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 widely practiced before 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 women from Northern European backgrounds 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.
Laws prohibiting abortion subjected women to desperation, fear, and shame, and took a heavy toll on women’s lives and health. Poor women and women of color suffered disproportionately, as the ability of a woman to obtain an abortion, let alone one that was safe, often depended upon her economic situation, her race, and where she lived. Women with money could sometimes leave the country or find a physician who would perform the procedure for a high fee. Poor women, for the most part, were either at the mercy of incompetent practitioners with questionable motives or unable to find anyone who would perform the procedure. Many attempted dangerous self-abortions, such as inserting knitting needles or coat hangers into the vagina and uterus, douching with solutions such as lye, or swallowing strong drugs or chemicals.
Because many deaths were not officially attributed to unsafe, illegal abortion, it’s impossible to know the exact number of lives lost. However, thousands of women a year were treated for health complications due to botched, unsanitary, or self-induced abortions, and many died. Others were left infertile or with chronic illness and pain.
MAKING ILLEGAL ABORTION SAFER
Wherever abortion is illegal, 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 that 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.
In the late 1960s, the Clergy Consultation Service on Abortion — a network of concerned pastors and rabbis — set up referral services to help women find safer illegal abortions. Early second wave feminist groups formed their own independent referral groups. 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 1969. 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. Reproductive rights were a big priority. Women — and some men — 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, while Washington DC also allowed abortions.
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 or the few other places, 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 and 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. However, during this time period the Court handed down two major rulings that limited young and poor women’s access to abortion. In Bellotti v. Baird (1979), the Supreme Court ruled that states could insist that a minor obtain parental consent or persuade a judge that she was mature enough to make her own decision. In Harris v. McRae (1980), the Supreme Court limited access to abortion for women who depended on Medicaid for health insurance.
When Roe v. Wade legalized abortion, Medicaid — a program funded jointly by the federal government and individual states — covered abortion care as part of comprehensive health care services provided to low-income women. In 1976, Congress passed the Hyde Amendment, which banned the use of federal funding for abortion care, except in limited cases, and most states followed, instituting bans in their state Medicaid programs. Because so many women depend upon Medicaid for their health care, the Hyde Amendment effectively made it much more difficult for low-income women — disproportionately women of color — to get abortions. In 1980, Harris v. McRae upheld the Hyde Amendment in a narrowly divided ruling, saying that women’s constitutional rights were not violated by the ban on federal funding for abortions.
The next major Supreme Court ruling regarding abortion access came in 1992, when the Court, in Planned Parenthood v. Casey, 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. (In a small win for abortion rights supporters, the Court did conclude that spousal consent was an undue burden.)
In the aftermath of Casey, state and local legislatures began to pass more and more laws to restrict abortion, and the Supreme Court has more often upheld them. In the 2007 case Gonzales v. Carhart, the Supreme Court upheld the so-called Partial-Birth Abortion (PBA) Ban Act. This law was passed by Congress and signed by President George W. Bush in 2003. Although there is no medical procedure known as “partial birth abortion,” the law has been interpreted as prohibiting doctors from performing an intact dilation and extraction abortion, a fairly rare procedure that many doctors feel is the safest in certain situations. The PBA is but one of numerous instances since Roe of legislators informing doctors of how they should practice medicine.
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.
An Ever-growing Number of Restrictions
According to the Guttmacher Institute, since the 1973 Roe v. Wade decision, states have enacted 1,074 abortion restrictions. More than one quarter of these restrictions were passed between 2010-2015. In 2015 alone, conservative lawmakers considered nearly 400 bills to limit a woman’s access to legal abortion and passed 57 new restrictions. These laws most often included bans on late term abortion, restrictions on medication abortion, enforcement of waiting periods, “informed consent” requirements mandating that medical personnel provide inaccurate information, and targeted regulation of abortion providers (TRAP) regulations.
