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History of Abortion Law in the US

-- By JenniferMorton - 26 Feb 2021

A topic I am interested in is the history of abortion laws in the United States. One prevailing theory on the origin of government intervention in the United States is that doctors in the nineteenth century wanted to corner the market on medical practice and saw criminalizing abortion as the pathway to do so (1). Midwives, apothecaries, and homeopaths were often employed by women seeking to terminate their pregnancies and ending that avenue for business more distinctly separated their services from doctors’ services. Doctors were organized through the American Medical Association and able to advance their interests. In 1821, Connecticut was the first to pass an explicitly anti-abortion law which outlawed, “willfully and maliciously [administering] any deadly poison, or other noxious and destructive substance,” with the intention of ending a pregnancy after the quickening with up to a lifetime imprisonment (2). This law can be seen as targeted at the remedies that apothecaries used to help assist women with their abortions, which were sometimes dangerous; it did not affect surgical methods (2). Missouri and Illinois followed with similar laws (2). This change illustrated a break from the traditional view towards more restrictive regulation.

The AMA spread information that abortion procedures were damaging, “[women’s] own health and the health of the nation,” (1). This campaign was extremely successful. Mohr wrote that by the turn of the twentieth century, the US, “completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and officially proscribed,” (2). Even distributing information about contraceptives and abortion became illegal in 1873 as part of the Comstock Laws.

The American Birth Control League was formed in 1916 by Margaret Sanger. This group existed in opposition to Comstock Laws by distributing information about and advocating for access to birth control. The League evolved into Planned Parenthood and served a role in the changing attitudes of the public. The feminist movement in the 1960’s and 1970’s in the US brought the topic of reproductive freedom to the forefront of the nation’s consciousness once again. After Sanger’s death, Planned Parenthood became a major proponent of abortion-rights—both establishing clinics and lobbying for legislation.

After some states began loosening their own anti-abortion legislation, the national government stepped in 1965 when the Supreme Court oversaw Griswold v. Connecticut and ruled that a Comstock Law in Connecticut which outlawed the use of any drug or device for contraceptive purposes was unconstitutional (3). The law violated a ‘right to privacy’ (for married couples) which can be inferred from the Bill of Rights (3). Griswold was reaffirmed in 1972’s Eisenstadt v. Baird which extended the right to birth control for unmarried people as well (4 Justice Brennan wrote, “If the right to privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters to fundamentally affecting a person as the decision whether to bear or beget a child,” (4). This landmark case set the precedent for Roe v. Wade.

The lawyers in Roe argued that, “the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses,” (5). However, the majority opinion, written by Justice Blackmun, acknowledges the American principle of federalism by stating, “that some state regulation in areas protected by that right [to privacy] is appropriate… The right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation,” (5). The majority opinion clarified how this balance was to be upheld by specifying the states can intervene in second trimester abortions for the health of mothers and can regulate or outlaw abortions in the third trimester, but not the first (5).

Supporters of legal abortion celebrated the Roe v. Wade decision as a victory as it struck down many anti-abortion laws throughout the states. However, this case was also a catalyst for those sided against abortion to organize more actively and intensely. The National Right to Life Committee is the oldest (and largest) anti-abortion group in the nation and was formed in 1967 in response to the growing prevalence of more liberal ideas about abortion (6). In 1973, after Roe, the group became autonomous and more active, growing in size and scope of action (6). Beyond traditional political routes such as lobbying politicians, the pro-life movement has done a lot of grassroots work, but much of it is not benign. In 1994, Congress passed the Freedom of Access to Clinic Entrances Act to prevent these activists from physically obstructing entrances, destroying abortion clinics’ properties, and intentionally injuring, intimidating, or interfering with patients.

Planned Parenthood v. Casey is another critical Supreme Court case on the topic of abortion legislation in the United States. This case brought five Pennsylvania provisions which restricted abortion access to the court. Both sides ultimately view this decision in a negative light. The case was deeply divisive, and no majority opinion emerged. A plurality opinion was written and accepted as the ruling as each section had a majority of justices joining; however, each section reached that threshold with different justices (7). They ruled to allow states to proscribe abortion after the point of viability—which differed from the ruling in Roe which protected all first-trimester abortions as well as all second-trimester abortions unless for the protection of a woman’s health (7). Justice O’Connor introduced an “undue burden” clause to replace the strict scrutiny previously used to evaluate the legality of anti-abortion laws (7). Any law affecting abortion access could be deemed constitutional if it didn’t place, “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” (7). This amendment gave a lot of leniency to states and is how most of the Pennsylvania provisions were upheld.

This topic is continuing to evolve as state legislatures make attempts to rollback abortion rights.

Works Cited

1. Mohr, J. C. (1979). Abortion in America: The origins and evolution of national policy. 2. Swanson, K. W. (2015). The doctor's dilemma: Paternalisms in the medicolegal history of assisted reproduction and abortion. The Journal of Law, Medicine & Ethics, 43(2), 312-325. doi:10.1111/jlme.12247 3. Griswold v. Connecticut https://1.next.westlaw.com/Document/Id4c70e349c1d11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default) 4. Eisenstadt v. Baird https://1.next.westlaw.com/Document/Id4c9a6519c1d11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default) 5. Roe v. Wade https://1.next.westlaw.com/Document/I2211f9c19bf011d993e6d35cc61aab4a/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default) 6. Karrer, R.N. (2011, July). The National Rights to Life Committee: Its Founding, Its History, and the Emergence of the Pro-Life Movement Prior to Roe v. Wade. The Catholic Historical Review 97(3), 527-557. The Catholic University of America Press. Project MUSE database 7. PP v. Casey https://1.next.westlaw.com/Document/I72e7a2ac9c9a11d991d0cc6b54f12d4d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)

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