History of Abortion Rights in the United States
Since the June 2022 ruling deciding to overturn Roe v. Wade, it is crucial to look to the past to understand the present. In colonial days, abortion was a regular part of life for women and largely-stigma-free. Fetuses were only considered potential lives, and the belief of life beginning at conception was not a concept. Common law allowed abortion preceding “quickening.” “Quickening” is defined as the moment when the fetus’s movement can be detected, that usually happens around 22 to 24 weeks of pregnancy. Abortions post-quickening were illegal, but only cosidered a misdemeanor. Prosecutions for this law were scarce since only the pregnant women could confirm fetal movement. Historians assume that law was intended to protect pregannt women, since death was more common with abortions performed at later stages. It is clear to see, in the past and the present, that abortion bans are deeply rooted in white supremacy. Even though abortion was legal in the United States before and during the Civil War, there were different rules for enslaved Black women. They didn't have the freedom to control their bodies, and slave owners prohibited them from having abortions. While slavery was abolished in 1865, the societal control over Black women’s bodies remained.
In the mid-1800s, a union of male doctors, with the support of the Catholic Church, began to organize as a way to separate themselves from the female healers and midwives who performed abortions. Before this, the medical field was largely unregulated, and healers/midwives competed with doctors for business, especially when it came to women’s reproductive care. The American Medical Association was established in 1847 and argued that doctors had superior knowledge on the female body and for that reason, should be the authority on abortion. Historians observe that this supposed “superior knowledge” didn't actually exist and was just used as a way to discredit the healers and midwives, in order to take control of the market. They also did this by pushing states to pass anti-abortion laws. Their plan worked and by 1910 every state had made abortion illegal, with exceptions only for cases in which the pregnant woman’s life was in danger. However, wealthy white women could afford to travel and access abortion while other marginalized people could not.
Over the next couple of decades, abortion remained illegal at every stage of pregnancy, but it it did not stop abortions from happening. According to statistics, the number of illegal abortions in the 1950s and 1960s are between 200,000 and 1.2 million per year. Many doctors illegally provided abortions, but without any regulations, it quickly became dangerous and deadly. Illegal abortions resulted in the death of 2,700 women in 1930, equating to 1 out of every 5 recorded maternal deaths that year. By 1940, the death toll declined to just under 1,700 and by 1950 just over 300 (most likely due to the introduction of antibiotics). In 1965, deaths due to illegal abortions fell to under 200 but still accounted for 17 percent of all maternal deaths that year. These only account for the deaths that were reported and the number is believed to be much higher.
In the 1960s, America began to demand abortion law reform. Illegal abortion became a public health crisis and could no longer be ignored. In 1967, Colorado became the first state to change its law, followed by California in 1967 and New York in 1970. By this time, 11 states liberalized their abortion laws. On January 22, 1973, the supreme court recognized that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy with its landmark decision in the Roe v Wade case. The Roe decision made state abortion bans unconsitutional and abortion care legal, more accessible, and safer throughout the country. While Roe’s legal implications were enormous, even Roe could not make access to abortion a reality for everyone. Low-income people, people of color, and others continued to face obstacles to abortion care. For example, the Hyde Amendment bars federal Medicaid dollars from being used to cover abortions.
After Roe v. Wade, the anti-abortion movement, as we know it today, with deeply religious ties, emerged. In the 1970s it was not as widespread as it is today and was a very small movement, largely made up of white Catholics. Not only did they argue that the fetus is a life, but that it is also a rights campaign, comparing legal abortion to genocide and to the Holocaust. In the late 1970s and early 1980s, evangelical Christians joined the anti-abortion movement, which increased its size and popularity. In 1976, abortion became a partisan issue. The republican party added an anti-abortion stance to their platform.
In 1992, with a 5-4 decision, the Supreme Court made it easier for states to pass more restrictive abortion laws with the ruling on Planned Parenthood of Southeastern Pennsylvania v. Casey. This ruling upheld most of the Pennsylvania provisions and for the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undone burden,” which is defined as a “substatial obstacle in the path of a woman seeking an abortion before the fetus attains visibility.” Under this standard it upheld informed consent and a 24 hour waiting period prior to an abortion procedure. For example, a minor seeking an abortion was required the consent of one parent. The only provision to fail the burden test and that was no longer required, was that a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.
By the mid-1900s to the early 2000s, the anti-abortion movement began to gain a real political foothold. In the 21st century, more politicians with an anti-abortion stance have been elected. Specifically, Former President Donald Trump garnered so much support from the anti-abortion movement by campaigning to appoint Supreme Court justices who would overturn Roe v. Wade. He fulfilled that promise, resulting in the conservative supermajority on the Supreme Court today.
On June 24, 2022, the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization. The Supreme Court’s ruling upheld Mississippi’s ban on abortion at 15 weeks of pregnancy, overturned Roe v. Wade, and ended the federal constitutional right to abortion in the United States. The court’s decision mostly harms Latino, Black, Indigenous and other people of color, whose communities, by systemic racism, have been blocked access to opportunity and health care. This is not a case where the people have spoken, 80 percent of Americans think Roe v. Wade should be upheld. By overturning Roe v. Wade, the Supreme Court erased almost 50 years of precedent and will have a ripple effect of spreading abortion bans across the United States. About half of the states in the country move to wipe out abortion acess. Some of these states have policies that ban abortion immeditely, while others are led by lawmakers who are hostile to abortion and have a history of passing abortion restrictions. Just like we saw in the mid 1900s, outlawing abortion will not prevent abortions, but will only make them unsafe.
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