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Roe v. Wade and the History Of Abortion In America
Today, policies regarding legal abortion in the U.S. are being debated everywhere from the halls of Congress to the street corners of our smallest towns. Many myths and misconceptions confuse the issue. A better understanding of the history of abortion in America can help provide a context for making sound policy for the future.
Although the history of abortion in the United States is far older than the 17 Supreme Court case Roe v. Wade, that decision marked an important turning point in public health policy. It made it possible for women to get safe, legal abortions from well-trained medical practitioners and therefore led to dramatic decreases in pregnancy-related injury and death.
The Roe case arose out of a Texas law that prohibited legal abortion except to save a womans life. At that time, most other states had laws similar to the one in Texas. The effect of those laws was that large numbers of women resorted to illegal abortions that were dangerous because of poorly trained practitioners or unsanitary conditions. Jane Roe, a 1 year-old pregnant woman, represented all women who wanted abortions but could not get them legally and safely because of these laws. Henry Wade was the Texas Attorney General who defended the law that made abortions illegal.
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After hearing the case, the Supreme Court ruled that Americans right to privacy included the right of a woman to decide whether to have children, and the right of a woman and her doctor to make that decision without state interference.
The findings in Roe v. Wade
The Court attempted to balance the rights of women who want abortions and the states interest in protecting the health of the woman and the life of the fetus in the following way
In the first third of a pregnancy (about the first 1 weeks), state laws and regulations may not interfere with a womans right to end a pregnancy through abortion. This means that the decision whether or not to have an abortion is left to a woman and her physician.
During the second third of pregnancy (about 14 to 4 weeks), state laws may regulate abortion procedures in order to protect the womans health. This means that women can be assured that clinics which offer abortion services are regulated to ensure that safe medical procedures are followed.
During the last part of pregnancy (after about 4 weeks), and after the fetus is viable (developed enough to survive outside the mothers womb), state laws may prohibit abortion except when it is necessary to preserve the life or health of the woman. Most states (40 states and the District of Columbia) have passed laws to prohibit post-viability abortions under most circumstances. In fact, there are only a few doctors nationwide who offer post-viability abortion care to women who need it to save their life or health.
The aftermath of the Roe v. Wade decision
The reaction to Roe was swift. Supporters of legal abortion rejoiced and generally felt their battle was won. However, others faulted the Court for a decision they viewed as immoral. Those opposed to legal abortion immediately began working at the grassroots and national level to prevent any federal or state funding for abortion and to undermine or limit the effect of the decision. Some turned to measures directly aimed at disrupting the sites where abortions were being performed. Their tactics have included demonstrating in front of abortion clinics, harassing people trying to enter, vandalizing clinic property, and blocking access to the clinics. As time passed, the level of anti-choice violence escalated. Increasingly, clinic bombings, physical attacks, and even murders endanger abortion providers and create a hostile environment for women seeking abortions.
Retreat from Roe v. Wade
Initially, the framework of Roe v. Wade served as the basis by which the constitutionality of state laws related to abortion was determined. In recent years, however, the Supreme Court has begun to allow more restrictions on abortion. For instance, the Supreme Courts ruling in Planned Parenthood v. Casey in 1 established that states can restrict pre-viability abortions, even in the first trimester in ways that are not medically necessary, as long as such restrictions do not place an undue burden on women seeking abortion services. Thus many states now have restrictions in place such as requirements that young pregnant women involve their parents or a judge in their abortion decisions, that mandated waiting periods be observed between the time a woman first visits an abortion provider and when the abortion can be performed, and that scripts with information designed to frighten women and discourage women from having abortions be presented. Only the requirement that a woman involve her spouse in her decision was disallowed.
The Uncertain Future of Roe v. Wade
Right now, womens freedom of choice is hanging by a thread. Today the Supreme Court supports a womans right to choose by a slim 5-4 margin. Over the next few years, the likelihood that two or more anti-choice Justices could be appointed is very high. If just one Justice who currently supports Roe is replaced by one who does not, Roe could be reversed. If this were to happen, women would be forced to return to the days of unsafe and illegal back-alley abortions. We must work to ensure that access to safe abortion care remains a legal right for all women before it is too late.
