In the United States, the history of abortion goes back much farther than the 1973 Supreme Court case Roe v. Wade, which made abortion legal and marked an important turning point in public health policy.
See also Legal Abortion in Canada.
Abortion Was Legal
Abortion has been performed for thousands of years, and in every society that has been studied. It was legal in the United States from the time the earliest settlers arrived. At the time the Constitution was adopted, abortions before “quickening” were openly advertised and commonly performed.
Making Abortion Illegal
In the mid-to-late 1800s states began passing laws that made abortion illegal. The motivations for anti-abortion laws varied from state to state. One of the reasons included fears that the population would be dominated by the children of newly arriving immigrants, whose birth rates were higher than those of “native” Anglo-Saxon women.
During the 1800s, all surgical procedures, including abortion, were extremely risky. Hospitals were not common, antiseptics were unknown, and even the most respected doctors had only primitive medical educations. Without today’s current technology, maternal and infant mortality rates during childbirth were extraordinarily high. The dangers from abortion were similar to the dangers from other surgeries that were not outlawed.
As scientific methods began to dominate medical practice, and technologies were developed to prevent infection, medical care on the whole became much safer and more effective. But by this time, the vast majority of women who needed abortions had no choice but to get them from illegal practitioners without these medical advances at their disposal. The “back alley” abortion remained a dangerous, often deadly procedure, while areas of legally sanctioned medicine improved dramatically.
The Medical Establishment
The strongest force behind the drive to criminalize abortion was the attempt by doctors to establish for themselves exclusive rights to practice medicine. They wanted to prevent “untrained” practitioners, including midwives, apothecaries, and homeopaths, from competing with them for patients and for patient fees.
The best way to accomplish their goal was to eliminate one of the principle procedures that kept these competitors in business. Rather than openly admitting to such motivations, the newly formed American Medical Association (AMA) argued that abortion was both immoral and dangerous. By 1910 all but one state had criminalized abortion except where necessary, in a doctor’s judgment, to save the woman’s life. In this way, legal abortion was successfully transformed into a “physicians-only” practice.
The prohibition of legal abortion from the 1880s until 1973 came under the same anti-obscenity or Comstock laws that prohibited the dissemination of birth control information and services.
Criminalization of abortion did not reduce the numbers of women who sought abortions. In the years before Roe v. Wade, the estimates of illegal abortions ranged as high as 1.2 million per year.1 Although accurate records could not be kept, it is known that between the 1880s and 1973, many thousands of women were harmed as a result of illegal abortion.
Many women died or suffered serious medical problems after attempting to self-induce their abortions or going to untrained practitioners who performed abortions with primitive methods or in unsanitary conditions. During this time, hospital emergency room staff treated thousands of women who either died or were suffering terrible effects of abortions provided without adequate skill and care.
Some women were able to obtain relatively safer, although still illegal, abortions from private doctors. This practice remained prevalent for the first half of the twentieth century. The rate of reported abortions then began to decline, partly because doctors faced increased scrutiny from their peers and hospital administrators concerned about the legality of their operations.
Liberalization of Abortion Laws
Between 1967 and 1973 one-third of the states liberalized or repealed their criminal abortion laws. However, the right to have an abortion in all states was only made available to American women in 1973 when the Supreme Court struck down the remaining restrictive state laws with its ruling in Roe v. Wade.
Roe v. Wade
The 1973 Supreme Court decision in Roe v. Wade made it possible for women to get safe, legal abortions from well-trained medical practitioners. This led to dramatic decreases in pregnancy-related injury and death.
The Roe case arose out of a Texas law that prohibited legal abortion except to save a woman’s life. At that time, most other states had laws similar to the one in Texas. Those laws forced large numbers of women to resort to illegal abortions.
Jane Roe, a 21-year-old pregnant woman, represented all women who wanted abortions but could not get them legally and safely. Henry Wade was the Texas Attorney General who defended the law that made abortions illegal.
