Regulation

5 things to know about the United States’ history of abortion

Earlier this week, a leaked Supreme Court draft opinion indicating that the high court would eliminate federal-level abortion protections rattled the country as a final ruling on the matter is expected within the next two months.

It is not clear if the opinion, written by Justice Samuel Alito purportedly in February and reported by Politico, will remain the final ruling in a Mississippi case that would effectively eliminate abortion access after 15 weeks of pregnancy.

But the issue has already started galvanizing Democrats and those who support abortion rights amid growing concerns that other states could soon enact stricter legislation of their own. 

Many Republicans have said they would support the draft ruling should it be final, which would overturn the 1973 landmark decision Roe v. Wade and give states the authority to decide on abortion access.

To better make sense of the historical events that led to this moment, here’s five things to know about the United States’ history of abortion: 

Abortion was not illegal until the 1800s

Abortion services were actually permitted during the 1800s, according to scholars and experts, so long as it did not happen by the time “quickening” started, known as “the first motion of a fetus in the uterus felt by the mother usually somewhat before the middle of the period of gestation,” according to Merriam Webster.

“The law with respect to abortion in mid-19th century America followed existing common law of England in all but a few states. Thus, no indictment would occur for aborting a fetus of a consenting female prior to ‘quickening,’” legal attorneys from the American Law Division wrote in a report to Congress in 2001.

“But, by the time of the Civil War, an influential anti-abortion movement began to affect legislation by inducing states to add to or revise their statutes in order to prohibit abortion at all,” they added.

Leslie Reagan, author of “When Abortion Was a Crime,” wrote in her book that by 1880, except in instances to save a woman’s life, abortions were considered a crime, according to CNN.

Every state by 1910 had anti-abortion laws on the books, according to the American Law Division attorneys, while abortions were already considered to be illegal judicially in Kentucky.

It was classified as a felony in 49 states and Washington, D.C. by 1967. 

The American Medical Association (AMA) pushed for abortion to be criminalized

The formation of the American Medical Association in the mid-1800s would play an important role in the push for the criminalization of the medical treatment. 

In an 1859 report on abortion, the group equated abortion with the act of murder.

“We are the physical guardians of women; we, alone, thus far, of their offspring in utero. The case is here of life or death – the life or death of thousands – and it depends, almost wholly, upon ourselves,” the group wrote.

The organization also sought to keep women from pursuing careers in obstetrics and gynecology and pressed for abortion restrictions, according to CNN.

Reagan wrote that the AMA was “antifeminist at its core,” the network noted.

Colorado: First state where abortion laws were liberalized

Six years ahead of the landmark 1973 Supreme Court decision in Roe v. Wade, which provided federal-level abortion protections, Colorado was the first state to liberalize its abortion laws.

The law, signed in 1967, allowed for abortions so long as a three-doctor hospital board approved the procedure. The law paved the way for other states looking to amend their own laws on the medical service, Denverite reported.

“There was none of this ‘It’s my body,’” former Colorado Gov. Dick Lamm (D), who introduced the legislation as a freshman state House representative, told Denverite. “I don’t know if I would have even agreed with that at the time, and if I did, I certainly wouldn’t have said it.”

American Law Division legal attorneys wrote that the Colorado “was based on the Model Penal Code,” which has provisions “allowing abortion in instances other than where only the mother’s life was in danger.”

Roe v. Wade

Just three years ahead of the landmark decision, “Jane Roe,” an anonymous pregnant woman, filed a lawsuit against Texas over legislation that only allowed for abortions if a mother’s life was at risk, according to The Washington Post.

The Supreme Court found that the legislation was unconstitutional, thereby establishing federal-level abortion rights for those seeking the services. 

The Supreme Court wrote at the time that it “conclude(s) that the right of personal privacy includes the abortion decision,” which was seen as an important judicial win for the abortion-rights community.

The ruling at the time also said “it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.”

Planned Parenthood of Southeastern Pennsylvania v. Casey

In this 1992 Supreme Court case, justices weighed in on Pennsylvania’s abortion control law, which required that a wife notify her husband should she choose to have an abortion. The law also required a 24-hour waiting period and informed consent, including for minors who needed the approval of one parent, according to Oyez.

A new “undue burden” standard was developed through the high court’s ruling toward state abortion laws, meaning justices must determine whether a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” has been met by the state legislation, Oyez notes.

However, the ruling upheld federal level abortion protections. 

Updated 11:20 a.m.

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