Eleanor Finch
Abortion has existed for as long as human beings have, and until the mid-19th century, it was a quiet reality in the US, legal until quickening (when fetal motion could be felt by the mother). The US Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion prior to fetal viability. The US Supreme Court's 1973 Roe v. Wade ruling enshrined abortion as a constitutional right, and for nearly 50 years, safe and legal abortion was a recognized federal constitutional right nationwide. However, abortion was outlawed in all states by 1910, and the battle for abortion rights has continued since, with the Supreme Court recently overturning Roe v. Wade in 2022.
| Characteristics | Values |
|---|---|
| Abortion existed before the US Constitution was written | Yes |
| Was abortion legal before the US Constitution was written? | Yes, until the mid-19th century |
| When did abortion become illegal in the US? | By 1910, abortion was illegal in all states |
| When was abortion re-legalized in the US? | 1973, with Roe v. Wade |
| When was Roe v. Wade overturned? | 2022, with Dobbs v. Jackson Women's Health Organization |
| Is abortion legal in the US now? | As of 2024, abortion is legal in some states and illegal in others |
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What You'll Learn
Abortion legality in the US
Abortion has existed for as long as human beings have existed, and until the mid-19th century, it was a quiet reality in the US. It was only in the late 1800s that outlawing abortion became a cause among US politicians, with the American Medical Association (AMA) taking aim at unregulated abortion providers. The AMA, formed in 1847, was male-dominated and excluded women and Black people from membership. They believed they should have the power to decide when an abortion could be legally performed and launched a criminalization campaign against abortion and female abortion providers. This kicked off a "century of criminalization", with all states passing laws to restrict abortion by 1880. By 1910, abortion was illegal at every stage of pregnancy in every state.
In 1973, the US Supreme Court case Roe v. Wade legalized abortion in the US, ruling that the due process clause of the 14th Amendment to the Constitution protects the right to abortion. This decision set a legal precedent and protected the right to abortion in all 50 states, making abortion services safer and more accessible. However, many states passed laws that made accessing abortion difficult, and in 1976, the Hyde Amendment, widely viewed as racist, became law. Despite this, for nearly five decades, the Supreme Court reaffirmed that the Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion prior to fetal viability.
In 2019, New York codified abortion rights and reproductive freedoms in state law, and in 2023, a majority of Ohio voters voted in favor of establishing a constitutional right to abortion up to the point of fetal viability. However, in 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, giving states the power to impose any regulation on abortion, as long as it does not conflict with federal law. This decision ended the federal constitutional right to abortion, and as of October 2022, 13 states had banned abortion. The legal status of abortion now varies considerably from state to state, with some states enacting stricter abortion laws and others working to protect abortion access.
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The role of the American Medical Association (AMA)
The American Medical Association (AMA) was established in 1847 and excluded women and Black people from membership. The AMA was keen to be taken seriously as a gatekeeper of the medical profession, and abortion services provided by midwives and other practitioners were an easy target. The AMA scrutinized reproductive health care workers, and the obstetric services they provided were phased out. The AMA believed that they should have the power to decide when an abortion could be legally performed.
In 1857, the AMA started the anti-abortion movement to wrest control of reproductive health from the purview of midwives. They launched a letter-writing campaign pushing state lawmakers to ban the practice, asserting that there was a medical consensus that life begins at conception. The campaign succeeded, and at least 40 anti-abortion laws were passed between 1860 and 1880. The AMA's position led to a century of criminalized abortion in the United States, pushing women, especially women of color, to risk their lives by visiting unregulated underground providers or attempting dangerous home abortions.
In 2013, the AMA and the American College of Obstetricians and Gynecologists submitted an amicus brief in support of affirmance in Planned Parenthood v. Abbott, stating that they "oppose legislative interference with the practice of medicine and a woman's relationship with her doctor." They affirmed that "access to safe and legal abortion is an important aspect of women's health care" and that "abortion is one of the safest medical procedures performed in the United States."
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The criminalization of abortion
In the early 1800s, medical literature and newspapers regularly mentioned herbs and medications as methods of abortion. However, in the mid-19th century, the American Medical Association (AMA), established in 1847, targeted unregulated abortion providers. The AMA, which excluded women and Black people from its membership, aimed to establish itself as a gatekeeper of the medical profession, and abortion providers, mostly midwives, became an easy target. The AMA launched a letter-writing campaign to state lawmakers, arguing that there was a medical consensus that life begins at conception rather than at "quickening" (when fetal motion can be felt by the mother). This marked the beginning of the anti-abortion movement in the US.
By the late 1800s, outlawing abortion had become a cause among US politicians, and state legislatures began to pass bans on abortion. By 1880, all states had laws restricting abortion, with some exceptions if a doctor deemed it necessary for the life or health of the patient or for therapeutic reasons. As abortion became criminalized, the stigma surrounding it grew, and by 1910, abortion was illegal at every stage of pregnancy in all states. These bans pushed the practice underground, leading to unsafe procedures and a high death toll. The criminalization of abortion also resulted in surveillance, arrest, and prosecution, with women facing humiliating police investigations.
The "century of criminalization" ended with the Roe v. Wade case in 1973, which legalized abortion nationwide. However, even after Roe, many states continued to pass laws restricting access to abortion, and the Hyde Amendment, a national policy viewed as racist, became law in 1976. In 2022, the Supreme Court overturned Roe v. Wade, allowing states to impose regulations on abortion, and since then, several states have enacted stricter abortion laws or resumed enforcement of pre-1973 laws.
