Abortion occurs when an embryo or fetus is expelled from a woman's body before birth. Abortions can be spontaneous or induced. Discussions about abortions, in the legal context, usually involve induced abortions. These are also called “intentional" abortions.
From contraception to reproductive healthcare, and abortion rights to birth control, the United States government is always involved with regulating family planning. This is as true now as it was in the nation's early days.
In 1973, the U.S. Supreme Court (SCOTUS) recognized a constitutional right to obtain an abortion. However, in June 2022, SCOTUS rejected that understanding of the U.S. Constitution. While still legal under federal law to obtain an abortion, individual states now have the final say on the availability and restrictions involved.
Abortion in the United States has always been a divisive issue. Under consideration is a woman's right to choose to get an abortion. In this article, you'll find an overview covering the history of abortion rights in the United States.
Early History of Abortion in the United States
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.
Laws regarding abortions did not exist in the U.S. until the 1800s. At that time, women weren't allowed to vote, become doctors, or join the American Medical Association (AMA). The AMA, seeking to eliminate midwives, sided with religious leaders in actively advocating the passage of laws outlawing abortion. In 1821, Connecticut passed the first anti-abortion law in the United States.
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 latter half of the Twentieth Century.
Changes to Abortion Laws in 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 were forced 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, as 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, filing lawsuits when lobbying efforts failed. States responded by reforming their laws about abortion.
In 1970, New York became the first state to legalize abortion. Women's rights groups continued to fight for unfettered access to abortion services. 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.
In addition to championing a woman's reproductive rights, abortion rights advocates also argue that prohibiting abortions leads to unsafe abortions, as evidenced by the past. When abortions are legal, people can get them without evading the law. Where abortions are legal and accessible, people tend to obtain safe abortions at clinics and thru doctors.
Roe v. Wade
In 1973, the U.S. Supreme Court 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 an abortion is necessary to save the woman's life or health.
After Roe v. Wade
Abortion continued to be a hot-button issue after Roe v. Wade, and made other appearances in the U.S. Supreme Court. It also led to both state and federal legislation on the topic.
The Hyde Amendment
In 1977, the Hyde Amendment was passed by Congress. It was introduced by Henry J. Hyde, a Republican Congressman from Illinois. Four years after Roe, the first iteration of this Amendment barred the use of federal funds for abortion. This law remains in effect today. The law prevents people from using Medicaid to obtain abortions. It is one of the more restrictive abortion laws insofar as it makes it far more difficult for low-income persons to obtain an abortion.
In 1980, the U.S. Supreme Court upheld the constitutionality of the Hyde Amendment in a vote of 5-4.
State Laws on Abortion
While states cannot criminalize abortion outright, several states have imposed various laws with the legislative intent to make getting an abortion more difficult, or even virtually impossible.
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 before getting an abortion. Other states have laws that require parental notification before a minor can get an abortion or waiting periods between a patient's first visit and the actual procedure.
States like Ohio and Kentucky passed laws banning abortion after a fetal heartbeat is detected. However, professionals in obstetrics have argued that the term “fetal heartbeat" is misleading because the machine actually creates the sound you hear during an ultrasound.
State laws on abortion have continued to expand since the overturn of Roe v. Wade in 2022.
Supreme Court Decisions After Roe
In Planned Parenthood v. Casey (1992), the court upheld Roe v. Wade and struck down a Pennsylvania law that required a person seeking abortion to:
- Give “informed" consent
- Wait 24 hours
- Notify their husband, if married
- Obtain parental consent if under 18
The court found that these restrictions were too burdensome and violated the right to privacy found in Roe.
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, sponsored legislation to overturn Roe and continue to hold demonstrations outside abortion clinics in an attempt to dissuade women. Over the years, several abortion clinics have been bombed, causing many injuries and deaths.
In the 2016 case Whole Woman's Health v. Hellerstedt, the Supreme Court struck down a Texas abortion law that required two things:
- Admitting Privileges: Abortion clinic doctors must have admitting privileges at a hospital within 30 miles of the clinic; and
- 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 it argued that it was an undue burden on women seeking abortions without sufficient medical reasons. The Court reasoned that despite the arguments offered, the laws were unconstitutional and unduly burdened women who were seeking abortions.
In 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health. Several states, including Mississippi and North Dakota, had abortion ban 'trigger laws' in place to take away reproductive rights immediately if Roe was overturned. These were immediately challenged, with many suspended as redress was sought in court. In most cases, the outcomes are still pending.
- The Guttmacher Institute, a global reproductive rights organization, has released a useful breakdown of abortion policy in the United States. This organization, which has also released information about the relationship between mental health, reproductive health, and abortions, often frames access to abortion as fundamental to human rights.
- The World Health Organization (WHO) has also released a useful breakdown of abortion history and policy.
- State legislatures have put different abortion laws into effect. Information on current situations can be found at FindLaw's family law center.
- Planned Parenthood has released a useful resource that details abortion access and what types remain legal. It includes information about the legality of abortions in cases of rape, for example. It also covers abortion restrictions. Planned Parenthood staffs reproductive health care providers and you can receive health care, abortion services, and other health services thru this organization, in addition to contraception. Abortion may not be illegal, but access to legal abortion has become increasingly difficult since Dobbs and Planned Parenthood is an invaluable resource.
- AbortionFinder.org can help you find where you can get an abortion nearest you. Remember that it is not illegal to cross state lines to obtain an abortion, although some states are attempting to make it so.
Want to Learn More About Abortion History and Laws in the U.S.? Talk to an Attorney
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.