Simone Lawson
The legality of abortion in the United States has been a contentious issue for decades. While the Supreme Court has historically upheld Roe v. Wade, which protects the right to abortion under the Constitution, individual states have had varying laws and restrictions on the procedure. In 2023, voters in Ohio defeated an attempt to make changes to the state's constitution that would have made it more difficult to legalise abortion. In Arizona, the state Supreme Court ruled that a 1902 law, based on an 1864 law, disallowing nearly any abortion except in the case of a medical emergency, should be repealed in favour of a 15-week ban passed in 2022.
| Characteristics | Values |
|---|---|
| Abortion legality when the Constitution was ratified | Abortion was illegal in every state in the US by 1910. |
| Exceptions | Doctors could allow abortions to save the patient's life. |
| Reasons for criminalisation | White men in power supported abortion bans to encourage upper-class white women to have more children |
| Effect of criminalisation | Criminalising abortion sent the practice underground, resulting in a high death toll |
| Landmark cases | Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Whole Woman's Health v. Hellerstedt, Planned Parenthood Arizona v. Mayes, FDA v. Alliance for Hippocratic Medicine |
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What You'll Learn
Roe v. Wade
The US Constitution was ratified in 1788. While there is no specific mention of abortion in the Constitution, abortion was not illegal in the US at this time. In fact, it was common for women to use herbs and other methods to induce abortions. However, by 1910, abortion was illegal in every state in the country, with some exceptions to save the patient's life.
However, in 2024, the Supreme Court overturned Roe v. Wade in the case of FDA v. Alliance for Hippocratic Medicine, which brought into question the Food and Drug Administration's approval and rules around mifepristone. The Court's decision in this case effectively made abortion illegal in the US once again.
The Long Road to Ratification: The US Constitution
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The right to privacy
Abortion was not illegal when the US Constitution was ratified. In fact, it was not until 1910 that abortion was made illegal at every stage of pregnancy in every state in the country.
The Supreme Court has recognised that the right to privacy is broad enough to encompass a woman's decision to terminate her pregnancy. This was established in the landmark case of Roe v. Wade, where the Court ruled that a Texas statute forbidding abortion except when necessary to save the life of the mother was unconstitutional. The Court found that the issue of abortion falls under the right to privacy and that the state cannot regulate abortion prior to fetal viability.
The Constitution: Ratification vs. Signing
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The right to abortion in all 50 states
Abortion was not specifically mentioned in the US Constitution when it was ratified. However, the right to abortion has been a contentious issue in the United States for many years.
In the first two years after abortion was legalised in New York, two-thirds of abortions performed in the state were on patients who had travelled from other states, most of which still outlawed abortion. At the time, other states that had legalised abortion required patients to be state residents.
In Roe v. Wade, the Court ruled that a Texas statute forbidding abortion except when necessary to save the life of the mother was unconstitutional. The Court concluded that the issue of abortion and abortion rights falls under the right to privacy in the United States. The Court did not recognise a right to abortion in all cases, saying: "State regulation protective of fetal life after viability thus has both logical and biological justifications."
The U.S. Supreme Court ruled that the due process clause of the 14th Amendment to the Constitution protects the right to abortion. The Supreme Court recognised for the first time that the constitutional right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade protected the right to abortion in all 50 states, making abortion services safer and more accessible throughout the country.
However, abortion remains a divisive issue in the United States, with some states continuing to restrict access to abortion services. For example, in Arizona, the state Supreme Court ruled in Planned Parenthood Arizona v. Mayes that instead of a 15-week ban on abortion passed by the state in 2022, the state should follow a 1902 law, based on a pre-ratification 1864 law, that disallowed nearly any abortion except in the case of a medical emergency. The state government repealed the 1902 law in May 2024 to allow the 2022 law to take precedence.
Connecticut Compromise: Constitution Ratification Enabler
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The 14th Amendment
In the United States, abortion was not illegal at every stage of pregnancy when the Constitution was ratified. However, by 1910, abortion was illegal in every state, with some exceptions to save the patient's life.
The Supreme Court has reaffirmed the constitutional protection of abortion access in multiple key abortion rights cases, including Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman's Health v. Hellerstedt. However, the makeup of the Supreme Court has changed in recent years, with the appointment of three new justices known for their anti-abortion stance. Despite this, voters in Ohio defeated a 2023 proposal to make changes to the state's constitution more difficult, adding the right to an abortion.
The Evolution of Constitutional Ratification
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Pre-ratification laws
The US Constitution was ratified in 1788. Abortion was not illegal in the US at this time. In fact, it was not until 1910 that abortion was made illegal at every stage of pregnancy in every state.
Before 1910, abortion was largely unregulated in the US. In the 1800s, abortion was only illegal in a handful of states, and even then, the laws were not always enforced. For example, in 1864, Arizona passed a law that disallowed nearly any abortion except in the case of a medical emergency. However, this law was rarely enforced, and abortion was still easily accessible in the state.
In the late 1800s and early 1900s, there was a growing movement to restrict abortion access. This was driven in part by concerns about the increasing immigration to the US and the desire of white men in power to maintain their hold on the country. By criminalising abortion, they hoped to encourage upper-class white women to have more children.
The movement to restrict abortion access gained momentum in the early 1900s, and by 1910, abortion was illegal in every state. However, this did not end abortion in the US. Instead, it drove the practice underground, resulting in a high death toll.
The Constitution's Ratification: A Historical Perspective
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Frequently asked questions
Abortion was not illegal when the constitution was ratified. In fact, in Roe v. Wade, the Court ruled that a Texas statute forbidding abortion except when necessary to save the life of the mother was unconstitutional.
The Roe v. Wade ruling protected the right to abortion in all 50 states, making abortion services safer and more accessible throughout the country.
The Roe v. Wade ruling was based on the right to privacy in the United States, or the right of a person not to be encroached by the state. The Court recognised that the constitutional right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy".
