Abortion History in the U.S.

Abortion laws have shifted. In 1973, the U.S. Supreme Court (SCOTUS) recognized a constitutional right to get an abortion. But in June 2022, SCOTUS rejected that understanding of the U.S. Constitution.

It is still legal under federal law to get an abortion. Yet, individual states now have the final say on its availability and restrictions.

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.

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, learn about the history of abortion rights in the United States.  

Early History of Abortion in the United States

Abortion regulation began before the founding of the United States. The common law of England permitted abortions before the fetus "quickened." This term described the mother's first feeling of the fetus moving in her uterus. Typically, quickening occurs between the sixteenth and twentieth weeks of pregnancy.

Laws for abortions did not exist in the U.S. until the 1800s. Women weren't allowed to vote, become doctors, or join the American Medical Association (AMA). The AMA aimed to get rid of midwives at that time. It agreed with religious leaders in campaigning to outlaw abortion.

In 1821, Connecticut passed the first anti-abortion law in the United States. By the 1880s, all states had laws criminalizing abortions, and these laws stayed intact until the latter half of the Twentieth Century.

Health Hazards Sparked Legal Advocacy 

In the nineteenth century, abortions were generally unsafe. The women who managed to survive abortions often became sterile. 

The twentieth century brought global changes to abortion care. In other countries, abortions were legal and generally safe. But in the United States, the lack of rights forced women to undergo illegal abortions and risk permanent injury or death.

Abortion rights advocates argued that abortion bans lead to unsafe procedures, as evident in the past. When abortions are legal, people can get them without evading the law. People tend to get safe abortions at clinics and through doctors where it is accessible.

Unsafe abortions weren't the only cause of health risks. The lack of safe abortion care also affected parents and children.

In the 1960s, babies were increasingly born with birth defects. This spike was partly due to the anti-nausea drug thalidomide and a German measles, or rubella, outbreak. Women wishing to avoid serious congenital disabilities couldn't seek legal abortions. This problem brought more attention to the issue of abortion.

Abortion Laws Changed As Advocacy Rose

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

Women's rights organizations, including the National Organization for Women (NOW), lobbied for abortion law reform. They filed 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.

People historically discussed the issue of access to abortion as one of women's rights. But not only women have the biological capacity to reproduce. Cisgender women, transgender men, and some nonbinary people have this biological capacity. Restrictions on access to abortion can have consequences for everyone's due process and privacy rights. Modern advocacy has expanded to include more of these considerations.

Roe v. Wade Established Federal Abortion Rights

In 1973, the U.S. Supreme Court decided the landmark abortion case of Roe v. Wade. This case was the first in U.S. history that established a constitutional right to an abortion.

An unmarried pregnant Texas woman sought an abortion, but Texas law denied her. She challenged the law in federal court, which determined three important things:

• The constitutional right to privacy prevented states from banning abortion.
• States have an interest in ensuring the safety and well-being of pregnant people and potential human life.
• A fetus is not a person protected by the Constitution.

In Roe, SCOTUS ruled that abortion is legal. It provided guidelines for the states based on three 12-week trimesters of pregnancy:

• 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.

Abortion Court Cases After Roe v. Wade

Abortion continued to be a hot-button issue after Roe v. Wade. It 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

States cannot criminalize abortion outright. Yet, several states have laws that aim to make getting an abortion more difficult — or even impossible.

For example, some states impose "physician gag laws," which add special steps to abortion care, such as:

• Requiring doctors to disclose certain information about abortions
• Requiring the patient to have an ultrasound before getting an abortion
• Requiring parental notification before a minor can get an abortion
• Imposing 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.

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. Opponents 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.

Attacks and Opposition To Abortion Protections

Groups opposed to abortions, also called "pro-life" organizations, sponsored legislation to overturn Roe. They held demonstrations outside abortion clinics in an attempt to dissuade women.

Over the years, several abortion clinics suffered violent attacks. Bombings and arson caused many injuries and deaths. Criminal courts convicted several attackers during the decades with federal abortion rights.

Roe v. Wade Protected Medical Choices for Nearly 50 Years

In Roe v. Wade, the U.S. Supreme Court ruled that the Fifth and Fourteenth Amendments protect the right to choose. To summarize, SCOTUS decided that a person's right to privacy must be protected under those amendments when making the medical choice of pursuing an abortion.

By extension, this right applies to medical choices in a general sense. According to the Court in Roe, a person should be free from governmental interference when they pursue care from a licensed medical professional. But without constitutional protection for a right to privacy and body autonomy, many fear the floodgates could open, and states could restrict more than abortion.

Almost 50 years later, the nation began to grapple with that reality.

The End of Roe v. Wade Leaves Abortion Rights To State Laws

In 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health. The Court claimed that no protections for the right to abortion ever existed in the U.S. Constitution. The majority overturned Roe, thus compromising the rights to privacy that entitle a person to make medical choices like obtaining an abortion.

While SCOTUS' overturning of Roe v. Wade has not caused an outright ban on abortion across the United States, it has allowed the states to decide the issue for themselves. It's important to note that abortions are still legal in many states.

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.

Find Abortion Law Resources

Reproductive healthcare access has not been entirely restricted and eliminated. Outside the option of abortion, contraception is also still an option. Legal abortions are still available. There has been no universal criminalization of abortion or abortion care. While concerns about overly restrictive abortion laws have grown since the overturning of Roe v. Wade, it's important to remember that it is still legal to get an abortion in many states.

The following resources can offer more information and help:

• 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. You can receive health care, abortion services, contraception, and other health services through this organization. Abortion may not be illegal, but access to legal abortion has become increasingly difficult since ​Dobbs. Planned Parenthood can be a valuable 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, though some states are attempting to make it so.

Remember that no abortion bans are in effect across the United States in all jurisdictions. You can still find abortion providers in many places. Abortion services are still widely available. Your health — mental health and physical — are important. Meeting with a lawyer can help you understand your options and how to best protect your rights.

Discuss Abortion Laws With a Skilled 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.