America’s Complex History of Abortion Laws

By Rachel Puryear

As the Supreme Court majority currently drafts a shamefully cruel and anti-scientific opinion overturning the 49-year-old Roe v. Wade, a landmark decision which guaranteed the right to access abortion, pro-choice forces are gearing up to battle for the fundamental right of basic bodily autonomy yet again. We’ve seen this coming for a long time, but especially since 2016, even though we were told at the time that we were overreacting. Sometimes, we hate being right.

By the way, note that the anti-choice Supreme Court majority are doing this dirty deed behind a newly constructed fence, so that you can’t heckle them from outside as they get ready to turn back the clock on incredibly personal reproductive rights that have profound lifelong implications. However, these same kind of people also think that requiring nosy anti-choice protestors to stand back a few yards from people entering a clinic for medical care so that they cannot harass and assault patients is an infringement upon free speech. Go figure.

A protester holding up a sign reading, “No forced birth”. By Gayatri Malhotra.

In gearing up for battle, it’s a good idea to know more about the complex history of abortion laws in the United States. Roe v. Wade is certainly a key part of that history – but having a broader picture is also helpful. Therefore, let’s explore even more about the interesting history of abortion laws, from colonial times through the present.

In addition, towards the end of the post, I’ll discuss why I’m also honoring the memory of those who died fighting for and providing reproductive justice and services this Memorial Day.

Someone holding up a poster of Justice Ruth Bader Ginsburg, which reads a quote from her, “When Injustice Becomes Law, Resistance Becomes Duty.” By Gayatri Malhotra.

Before the Mid-19th Century:

Before European colonization of the Americas, abortions were common for many indigenous women by way of abortifacient herbs. From the time the Americas were first colonized by Europeans, up until around the time of the American Civil War; there were no formal prohibitions on abortion in (what is now) the United States.

During this early colonial period of time, common law prohibited abortions after “quickening” – when first fetal movements were felt, usually around the fourth month, except to save the mother’s life. Even then, there wasn’t much in the way of enforcement, probably in part because enforcement would have typically been very impracticable at that time (as detecting and monitoring pregnancies was less certain). This common law was brought from European common laws of that time.

Interestingly, this “quickening” standard is actually much more permissive than what many current religious extremists would now like to impose. Nonetheless, the quickening standard also out of date with current medical knowledge, and advances. In recent decades, the medical field has learned that there is no medical significance to quickening in terms of the safety or practicability of abortion. Advances in surgical procedures generally have also made later term abortions much safer than they were centuries ago.

Furthermore, abortions performed after the first trimester are usually ones that are necessary for the health of the mother, or are due to a non-viable fetus; and these kinds of problems sometimes do not show up until later. The few remaining later-term abortions are usually because the pregnant woman/girl/person had trouble obtaining an abortion earlier, a problem that’s eliminated where abortion is easily accessible; or a lack of support from the father.

A protestor holding up a sign reading, “Hands off my hooha!!!” By Gayatri Malhotra.

For some medical context; note that until recent decades, surgeries of any kind were not nearly as advanced as they are today; and infection control, pain control, and bleeding control were all also much less developed than they are now. Therefore, surgical abortions centuries ago were rare and dangerous. Abortions in this time period were usually performed with abortifacient herbs and concoctions.

Enslaved Women:

Modernly, the “black women have more abortions, so abortion is racist” argument is a favorite of white supremacists and anti-choice activists. (There’s a huge overlap between white supremacists and anti-choicers, of course.) These are, unsurprisingly, the same kind of people who feel they are too fragile to learn critical race theory and better understand the reasons why so many women of color are faced with such difficult decisions in the first place.

Racism and white supremacy have always been part and parcel of the anti-choice movement. White slaveowners didn’t want enslaved women aborting what they saw as their future property, and of course denied enslaved people any autonomy over their own body and life, anyway. Accordingly, slaveowners could and did prohibit enslaved people from having abortions, regardless of any official laws – or the lack thereof – on the books.

Nevertheless, some enslaved women were able to successfully perform abortions for themselves in secret, using abortifacient herbs.

Protestor holding up a sign reading, “Reproductive freedom voter”. By Gayatri Malhotra.

A War on Midwives Became the War on Women’s Health Care

Before the mid-19th century, midwives generally handled all aspects of maternal care – including prenatal care and delivering babies, but also birth control (it was more limited, but there were ways to at least reduce births); and yes, abortions. These were virtually always services that women performed for other women. As has been true throughout world history, these events were and still are all normal aspects of life for women (and female-bodied people) of all colors and classes.

Midwives performing maternal services as the norm began to change in the United States, though, when the American Medical Association formed in the 1840s. The physicians forming the AMA were men, as were physicians generally at this time.

