History of Abortion in the U.S.

By OBOS Abortion Contributors | March 28, 2014

Women around the world have used abortion to control their reproduction at every point in history, and in every known society – regardless of its legality.

In the United States, abortion was practiced until about 1880, by which time most states had banned it except to save the life of the woman. Anti-abortion legislation was part of a backlash against the growing movements for suffrage and birth control — an effort to control women and confine them to a traditional childbearing role.

This legislation was also a way for the medical profession to tighten its control over women’s health care, as midwives who performed abortions were a threat to the male medical establishment. Finally, with the declining birthrate among whites in the late 1800s, the U.S. government and the eugenics movement were concerned about “race suicide” and wanted white U.S.-born women to reproduce.

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When abortion was illegal, the ability of a woman to obtain an abortion, let alone one that was safe, depended upon her economic situation, her race, and where she lived. Women with money could often leave the country or find a physician who would perform the procedure for a high fee. Poor women, for the most part, were at the mercy of incompetent practitioners with questionable motives.

Often unable to find a provider, poor women and women of color disproportionately turned to dangerous self-abortions, such as inserting knitting needles or coat hangers into the vagina and uterus, douching with dangerous solutions such as lye, or swallowing strong drugs or chemicals. All women were subject to the desperation, shame and fear created by the criminalization of abortion.

Laws prohibiting abortion took a heavy toll on women’s lives and health. Because many deaths were not officially attributed to unsafe, illegal abortion, it’s impossible to know the exact number. However, thousands of women a year were treated for health complications due to botched, unsanitary or self-induced abortions; many died, or were left infertile or with chronic illness and pain.

Making Illegal Abortion Safer

Wherever abortion is illegal and unsafe, committed people take enormous risks to provide safe abortions clandestinely, to treat women who have complications, and to help women find safe providers.

Before the Supreme Court’s landmark Roe v. Wade decision legalized abortion in 1973, some dedicated and well-trained physicians and other medical practitioners risked imprisonment, fines and loss of their medical licenses to provide abortions. Information about these services often spread by word of mouth.

By the 1960s, the Clergy Consultation Service on Abortion — a network of concerned pastors and rabbis, and feminist groups — had set up referral services to help women find safer illegal abortions.

In Chicago, a group of trained laywomen called the Abortion Counseling Service of the Chicago Women’s Liberation Union went even further, creating an underground feminist abortion service in 1963. The group, whose code name was Jane, provided safe, inexpensive, and supportive illegal abortions. Over a four-year period, the group provided more than 11,000 first- and second-trimester abortions with a safety record comparable to that of today’s legal medical facilities.

Laura Kaplan, a former Jane member and the author of “The Story of Jane: The Legendary Underground Feminist Abortion Service,” describes the women involved:

We were ordinary women who, working together, accomplished something extraordinary. Our actions, which we saw as potentially transforming for other women, changed us, too. By taking responsibility, we became responsible. Most of us grew stronger, more self-assured, confident in our own abilities. In picking up the tools of our own liberation, in our case medical instruments, we broke a powerful taboo. That act was terrifying, but it was also exhilarating. We ourselves felt exactly the same powerfulness that we wanted other women to feel.

Organizing to Change the Law

In the 1960s, inspired by the civil rights and antiwar movements, women organized a women’s liberation movement. They fought, marched and lobbied to make abortion safe and legal. At speak-outs, women talked publicly for the first time about their illegal abortion experiences.

The women’s movement, joined by sympathetic allies within the medical profession, made visible the millions of women who were willing to break the law and risk health and life to obtain an abortion. The movement also connected abortion rights to gender equality.

Between 1967 and 1973, 14 states reformed and four states repealed restrictive abortion laws. Changes included allowing women access to abortion in certain circumstances, such as when the pregnancy was the result of rape or incest.

In 1970, New York became the first state to legalize abortion on demand through the 24th week of pregnancy. Hawaii had earlier legalized abortion through 20 weeks, but only for residents of that state.

Two other states, Alaska and Washington, followed, and women who could afford it began flocking to the few places where abortions were legal. Feminist networks offered support, loans and referrals and fought to keep prices down. But for every woman who managed to get to New York, many others with limited financial resources or mobility still sought illegal abortions.

On Jan. 22, 1973, the U.S. Supreme Court struck down all existing criminal abortion laws in the landmark Roe v. Wade decision. The court found that a woman’s decision to terminate a pregnancy in the first trimester was protected under the “right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty.”

The court allowed states to place restrictions in the second trimester to protect a woman’s health and in the third trimester to protect a viable fetus. However, the Court held that if a pregnant woman’s life or health were endangered, she would not be forced to continue the pregnancy at any stage.

Weakening the Constitutional Protection for Abortion

From 1973 until 1992, the Supreme Court rejected dozens of state efforts to limit access to abortion. With two big exceptions, the Court enforced Roe v. Wade’s ruling that until the point of viability, the state could regulate abortion only to protect the health and well-being of women.

The exceptions were the 1979 ruling in Bellotti v. Baird, which said that states could insist that a minor obtain parental consent or persuade a judge that she was mature or that abortion without parental notification was in her best interest, and the 1980 ruling in Harris v. McRae, which said that payments for medically necessary abortions could be excluded from the otherwise comprehensive Medicaid program.

Abortion rights opponents continued to persuade state and local legislatures to adopt more restrictive laws. In 1992, the Planned Parenthood v. Casey decision upheld a highly restrictive Pennsylvania law that included mandatory waiting periods, parental consent, and biased information. Further, the Court abandoned the legal principles of Roe and allowed laws designed to limit access to abortion at any stage of pregnancy, so long as the law does not place an “undue burden” on a woman’s access to abortion.

Though the decision said that spousal consent was an undue burden, in the aftermath of Casey, hundreds of restrictions have been passed and not seen to be in violation of the new standard.

More recently, in the 2007 case Gonzales v. Carhart, the Supreme Court upheld the so-called Partial-Birth Abortion Ban Act. The law was passed by Congress and signed by President George W. Bush in 2003. Although there is no medical procedure known as “partial birth,” the law has been interpreted as prohibiting doctors from performing an intact dilation and evacuation (D&E) — a procedure where there is no instrumentation before the fetus is removed — unless the fetus is no longer alive.

The ban has resulted in doctors either choosing a procedure that is less safe for the woman needing a later abortion, or ensuring that the fetus is not alive before starting the abortion. The PBA ban opened the door to state restrictions on later abortions.

In her dissent to Gonzales v. Carhart, Supreme Court Justice Ruth Bader Ginsburg decried the ruling, saying:

Today’s decision is alarming … It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.