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Abortion laws by state
Abortion laws in the US have gone through a tumultuous journey since the 1800s, swinging from criminalization to legalization and back again. The American Medical Association (AMA), formed in 1847, played a pivotal role in the "century of criminalization" that followed, as its members, predominantly male physicians with no expertise in reproductive health, campaigned aggressively against abortion. By 1880, all states had laws restricting abortion, and by 1910, abortion was outright illegal across the nation.
The landmark Supreme Court ruling in Roe v. Wade (1973) changed this by recognizing a constitutional right to privacy encompassing a woman's decision to terminate her pregnancy. This decision protected abortion rights across all 50 states, setting a precedent for subsequent cases. However, this federal protection was short-lived, as the Supreme Court overturned Roe v. Wade in 2022 with its ruling in Dobbs v. Jackson Women's Health Organization.
The reversal of Roe v. Wade has resulted in a highly varied legal landscape for abortion across different states. Some states, like Alabama, have made abortion entirely illegal, with stringent penalties for performing or facilitating abortions. Exceptions are made only to preserve the woman's life or physical health, excluding cases of rape, incest, or fatal fetal abnormalities. Other states, like Ohio, have established a constitutional right to abortion up to the point of fetal viability, with voters ratifying an amendment to that effect. Montana has also made abortion an explicit constitutional right, with minors not requiring parental consent.
In contrast, states like Florida have passed "heartbeat bills," banning abortion after a fetal heartbeat is detected, usually around six weeks. Colorado, on the other hand, rejected a similar amendment in 2008, and in 2022, passed the Reproductive Health Equity Act, protecting abortion rights and assuring individuals' fundamental right to make decisions about their reproductive health care. New York has also codified abortion rights and reproductive freedoms into state law, with proposals to allow taxpayers to contribute to an abortion access fund.
The current situation has resulted in a divide between “abortion deserts," where abortion is illegal and inaccessible, and "abortion havens," where care is still available. This disparity has created significant barriers for people seeking legal abortions, particularly for those in abortion deserts, who must travel long distances and face financial and logistical challenges.
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Abortion rights cases
Abortion was common in the history of the United States and was not always a public controversy. In 1821, Connecticut passed the first state statute legislating abortion in the United States, forbidding the use of poisons in abortions. By 1880, all states had laws to restrict abortion, with exceptions in some states if a doctor said the abortion was needed to save the patient's life or health, or for therapeutic reasons.
In 1847, doctors formed the AMA, which became the male-dominated authority on medical practices. The AMA scrutinized reproductive health care workers, and the obstetric services they provided were phased out. AMA members believed they should decide when an abortion could be legally performed, and they launched a full-fledged criminalization campaign against abortion and female abortion providers. This kicked off a "century of criminalization".
In 1970, a special three-judge court ruled that Texas's abortion laws were unconstitutional, violating the right to privacy found in the Ninth Amendment. This case, Roe v. Wade, reached the Supreme Court in 1973, which issued a 7-2 decision holding that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. This decision set a legal precedent that affected dozens of subsequent Supreme Court cases.
In 1992, the Supreme Court reaffirmed Roe's central holding in Planned Parenthood v. Casey, though it overruled Roe's trimester framework and abandoned its "strict scrutiny" standard in favor of an "undue burden" test. This made it more difficult to challenge laws that were less than absolute prohibitions on abortion.
In 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization, arguing that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition". This decision allowed states to impose any regulation on abortion, provided it satisfies rational basis review and does not conflict with federal law.
In 2023, a majority of Ohio voters voted in favor of establishing a constitutional right to abortion up to the point of fetal viability. In 2024, New York codified abortion rights and reproductive freedoms in state law. In the same year, a Georgia woman, Selena Maria Chandler-Scott, was arrested after emergency responders found her bleeding and unconscious following a miscarriage. Charges were later dropped, but the case sparked outrage as abortion rights supporters worried about the consequences of treating pregnancies like crime scenes.
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Frequently asked questions
Yes, abortion existed when the US Constitution was written. In the late 1700s and early 1800s, medical literature and newspapers regularly mentioned herbs and medications as abortion-inducing methods.
The US Constitution did not specifically address abortion. However, in 1989, the Supreme Court of Florida ruled that the privacy clause in the state's constitution protected the right to abortion. Later, in 1992, the US Supreme Court case Planned Parenthood of Southeastern Pennsylvania v. Casey recognised a woman's right to abortion prior to fetal viability.
Abortion was a relatively uncontroversial fact of life for the first century of the US's existence. It was legal until "quickening", an archaic term for fetal movement that usually occurs after four months of pregnancy. In the mid-19th century, the American Medical Association (AMA) targeted unregulated abortion providers, asserting that life begins at conception. This kicked off a century of criminalization, with all states restricting abortion by 1880 and banning it by 1910. These bans led to unsafe practices, high death tolls, and negative social consequences. In 1973, Roe v. Wade legalised abortion nationwide, recognising a constitutional right to privacy encompassing a woman's decision to terminate her pregnancy. However, this decision was overturned in 2022, allowing states to impose regulations on abortion.