These founding AMA physicians lacked much knowledge or expertise in maternal care and reproductive health, especially compared with midwives. Nonetheless, the AMA wanted to take over the profitable business of midwifery, and they were supported by churches run by men who wanted to control women’s bodies.

The Mid-Nineteenth Century Through Roe v. Wade:

Right from the start; the anti-choice movement was about controlling women’s sexuality, not about babies; and this has always been the case. The actions of the anti-choice movement have consistently demonstrated this point, in spite of their words. The only efforts which have ever consistently and effectively reduced the number of abortions and saved the lives of already-existing children have come from the pro-choice movements.

Nonetheless, the AMA ensured that physicians took over the practice of providing maternal care services in the mid-19th century, and displaced midwives from such – by passing laws restricting the provision of reproductive care services to physicians, including abortion. Except that these physicians didn’t provide abortions, they – with the help of powerful patriarchal churches – lobbied for states to outlaw abortions. Interestingly, it seems that many men in power may have been unaware of the existence of abortions before these events began to occur.

By 1880, all U.S. states had laws restricting abortion care. By 1910, all U.S. states had made abortion care illegal. Some states allowed exceptions to save the mother’s life, but this decision was at the sole discretion of the physician – and that’s a lot of power to have over someone else’s life.

Protestor holding up a sign reading, “Motherhood should be a choice, not a consequence.” By Gayatri Malhotra.

This same time period also saw increasing immigration to America from around the world. Anti-choice activists, the most prominent and powerful of whom were white men from the wealthier classes, also viewed restricting abortion and birth control as a means of forcing white women to have more children. The anti-choice movement has always been characterized by a sense of white nationalism on the one hand, and wanting white women to have more children; and on the other hand, denying basic health care to poor women and women of color, with a callous indifference to the consequences of such for them and their children.

Of course, some women were able to get around the abortion bans, and obtain illegal but safe abortions. Such women had means (which meant they were relatively wealthy and mostly white); and either had access to money that they could control, or had someone in their lives who did and who was willing to help them. Those were still big if’s, although some fortunate women benefitted from it.

And of course, where wealthy and powerful men wanted their wives/daughters/mistresses to have abortions, somehow that’s never been too difficult to arrange. Even the most rabidly anti-choice people have abortions/get someone to have an abortion when they want it to happen.

Most women, though, lacked meaningful access to a safe abortion during its prohibition, and many suffered greatly and even died after turning to illegal and unsafe abortions (including self-performed abortions). In 1930, one in five (recorded) maternal deaths was from an unsafe abortion.

Protestor holding up sign reading, “Girls just wanna have rights”. By Gayatri Malhotra.

In 1955, Planned Parenthood held a first-ever national conference on abortion, following increasing media coverage of deaths from illegal, unsafe abortions. The doctors who attended the conference – in sharp contrast to the doctors who formed the AMA a century prior – then publicly called for abortion care reform, an even bolder move then than it is today.

In the 1960s, as civil rights and women’s rights advocacy and activism were defining the era and reshaping the American social landscape, abortion reform started to take off.

In 1966, in a trial known as the Trial of the San Francisco Nine; nine respected physicians in California were sued by the State Board of Medical Examiners – thereby threatening the loss of their medical licenses – for performing abortions on women who had been exposed to rubella, a disease which causes serious birth defects. Doctors across the country, including 128 medical school deans, came to the defense of the San Francisco Nine. The result of this was one of the country’s first abortion reforms in the U.S., whereby California amended its abortion law to allow hospital committees to approve abortion requests in 1967. In 1970, the State Board finally dropped its lawsuit against the brave San Francisco Nine.

In 1969, the pro-choice advocacy group NARAL – the National Association for the Repeal of Abortion Laws – was established at the First National Conference on Abortion Laws in Chicago, Illinois. NARAL was the first advocacy group founded solely for the purpose of campaigning for the legalization of abortions.

In the late 1960s and early 1970s, efforts were underway to repeal abortion bans in nearly every state. Such efforts included the work of social justice activists, health care providers, members of the legal community, many clergy (many churches and people of faith can and do support choice), and more.

Between 1967 and 1973, four states – New York, Washington, Alaska, and Hawaii – repealed their abortion bans entirely. Thirteen other states also relaxed their abortion laws, allowing for certain exceptions such as where a pregnancy was dangerous for the mental or physical health of the patient (instead of only to save the patient’s life), exceptions for fetal abnormalities, and exceptions for pregnancies resulting from rape or incest (for many reasons, though, proving those latter two is tricky).

Protestor holding a sign reading, “Your reps’ mistresses will always have access to safe abortions.” By Gayatri Malhotra.

