History of Abortion Legality in the United States

Molly Gonzales | Editor in Chief

Individuals born with uteruses know all too well the ways in which their bodies have become political playgrounds of the state. The past few years have brought with them some of the most egregious abortion restrictions the country has ever seen. Social and cultural restrictions like glaring violence from anti-abortion groups including, but not limited to, murdering of abortion doctors and harassment of individuals seeking treatment, has contributed to the dangerous legal and political climate we now find ourselves in. The religious right is so far up our uteruses it’s hard to think there was a time when their rosaries weren’t fully wrapped around them. The CDC reports that on average, one in four women in the United States will undergo the procedure at some point in her life. (CDC) However, these numbers are hard to track given the still all too common “back-alley abortion,” or unsafe, unclean and uncertified abortion. according to the World Health Organization, approximately 70,000 women die each year globally due to unsafe abortions, 25% of which are adolescents aged 15-19. (WHO) Additionally, they weren’t always illegal in the United States and the move to their illegality was spawned out of growing racial tensions in the mid 1800s during immigration booms. The white bourgeoisie at this point, was fearful of the non-white immigrants arriving to the United States and having more children than white Americans and thus wanted to prevent white people from aborting their children in order to uphold a white dominant society. However, it wasn’t until 1973 when the supreme court case Roe v. Wade federally legalized the right for people with uteruses to have abortions. In this time between the mid 1800s and 1970s, however, women still terminated their pregnancies, just not always under safe and clean medical guidance. While record keeping of “illegal” abortions is extremely limited, prochoice.org estimates that roughly 1.2 million people each year had an unsafe abortion in the years leading up to Roe versus Wade. (prochoice.org) Analyzing this legal history can reveal glaring societal trends that have the radical potential to help us navigate this era of intolerance. 

Historian Leslie Rogan completed what is referred to as one the most comprehensive analysis of abortion legality in the late 1990s with her book, When Abortion Was a Crime, in which she claims the piece as the first study of the entire era of illegal abortion in the United States. “Abortion was not always a crime,” she opens her piece, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law.” (Rogan). It was during “quickening” or when one can physically feel their fetus kick, that the termination of pregnancy would be seen as illegal. These laws regarding abortion, which began in the early 1800s however, were more concerned with protecting the mother, rather than the unborn fetus. Many over the counter medicines were widely available to terminate your pregnancy, however they were increasingly dangerous and often left the women themselves dead. Thus, one of the first laws regarding abortion came in Illinois and it regulated those who sold and advertised the “abortifacient drugs” and began taking protective measures from a poison control standpoint. What’s most fascinating about these particular types of laws is that they did not punish women for  inducing their abortions, but the doctors responsible for toxic abortion medications. The 1800s marked an era of sharp distinctions between private and public life and thus family planning and reproduction were seen as private and not intended to be regulated by the state. In fact, by the mid 1800s the abortion business was booming throughout major cities with advertisements in newspapers for medicines and services that would terminate a pregnancy. 

All of this changed upon the founding of the American Medical Association in 1847, an organization made up of power hungry white men who felt a moral obligation, not to the practice of medicine, but to white supremacy. The AMA practically went on a crusade throughout the country preaching the immorality of terminating one’s pregnancy and spreading their anti-abortion propaganda along the way. As the century progressed and some women of race and class privilege began to see themselves gaining power, the AMA worked even harder to suppress their autonomy. The initial abortion illegality during the turn of the century, thus, was fueled by both the power hungry AMA and new changing socioeconomic and racial relations throughout the United States. Between 1880 and the mid-1920s, the US experienced what is commonly referred to as the “The Great Wave”, an epoch of history that ushered in an average of 600,000 immigrants every year. This massive immigration boom escalated the racist fears of white america. They feared whiteness would no longer be the dominant racial demographic and thus the entire framing of abortion legality shifted from white middle-to-upper class women having a monopoly on accessibility, to the encouragement of family planning and birth control largely targeted on women of color and immigrant families of non-Anglo-Saxon origin. 

In 1921 Margaret Sanger founded what we know today as Planned Parenthood on an ideological platform of eugenics and racism. She published, “Woman and the New Race,” in 1920 which endorsed and perpetuated the intolerant fears of white america where she claimed contraceptives were paramount to, “assist the race toward the elimination of the unfit.” Sanger’s eugenicist agenda can be seen in who she provided the most and least access to birth control to. She advocated for free access to a plethora of birth control methods including sterilization to immigrants and communities of color, but rarely if ever to white, educated, middle-to upper-class people.  

Abortion rights and bodily autonomy blossomed into a paramount feminist issue throughout post-war 20th century. It wasn’t until the 1973 court decision Roe V. Wade, which dealt with the states’ grappling of regulation vs. liberty, that abortion legality was illuminated on the federal level. With this particular court decision being threatened nearly everyday by the stooges of Fox news and GOP, it is worth looking into what exactly the decision ruled and how it was influenced by the previous tumultuous century. On January 22nd 1973, a republican-nominated, entirely male, supreme court ruled that “a woman’s choice to have an abortion outweighs the state’s concern for prenatal life up until the point of viability”. The point of viability was determined to be around 24-28 weeks which medical science in the early 1970s pronounced was the point the fetus could survive outside of the womb. With that being said, states can legitimately challenge this ruling as long as it does not interfere with the point of viability. 

Abortion rights have become a forefront political issue in the 21st century with states like Alabama, Georgia, Louisiana, Kentucky, Mississippi, Ohio and many more passing bills over the past two years that restrict abortion access. While Alabama legislators voted in 2019 to ban all abortion entirely, other states have slowly chipped away at Roe V. Wade with “heartbeat laws” and “gag laws”. For example, Louisiana passed a bill in May of 2019 that illegalizes abortion after a fetal heartbeat is detected, typically around half way through the first trimester or after 6 weeks of pregnancy. While Alabama’s egregious bill was temporarily blocked in October of 2019 similarly to Ohio’s fetal heartbeat law of the same year, this conservative wave of abortion illegality reveals a right wing advance to challenge to Roe V. Wade. As of January 2nd of this year, over 200 members of congress, both democrats and republicans, urged the US Supreme Court through an Amicus brief to reassess their 1973 Roe V. Wade decision. So while we may let out a sigh of relief at the numerous blockings of these anti-abortion laws, the fate of Roe V. Wade and access to abortion across the United States is incredibly vulnerable. Perhaps the new conservative leaning bench will overturn Roe V. Wade, or perhaps they will gut the protections provided by the decision like banning a specific, widely-used, abortion procedure or redefine the viability of life. Four states, Louisiana, Mississippi, North Dakota and South Dakota, have issued “trigger bans” which means that if Roe V. Wade were to be overturned, a state wide abortion ban would immediately go into effect. Within the past four years of the current presidential administration, we can see a glaring trend of increased power within the states to determine who can terminate their pregnancies, when and why. Rarely, do we see this issue discussed outside of its modern political contexts and within one that recognizes the ever fluctuating nature of its legal history. In doing so, perhaps we can gain insight into how we can possibly grapple with the states seemingly constant attacks on bodily autonomy and the right for those with a uterus to make their own choices.