TRAP regulations single out abortion providers and facilities by mandating burdensome and medically unnecessary requirements that are more stringent than requirements for other medical procedures of similar risk. For example, TRAP laws sometimes mandate the width of corridors in abortion facilities or that physicians obtain admitting privileges at a nearby hospital (when no nearby hospital is willing to grant them). According to anti-abortion rights activists, the requirements make abortion safer, but there is no evidence that this is true. Abortion is one of the safest medical procedures in the country, far safer than pregnancy and childbirth, and complications are rare. The true intent of TRAP laws is not to improve the safety of abortion but to place onerous restrictions on clinics and abortion providers so that they must stop providing services. According to the Guttmacher Institute, as of 2017, 24 states have TRAP laws or policies in place.
Anti-reproductive rights activists have also seized on the concept of “personhood” to attempt to pass laws that define zygotes, embryos, and fetuses as “persons” separate from the woman, and with the full legal rights as a person. The goal of personhood laws is to criminalize abortion as well as certain forms of birth control that work by preventing the embryo from implanting in the uterus. Personhood activists in some states have proposed measures to prevent doctors from treating complicated and potentially dangerous pregnancies.
In addition to restrictive state laws, the Hyde Amendment and subsequent laws banning funding continue to limit access to safe and legal abortion for low-income women and women of color. Currently Medicaid covers abortions only in cases of rape, incest, or when the pregnant woman’s life is endangered by an illness, injury, or physical disorder.
Medicaid is funded jointly by the federal government and individual states. While the Hyde Amendment restricts state Medicaid programs from using federal funds to cover abortion outside the above circumstances, states can use their own funds to cover abortion. In 2016 seventeen states fund abortion services on the same terms as other pregnancy related health services, which means these states use their own funds to cover abortions in circumstances in addition to what the Hyde Amendment allows. However, only four of those states (HI, MD, NY, WA) do so voluntarily. Thirteen have been court-ordered to “ensure non-discriminatory public funding for abortion,” according to the ACLU.
Thirty-two states follow the federal standard and only provide abortions in the circumstances outlined in the Hyde Amendment. Poor women continue to be most impacted by what amounts to a ban on safe and legal abortion, depending upon the state in which they reside.
The Hyde amendment and its progeny have expanded in scope and currently also limit federal funding of abortion services for federal employees, women in the military and Peace Corps, American Indian and Alaskan native women who use the Indian Health Service, and women in federal prisons.
There are efforts to repeal Hyde and restore public funding for abortions. In a direct challenge to the Hyde Amendment, Congresswomen Barbara Lee (D-CA), Jan Schakowsky (D-IL), and Diane DeGette (D-CO), introduced the Each Woman Act in 2015 to ensure coverage of abortion for any woman, regardless of how much she earns or the type of insurance she has. The All* Above All campaign unites organizations and individuals to lift the bans on public insurance coverage for abortions.
Prohibitions or restrictions on abortion coverage are not limited to public funding. In 2010, the Affordable Care Act (ACA) was signed into law, extending the Hyde Amendment restrictions on abortion coverage to states’ newly created health insurance exchanges. The ACA also allows states to prohibit abortion coverage entirely in health insurance plans offered through an exchange. Since the law was implemented, twenty-five states have barred health plans participating in the exchange from covering abortion. The ACA permits providers and facilities to refuse to provide, pay, or refer for abortion services under federal refusal provisions.
California is the only state which requires insurance companies to include abortion coverage in their individual and employer plans. As of 2016, six in ten women in the United States do not have the option of selecting a plan with abortion coverage through their exchange. 1.2 million women do not have access to affordable coverage for abortion care, either through Medicaid or subsidies through their state’s health exchange.
Advocates for women’s health and rights continue to fight the Affordable Care Act’s restrictions on abortion coverage. These restrictions force some women to continue pregnancies they do not want and may put their health or lives at risk. As more states attempt to limit or ban private insurance coverage for abortion services, organizations including the Center for Reproductive Rights, and the Guttmacher Institute are pushing to ensure coverage for all pregnancy-related care, including abortion, under the ACA.
Access to safe and legal abortion is vital to women’s health and well-being. The constant onslaught of anti-abortion rights measures introduced throughout the country since the 1973 Roe v. Wade decision forces reproductive justice activists to challenge each one and fight the same battles repeatedly. International bodies, including the U.N., have recognized abortion and reproductive rights as basic human rights. Committed activists will continue to fight for a world where all women have access to safe and legal abortion care.