After hearing the case, the Supreme Court ruled that Americans’ right to privacy included the right of a woman to decide whether to have children, and the right of a woman and her doctor to make that decision without state interference.
After Roe v. Wade
The reaction to Roe was swift. Supporters of legal abortion rejoiced and generally felt their battle was won. However, others faulted the Court for the decision. Those opposed to legal abortion immediately began working to prevent any federal or state funding for abortion and to undermine or limit the effect of the decision.
Some turned to measures directly aimed at disrupting clinics where abortions were being provided. Their tactics have included demonstrating in front of abortion clinics, harassing people trying to enter, vandalizing clinic property, and blocking access to clinics.
As time passed, the level of anti-abortion violence escalated. Increasingly, clinic bombings, physical attacks, and even murders endanger abortion providers and create a hostile environment for women seeking abortions.
Retreat from Roe v. Wade
Initially, the framework of Roe v. Wade was the basis by which the constitutionality of state abortion laws was determined. In recent years, however, the Supreme Court has begun to allow more restrictions on abortion.
For instance, the Supreme Court’s ruling in Planned Parenthood v. Casey in 1992 established that states can restrict pre-viability abortions. Restrictions can be placed on first trimester abortions in ways that are not medically necessary, as long as the restrictions do not place an “undue burden” on women seeking abortion services.
Many states now have restrictions in place such as parental involvement, mandatory waiting periods, and biased counseling. Only the requirement that a woman involve her spouse in her decision was disallowed.
A Timeline of Reproductive Rights
1821: Connecticut passes the first law in the United States barring abortions after “quickening.”
1860: Twenty states have laws limiting abortion.
1965: Griswold v. Connecticut Supreme Court decision strikes down a state law that prohibited giving married people information, instruction, or medical advice on contraception.
1967: Colorado is the first state to liberalize its abortion laws.
1970: Alaska, Hawaii, New York, and Washington liberalize abortion laws, making abortion available at the request of a woman and her doctor.
1972: Eisenstadt v. Baird Supreme Court decision establishes the right of unmarried people to use contraceptives.
1973: Roe v. Wade Supreme Court decision strikes down state laws that made abortion illegal.
1976: Congress adopts the first Hyde Amendment barring the use of federal Medicaid funds to provide abortions to low-income women.
1977: A revised Hyde Amendment is passed allowing states to deny Medicaid funding except in cases of rape, incest, or “severe and long-lasting” damage to the woman’s physical health.
1991: Rust v. Sullivan upholds the constitutionality of the 1988 “gag rule” which prohibits doctors and counselors at clinics which receive federal funding from providing their patients with information about and referrals for abortion.
1992: Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirms the “core” holdings of Roe that women have a right to abortion before fetal viability, but allows states to restrict abortion access so long as these restrictions do not impose an “undue burden” on women seeking abortions.
1994: Freedom of Access to Clinic Entrances (FACE) Act is passed by Congress with a large majority in response to the murder of Dr. David Gunn. The FACE Act forbids the use of “force, threat of force or physical obstruction” to prevent someone from providing or receiving reproductive health services. The law also provides for both criminal and civil penalties for those who break the law.
2000: Stenberg v. Carhart (Carhart I) rules that the Nebraska statute banning so-called “partial-birth abortion” is unconstitutional for two independent reasons: the statute lacks the necessary exception for preserving the health of the woman, and the definition of the targeted procedures is so broad as to prohibit abortions in the second trimester, thereby being an “undue burden” on women. This effectively invalidates 29 of 31 similar statewide bans.
2000: Food and Drug Administration approves mifepristone (RU-486) as an option in abortion care for very early pregnancy.
2003: A federal ban on abortion procedures is passed by Congress and signed into law by President Bush. The National Abortion Federation immediately challenges the law in court and is successful in blocking enforcement of the law for its members.
2004: NAF wins lawsuit against federal abortion ban. Justice Department appeals rulings by three trial courts against ban.