Common Myths About the History of Abortion in America
MYTH In 17, the Supreme Courts Roe v. Wade decision made abortion legal for the first time in American history.
FACT Abortion has been performed for thousands of years, and in every society that has been studied. It was legal in the United States from the time the earliest settlers arrived on our shores until the mid- to late 1800s, when states began passing laws that made it illegal. Although a few states had liberalized their abortion laws in the late 160s and early 170s, the right to have an abortion was finally made available to all American women when the Supreme Court ruling in 17 struck down the remaining restrictive state laws.
MYTH The founding fathers never intended for abortion to be allowed in the United States.
FACT At the time the Constitution was adopted, abortions before quickening (the stage of pregnancy when the mother can feel fetal movement in the womb) were openly advertised and commonly performed. Abortion was something that the founding fathers would have been aware of, and presumably, they would not have remained silent about it if they had intended for the government to involve itself in this aspect of the private lives of its citizens.
MYTH In the 1800s, abortion was outlawed because it was so dangerous.
FACT During this time in history, all surgical procedures, including abortion, were extremely risky. Hospitals were not common, antiseptics were unknown, and even the most respected doctors had only primitive medical educations. Without the technology that we take for granted today, maternal and infant mortality rates during childbirth were extraordinarily high. The dangers from abortion were similar to the dangers from other surgeries that were not outlawed.
As scientific methods began to dominate medical practice, and technologies were developed to prevent infection, medical care on the whole became much safer and more effective. But by this time, the vast majority of women who needed abortions had no choice but to get them from illegal practitioners without these medical advances at their disposal. The back-alley abortion remained a dangerous, often deadly procedure, while areas of legally sanctioned medicine improved dramatically.
MYTH Abortion was outlawed because it is immoral.
FACT The motivations for anti-abortion laws varied from state to state, and included fears that soon the population would be dominated by the children of newly arriving immigrants, whose birth rates were higher than those of native Anglo-Saxon women. But the strongest force behind the drive to criminalize abortion was the attempt by doctors to establish for themselves exclusive rights to practice medicine. They wanted to prevent untrained practitioners, including midwives, apothecaries, and homeopaths, from competing with them for patients and for patient fees.
The best way to accomplish their goal was to eliminate one of the principle procedures that kept these competitors in business. Rather than openly admitting to such motivations, the newly formed American Medical Association (AMA) argued that abortion was both immoral and dangerous. This campaign was successful, and by 110, all but one state had criminalized abortion except where necessary, in a doctors judgment, to save the womans life. In this way, legal abortion was successfully transformed into a physicians-only practice.
The prohibition of legal abortion from the 1880s until 17 came under the same anti-obscenity or Comstock laws that prohibited the dissemination of birth control information and services. It is noteworthy that obscenity, abortion, and contraception should be so linked at a time when society deemed women incapable of making legally and socially responsible decisions and the law classified any attempts of women to make reproductive choices as unacceptable.
MYTH During the period when abortion was illegal, abortion was effectively outlawed and the safety of pregnant women was ensured.
FACT Criminalization of abortions did not reduce the numbers of women who sought abortions. In the years before Roe v. Wade, the estimates of illegal abortions ranged as high as 1. million per year1, although, of course, no accurate records could be kept of illegal procedures. What is known is that between the 1880s and 17, many thousands of women died or suffered serious medical problems after attempting to self-induce their abortions or going to untrained practitioners who performed abortions with primitive methods or in unsanitary conditions. During this time, hospital emergency room staff treated thousands of women who either died or were suffering terrible effects of abortions provided without adequate skill and care.
It should be noted that during this time some women obtained relatively safer, although still illegal, abortions from private doctors.
