, former President Ronald Reagan introduced the Mexico City policy, or the global gag rule, which prevents foreign organizations that receive U.S. health aid from providing information on and referrals for abortions or advocating for abortion access.

Planned Parenthood of Southeastern Pennsylvania v. Casey

This landmark case in 1992 reaffirmed that the Constitution protects the right to abortion. However, it created an "undue burden" framework, making it more difficult to challenge laws that were less than absolute prohibitions on abortion.

Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America

In 2007, the Supreme Court upheld the first federal legislation to criminalize abortion, allowing Congress to ban certain second-trimester abortion procedures. Because the legislation does not contain an exception for the patient's health, the Supreme Court effectively overruled a key component of Roe v. Wade.

Whole Woman's Health v. Hellerstedt

In 2016, the Supreme Court ruled that two Texas abortion restrictions were unconstitutional as they would shut down most abortion providers in the state and impose an "undue burden" on access to safe, legal abortion.

June Medical Services v. Russo

On June 29, 2020, the Supreme Court struck down a medically unnecessary law that was nearly identical to the one it had struck down in Whole Woman's Health. This law would have made abortion virtually inaccessible in Louisiana.

Texas Six-Week Ban

On September 1, 2021, Texas implemented a law banning abortion at approximately six weeks of pregnancy — before many people even know they're pregnant. The AMA denounced the Texas abortion ban, but the Supreme Court allowed it to take effect.

Dobbs v. Jackson Women's Health Organization

In June 2022, the Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion and giving states total leeway to restrict abortion or prohibit it altogether.

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

As a result of the Supreme Court's decision, abortion policies and reproductive rights are now in the hands of each state. Currently, abortion is illegal in 13 states, and millions of people living in abortion deserts, mainly in the South and Midwest, are forced to travel to receive legal care.

Deaths from illegal, unsafe abortions

Deaths from unsafe abortions are a critical public health and human rights issue. The World Health Organization (WHO) estimates that at least 7.9% of maternal deaths are due to unsafe abortions, with higher proportions in Latin America, the Caribbean, and sub-Saharan Africa. In developing countries alone, 7 million women per year were treated in hospital facilities for complications of unsafe abortion.

Unsafe abortions can lead to a range of physical and mental health complications, including:

• Incomplete abortion (failure to remove or expel all pregnancy tissue from the uterus)
• Haemorrhage (heavy bleeding)
• Uterine perforation (caused when the uterus is pierced by a sharp object)
• Damage to the genital tract and internal organs (e.g. urinary and stool incontinence from vesicovaginal or rectovaginal fistulas)
• Infection
• Sepsis
• Genital trauma
• Necrotic bowel

Unsafe abortion practices were a significant concern in the United States before 1973, with nearly every large hospital having a "septic abortion ward" to deal with the complications that accompanied an incomplete abortion. In 1971, 17-year-old Becky Bell died from an unsafe abortion in Indiana, where parental consent was required for a safe and legal abortion. In another case, Rosie Jimenez died from sepsis in 1977 following an abortion procedure performed by an unlicensed midwife.

The risk of death from carrying a child to term in the U.S. is approximately 14 times greater than the risk of death from a legal abortion. However, the illegality of abortion does contribute to maternal mortality, and restrictive abortion laws are associated with higher rates of unsafe abortions.

The role of international human rights bodies in calling for law reform

International and regional human rights bodies have played a critical role in transforming national-level abortion laws. They have influenced domestic high court decisions on abortion and served as a critical resource in advancing law and policy reform.

Courts in countries such as Argentina, Bolivia, Brazil, Colombia, and Nepal have directly incorporated these standards into groundbreaking cases liberalizing abortion laws and increasing women’s access to safe abortion services. These norms have also underpinned national-level abortion law and policy reform, including in countries such as Spain, Rwanda, Uruguay, and Peru.

International and regional human rights bodies have gone beyond consensus documents in recognizing abortion as a human rights imperative and acknowledging the range of human rights violations that stem from restrictive abortion laws and lack of access to safe abortion services. Through a series of individual communications, UN treaty monitoring bodies, which oversee and provide authoritative interpretations of states’ obligations under UN human rights treaties, have clearly established that when abortion is legal under domestic law, it must be accessible in practice.

Furthermore, through their general comments, general recommendations, and concluding observations, treaty bodies have affirmed that states must ensure that legal abortion services are available, accessible (including affordable), acceptable, and of good quality. They have urged states to abolish procedural barriers to abortion services, such as third-party authorization requirements, mandatory waiting periods, and biased counseling. To ensure access to abortion, states should adopt relevant legal and policy measures, including enacting clear guidelines outlining the conditions under which abortion is legal, and should provide financial support for those who cannot afford abortion services.

States should also guarantee the availability of skilled health care providers who can offer safe abortion services and ensure that provider refusals on the grounds of religion or conscience do not interfere with women’s access to services. States must also ensure that women receive confidential and adequate post-abortion care, which must not be conditioned upon admissions by women that will be used to prosecute them for undergoing abortions illegally, as this may amount to cruel, inhuman, and degrading treatment.

Moreover, treaty bodies have regularly and explicitly called on states to decriminalize and ensure access to safe abortion services and have repeatedly recognized the connection between restrictive abortion laws, high rates of unsafe abortion, and maternal mortality. They have condemned absolute bans on abortion as being incompatible with international human rights norms and have urged states to eliminate punitive measures for women and girls who undergo abortions and for health care providers who deliver abortion services.

In addition to the treaty monitoring bodies, the Special Procedures of the United Nations Human Rights Council have also recognized abortion as a human rights concern. For example, Anand Grover, when he was Special Rapporteur on the right to health, noted that laws criminalizing abortion lead to higher numbers of maternal deaths, and poor mental and physical health outcomes while “infringing upon women’s dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health.”

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