An Abbreviated History of Abortion Access in the U.S.
A visual representation of the content of this post! Note that all dates are “by this date” and not “on this date;” i.e. abortion was not fully legalized in 1974, but rather all states had access to legal abortion by 1974.
“The emphasis must not be on the right to
abortion but on the right to privacy and reproductive control. ”
Abortion laws in the United States have spanned from full access to felony. This post aims to give an outline of the major legal milestones of the federal stance on abortion in the United States. Creating legal pathways for safe abortion is an important element to abortion access, but legalizing abortion is just one of many axes that compose access: factors like race, social stigmatization, gender, and sexuality all affect a person’s access to reproductive healthcare. As such, this post only takes a base-level approach to abortion access in this country. However, as the Supreme Court may see another abortion case in coming years, it is helpful to understand the historical framework upon which Roe v. Wade was established.
Here is the thing about talking about abortion: we have never really had the words to describe precisely what abortion is, or what the issue is, or when specifically an act moves from “not abortion” to “abortion.” From the early 1800s to today, our laws have been permeated by pseudo-science, fear, and––little by little, consistently––thrusts forward of self-determination and justice headed by people with uteruses. Understanding that so much of the political framework for abortion has been couched in misinformation, I’ve marked where current scientific knowledge disproves assumptions of the past and present.
During the 18th and early 19th centuries, English common law–– applied to the nascent United States of America––dictated that abortion was only illegal after “quickening,” or the beginning of fetal movement.* Early induced abortions were not understood to be harmful at all; rather, “At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view,” (When Abortion Was a Crime, Leslie J. Reagan).
* NOTE: there is no evidence that fetal movement is more significant a stage in development than any other.
In the 1820s, the nation’s first anti-choice movement was created. Post-“quickening” abortions, after about the third trimester by today’s terms, become a felony in some states. As more scientific understanding grew about the process of fetal development, repulsion of abortion and the “poisons” used to achieve it grew too, in both public and scientific communities. Despite this, the abortion industry was growing––more and more “poisons” were being developed and sold each year.
By the 1840s, abortions are widely practiced before “quickening,” primarily through self-concocted herb mixtures and through drugs available for purchase. Unfortunately, these drugs, or “poisons,” also killed many of the people who took them. Laws were written to make these dangerous abortifacients harder to obtain, but in practice the industry soared.
By 1900, several factors converged to standardize abortion as a felony in all states. As scientific knowledge grew, doctors came to understand that “quickening” was an arbitrary marker of development. Doctors began to reason that if quickening was an insignificant marker, then post-quickening abortions were no different than pre-quickening abortions. As such, they began to look down upon abortions at any stage of the developmental process. Furthermore, women were beginning to attempt to enter the field of medicine, something sexists (AKA, most people in power) wanted to quell. In order to stymie the burgeoning number of women doctors, anti-abortion campaigns argued that women doctors would be more likely to give abortions.
Moreover, they said that abortions were a promiscuous act,* so women doctors were therefore promiscuous themselves, and thus unfit to attend medical school. Developments in medical science coupled with a desire to block women from entering the field of medicine converged to promote the idea of abortion as a criminal act. Though all states considered abortion a felony, some allow abortions in cases of rape, incest, or threat to the life of the pregnant person.
* NOTE: This reasoning, obviously, is inane; and yet, this type of language is still used today. 1) obtaining an abortion is not a sexual act, and 2) promiscuity does not mark a lack of virtue or worth.
Even though all states consider abortion a felony, people continue to get abortions. This leads Margaret Sanger to found the American Birth Control League (which will later become Planned Parenthood) in 1921 to help people gain autonomy over their own reproductive health. It was founded on the mission: “We hold that children should be
Conceived in love;
Born of the mother's conscious desire;*
And only begotten under conditions which render possible the heritage of health.
Therefore we hold that every woman must possess the power and freedom to prevent conception except when these conditions can be satisfied.”
*NOTE: Not just women get pregnant! Not all pregnant people are mothers!
NOTE FROM ALEX: With the passing of 1954’s Brown v. Board of Education case, the right mobilized the evangelical right against the issue of abortion––framing it as a moral and religious issue––while using those votes for the main purpose of maintaining school segregation in religious schools. This is a major reason why abortion became a controversial political subject and an anxiety of the evangelical right. Important background for the post going forward!
In 1962, Sherri Finkbine rose to fame. After learning her fifth pregnancy would have fatal fetal abnormalities as a result of sleeping pills she didn’t know would endanger the pregnancy, Finkbine shared her story anonymously with the Arizona Republic. She hoped to warn other people hoping to conceive of the dangers of the pill. However, the article focused instead on her plans to get an abortion, and her identity was soon leaked. At this time, abortions were only legal in a case of danger to the pregnant person’s health: Finkbine’s story became a national debate. She had to travel to Sweden to get her abortion, where it was confirmed that her baby had fatal abnormalities. Finkbine’s story is marked as a turning point, because a majority of people in the U.S. believed she did the right thing. Moreover, it is a testament to the class divides that banning abortion enforce, wherein rich people will always have the opportunity to obtain abortions, while poor people will not.*
*NOTE: Sherri Finkbine’s story also brings up an important axis of the pro-choice discussion: the rhetoric around fetuses that will develop disabilities. While Finkbine’s pregnancy was never viable, you can read more on this discussion topic at the end of the post.