In 1970, one day after New York legalized abortion, a Planned Parenthood health center in Syracuse, New York became the first Planned Parenthood facility to provide abortion services. In the following couple years, two-thirds of abortion patients in New York had traveled there from out of state – mainly from states where abortion was still illegal. Some states which had legalized abortion would still only perform them on their own residents, but New York had no such restriction.

Finally, in 1973, the landmark Supreme Court decision in Roe v. Wade ruled that the Due Process clause of the Fourteenth Amendment to the U.S. Constitution protects the right to abortion. Particularly, the Supreme Court recognized for the first time that the constitutional right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.

Roe v. Wade Through the Present:

It’d be nice if Roe v. Wade was the end of it, but unfortunately, that’s not how it happened. What has followed since has been numerous restrictions on bodily autonomy and the right to choose, and anti-choice efforts to chip away at the fundamental right to decide whether to continue to to terminate a pregnancy.

In 1976, the deeply racist Hyde Amendment was enacted, effectively barring the use of Medicaid funds for abortions. Medicaid is supposed to serve very poor people, and so the Hyde Amendment prevents poor women, women of color, and women with disabilities from accessing the fundamental right to abortion. Financial access matters.

  • Also, note: Hillary Clinton’s 2016 platform including repealing the Hyde Amendment…but her emails!

In 1984, then-President Reagan signed the Global Gag Rule, preventing foreign organizations which receive U.S. aid from providing abortions, or even information on or referrals for abortion services. This, of course, harms poor women around the world who need abortion care. The Global Gag Rule has been a political football since then, with anti-choice administrations reinstating it and pro-choice ones repealing it.

In 1992, the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey, which created the “undue burden” framework – thereby ushering in numerous state laws making it more difficult access abortion care.

In 2007, in Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, the Supreme Court upheld criminal bans on certain second-trimester abortion procedures, even where such procedures were the best way to protect the patient’s health. This undermined a key protection of Roe v. Wade, whereby the patient’s health was of paramount concern.

Protestor holding sign reading, “Mandatory vasectomies! Does that make you uncomfortable???” By Gayatri Malhotra.

In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down two Texas abortion restrictions because they would shut down most of the state’s abortion providers, and thereby pose an undue burden on abortion access in that state.

In 2020, in June Medical Services v. Russo, the Supreme Court struck down a Louisiana law which was very similar to the Texas law it had struck down in Whole Woman’s Health. This was the last time Justice Ruth Baser Ginsburg ruled on an abortion case before she passed away later that year.

In 2021, Texas passed a very dangerous law that bans abortions after six weeks – which is before many pregnancies are known. Although the AMA denounced this ban, the Supreme Court nonetheless allowed it to take effect.

Did you know? About 80% of Americans now want abortion to stay legal.

Also – the “Roe baby”, whose mother sought an abortion in Roe v. Wade, has broken her silence after many years, and it’s a fascinating interview. Her view of what happened might surprise you.

For Memorial Day, Those Who Fought for Freedom Include Reproductive Freedom Fighters, Too

As this post is being written and published, it’s Memorial Day weekend again. Americans are gathering for celebration of a paid day off if they’re lucky, parties, vacations, and other fun things. Some will take a somber moment of remembrance for those who gave all for the greater good, others will just enjoy the day, and some will still have to work. We rightfully celebrate our veterans this weekend.

At the same time, there are many more women, men, and people who also fought for freedom, including many who gave their lives for it; who aren’t normally included among those being honored this weekend, but who deserve to be, too – for their fight is just as critical as any for the freedom of (at least) half the population.

Protestor holding up sign reading, “Not yours to control”. By Gayatri Malhotra.

That includes (though is not limited to) those who have fought and sometimes died for reproductive choice and freedom over the decades and centuries and millennia. A few of these people are well known, some made news headlines at one point, but most aren’t known by name or face. However, without the sacrifices they all made and which some of them died for, and the freedoms they have and continue to fight for; there is no true and meaningful freedom.

There won’t be national holidays, parades, or even widespread backyard barbecues honoring the sacrifices and memories of reproductive freedom fighters and providers. The surviving ones won’t get health benefits, or zero-down mortgages for their public services. But nonetheless, their legacy will live on more quietly – in the form of saved lives, improved health, people living a better quality of life, stronger families and communities, and more justice in a world that desperately needs more of it.

Thank you, dear readers, for reading, following, and sharing. Here’s to choice, to accessible and meaningful reproductive freedom for all, to those who fought for reproductive choice and freedom, to honoring the memory of those who died fighting for and providing care, to honoring the memory of those who died because of a lack of reproductive freedom by never letting that happen again, and to the fight that must and will continue.

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