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Abortion History in the U.S.

Abortion occurs when an embryo or fetus is expelled from a woman's body before birth; thus resulting in the death of the fetus. While abortions can be spontaneous or induced, discussions about abortions in the legal context usually involve induced, or intentional, abortions.

Abortion -- or more specifically a woman's right to get an abortion -- has always been a divisive issue in the United States, and powerful and wealthy groups regularly attempt to impact the law in their favor. In this article you'll find an overview of abortion history in the U.S.

U.S. Abortion History: The First One Hundred Years

Before the founding of the United States, the common law of England permitted abortions before the fetus "quickened," which was the term used to describe the mother's first feeling of the fetus moving in her uterus. Typically, quickening occurs between the sixteenth and twentieth weeks of pregnancy.

In the first chapter of the United States' history, laws regarding abortions did not exist until the 1800s. At that time, women weren't allowed to vote, become doctors, or join the American Medical Association (AMA). The AMA and religious leaders were actively advocating the passage of laws outlawing abortion. In the nineteenth century, abortions were generally unsafe and the women who managed to survive abortions often became sterile. By the 1880s, all states had laws criminalizing abortions, and these laws stayed intact until the 1960s and 1970s.

U.S. Abortion History: The Twentieth Century

Beginning in the mid-twentieth century, U.S. abortion history took a turn. Women's groups, along with doctors and lawyers, organized a movement to reform abortion laws. Reformers cited inequalities between men and women that were exacerbated by women's inability to adequately control their reproductive lives. The post-World War II population explosion also increased awareness about the environment and the need to limit family size.

In other countries, abortions were legal and generally safe, but in the United States, women continued to undergo illegal abortions and risk permanent injury or death. In the 1960s, the anti-nausea drug thalidomide and an outbreak of German measles, or rubella, caused a rash of birth defects in babies born during that decade. The increase in birth defects brought further attention to the issue since women wishing to avoid the birth of a seriously deformed child couldn't seek legal abortions.

Women's rights organizations, including the National Organization for Women (NOW), lobbied for abortion law reform and filed lawsuits when lobbying efforts failed. States responded, reforming their laws about abortion, but women's rights groups continued to fight for unfettered access to abortion services for women. Anti-abortion groups fought back, arguing that a woman's right to reproductive freedom is no greater than the right of an unborn child to be born.

Roe v. Wade

The battle ultimately went before the U.S. Supreme Court, which in 1973 decided the landmark abortion case of Roe v. Wade. In Roe, the Supreme Court ruled that abortion is legal and provided guidelines for the states, dividing pregnancy into three 12-week trimesters:

  • During a pregnant woman's first trimester a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
  • During the second trimester a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman.
  • During the third trimester, the state's interest in protecting the potential human life outweighs the woman's right to privacy. The state may prohibit abortions unless abortion is necessary to save the life or health of the mother.

After Roe v. Wade

Despite the decision in Roe, abortion continues to be a hot button issue and has made other appearances in the U.S. Supreme Court. For instance, in 2007, the Supreme Court upheld a nationwide ban on partial birth abortion, a form of late term abortion. Groups opposed to abortions, also called "pro-life" organizations, sponsor legislation to overturn Roe and hold demonstrations outside abortion clinics in an attempt to dissuade women from getting an abortion. Over the years, several abortion clinics have been bombed, causing many injuries and deaths.

While states cannot criminalize abortion outright, several states have imposed a variety of laws with the legislative intent to make getting an abortion more difficult. For example, some states impose "physician gag laws," which require doctors to disclose certain information about abortions or require the patient to have an ultrasound prior to getting an abortion. Other states have laws that require parental notification before a minor can get an abortion and waiting periods between a patient's first visit and the actual procedure.

Texas Abortion Law Struck Down by Supreme Court

In the 2016 case Whole Woman's Health v. Hellerstedt, the Supreme Court struck down a Texas law that required two things:

  1. Admitting Privileges: Abortion clinic doctors must have admitting privileges at a hospital within 30 miles of the clinic; and
  2. Minimum Health and Safety Standards: Abortion clinics must meet the minimum health and safety standards that other ambulatory surgical centers are required to meet.

Proponents of the law justified it as an attempt to protect women's health, while those opposed to the law argued that it was an undue burden on women seeking abortions without sufficient medical reasons. The Court reasoned that despite arguments that the restrictions were designed to protect women's health, the laws were unconstitutional and unduly burdened women who were seeking abortions. The ruling will likely affect similar laws in about a dozen other states, including Alabama, Arkansas, Louisiana, and Mississippi.

Want to Learn More About Abortion History and Laws in the U.S.? Talk to an Attorney

As you can see, abortion has been a contentious issue throughout the history of the U.S., and there are ongoing legal challenges to laws relating to abortion. This can make it hard to know exactly what the laws are in your state at any given time. You can learn more about current abortion laws, as well as other reproductive rights, by speaking with a qualified family law attorney in your area.

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