In 1964, Gerri Santoro died in a hotel room after attempting to perform a self-induced abortion. After fleeing her abusive husband, she became pregnant in an extramarital affair. When her husband announced that he was coming to visit her, Santoro feared for her safety. She attempted to induce abortion in a hotel room, and died as a result. Her body was found the next day by a maid, and the image of her corpse taken by the police became an image of the pro-choice movement, demonstrating the danger of self-induced abortions in a country where safe abortions were outlawed.
In 1965, the Supreme Court case Griswold v. Connecticut overturned an 1873 law that outlawed contraceptives in the state of Connecticut. Griswold, representing a Hartford Planned Parenthood clinic, brought the case to the Supreme Court after being arrested for distributing contraceptives. The Supreme Court ruled that denying contraceptives merited an invasion of marital privacy. As such, married couples were granted the right to birth control.*
*NOTE: Even today, marriage represents a highly-incentivized institution bestowing privilege in respect to reproductive rights, citizenship, and other legal protections.
In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or harm to the mother*––all other states still outlawed abortion in all cases except threat to the life of the pregnant person. This led to a cascade of state-by-state laws: Washington and New York soon adapted their laws to allow abortion until about the 24th week, for example.
*NOTE: the law used the “mother” framework which, as we have discussed, is a non-expansive and incomplete term.
In 1971, United States v. Vuitch made its way to the Supreme Court, a case determining if DC’s law outlawing abortion except in cases detrimental to the pregnant person’s health was unconstitutionally vague. Vuitch had been giving abortions to women outside of the purvey of what the government had determined affected the “health” of the pregnant person. Vuitch lost the case, but it had significance nonetheless: in this case, abortion was treated as a surgery like any other; it paved the road for the Supreme Court to take on abortion cases; and it affirmed that a person’s health involves both physical and mental wellbeing.
For instance, in 1972, the Supreme Court ruled on Eisenstadt v. Baird, a case that confirmed unmarried persons’ rights to contraceptives. Citing the Equal Protection Clause of the Constitution, the Supreme Court ruled that Massachusetts’ laws prohibiting “crimes against chastity” could not prevent unmarried persons from access to contraceptives while married couples were allowed access.
In 1973, the Supreme Court ruled on Roe v. Wade, a case that deemed a person’s right to an abortion protected under a right to privacy and due process. Norma McCorvey, AKA Jane Roe, found herself pregnant at 21 with a third child and unable to obtain an abortion in Texas. Her case made its way to the Supreme Court, where the court ruled that a right to privacy protects those seeking abortions. The case also legally established fetal viability––the point at which a fetus, with or without artificial aid, might live on its own––as the point in which the state must protect the fetus’ potential life. Roe v. Wade decided a fetus was generally viable at the third trimester of a pregnancy. After the Roe v. Wade ruling, all states had to allow abortions until the third trimester.
In 1992, the Supreme Court had its first opportunity to overturn Roe v. Wade, when it ruled on Planned Parenthood v. Casey. Planned Parenthood challenged the state of Pennsylvania’s abortion laws, many of which imposed barriers upon a person’s ability to obtain an abortion (like demanding spousal notice or parental consent prior to the procedure). Planned Parenthood v. Casey established two important amendments to the rules established in Roe v. Wade:
the undue burden standard, which "requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer,” i.e. if the barriers imposed effectively block the access the law grants, they are considered undue burdens and cannot exist.
The trimester system was dismantled, and instead the court considered fetal viability on an individual basis, as viability depends on many factors, such as medical resources available and the specific circumstances of the pregnancy.
Planned Parenthood v. Casey upheld Roe v. Wade rather than overturning it, an important affirmation of the rights Roe v. Wade protects. However, where Roe v. Wade afforded a right to abortion without restriction, Planned Parenthood v. Casey’s introduction of “undue burden” introduced a more restrictive read of Roe. Planned Parenthood v. Casey established explicitly that abortion access need not be universal; rather, there simply cannot be too many barriers to access.
A lot of time has passed since 1992. Since the last abortion cases were seen by the Supreme Court, all other changes have happened on a state-by-state basis. If Roe v. Wade gets overturned, individual states’ laws will define access (check out your state here). Moreover, more happened in the fight for abortion access than was listed here, particularly with respect to individual activism. Finally, the U.S.’s trajectory isn’t universal––other countries have followed different paths and reached distinct endpoints.
FURTHER READING:
More on the court cases mentioned above: here.
Disability and the pro-choice movement: The Inadequacy of “Choice”: Disability and What’s Wrong with Feminist Framings of Reproduction.
State-by-state analysis of abortion laws: here