This practice remained prevalent for the first half of the twentieth century. Later, the rate of reported abortions began to decline, partly because doctors faced increased scrutiny from their peers and hospital administrators concerned about the legality of their operations.
Today, pro-choice advocates who fight for continued access to safe, legal abortion for all women often are motivated by their understanding of the consequences of criminalized abortion. We know from history that whenever abortion has been illegal, women have still attempted and succeeded in ending unwanted pregnancies. Unfortunately, they have often suffered serious health problems or died in the process. While the 17 Roe v. Wade decision was an important turning point in protecting women from unsafe abortion, an understanding of the pre-Roe v. Wade years is critical for making intelligent public policy decisions regarding reproductive health care in the future.
Timeline of Reproductive Rights Up to Roe v. Wade
181 Connecticut passes the first law in the United States barring abortions after quickening.
1860 Twenty states have laws limiting abortion.
165 Griswold v. Connecticut Supreme Court decision strikes down a state law that prohibited giving married people information, instruction, or medical advice on contraception.
168 Colorado, North Carolina, and California liberalize their abortion laws.
170 Alaska, Hawaii, New York, and Washington make abortion available at the request of a woman and her doctor.
17 Eisenstadt v. Baird Supreme Court decision establishes the right of unmarried people to use contraceptives.
17 Roe v. Wade Supreme Court decision strikes down state laws that made abortion illegal.
Compiled from
Anderson, D.E. Newsroom Guide to Abortion and Family Planning, Second Edition. Washington, DC The Communications Consortium Media Center, 16.
Reproductive Freedom in the Courts Significant U.S. Supreme Court Decisions on Privacy and Reproductive Rights. New York The Center for Reproductive Law and Policy, 15.
A doctor describes her experience at a county hospital before Roe v. Wade
[Hospitals] had to have beds all up and down the hallways. They were always full [because of illegal abortions]. They must have had one hundred and forty beds in those wards...in [a twenty four hour] period, youd get ten to twelve admissions. They walked into the emergency room bleeding. The first thing the doctor down there did was send them for an X-ray to see what was in their belly-to see if there were knitting needles, hooks, catheters up their belly.
A doctor describes a twenty-two year old patient whom he treated for septic shock following an illegal abortion in the 150s
[T]he infection is so overwhelming, the bacteria produce toxins that lead to a collapse of the cardiovascular system...One of the tragedies of this septic shock is that people remain lucid until the end, and she was holding my hand, and saying, Doctor, help me, Im dying. And I knew she was, and I knew there was not a blessed other thing we could do for her...I have been haunted by that girl ever since.
For More Information
For information or referrals to qualified abortion providers, call the National Abortion Federations toll-free hotline 1-800-77-100. Monday-Friday 8am-10pm, Saturday-Sunday am-5pm (EST).
For Further Reading Garrow, D.J. Liberty and Sexuality The Right to Privacy and the Making of Roe v. Wade. New York Macmillan Publishing Company, 14.
Joffe, C. Doctors of Conscience The Struggle to Provide Abortion Before and After Roe v. Wade. Boston, MA Beacon Press, 15.
Reagan, L.J. When Abortion Was a Crime Women, Medicine, and Law in the United States, 1867-17. Berkeley, CA University of California Press, 17.
Sollinger, R. (Ed.). Abortion Wars A Half Century of Struggle, 150-000. Berkeley, CA University of California Press, 17.
Weddington, S. A Question of Choice. New York G.P. Putnams Sons, 1.
National Abortion Federation
1755 Massachusetts Avenue NW, Suite 600
Washington, DC 006
(0) 667-5881
Writer Susan Dudley, PhD
Copyright 16, National Abortion Federation
1 C. Tietze and S.K. Henshaw. Induced Abortion A World Review, 186. New York The Alan Guttmacher Institute, 186.
Joffe, C. Doctors of Conscience The Struggle to Provide Abortion Before and After Roe v. Wade. Boston, MA Beacon Press, 15.
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