By Eric Harvey, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed August 14, 2023
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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.
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.
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.
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:
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.
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.
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.
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:
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:
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.
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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