A brief history of US abortion law, before and after Roe v Wade
The US Supreme Court could be about to overturn the nationwide legal right to abortion, according to a leaked draft of a court document. A woman’s right to have an abortion was protected nationally in America almost half a century ago, in 1973, with a landmark decision Roe v Wade. Here, Professor Mary Ziegler charts the history of abortion law in the USA before and after Roe v Wade, and examines how abortion became a major political issue…
In recent years, several US states have passed laws that restrict a woman’s access to abortion. Nine states have passed laws banning abortion early in pregnancy, often without exceptions for rape or incest. In 2019, Alabama criminalised abortion from the moment of fertilisation, and Georgia’s “heartbeat” statute, outlawing abortion at six weeks, declared the “personhood” of the unborn child.
On the other side of the debate, supporters of abortion rights have also been active, with laws passed in New York, Vermont, Illinois and Maine that authorise the procedure later in pregnancy and allow medical professionals other than doctors (including physician assistants, nurse practitioners, and certified nurse midwives) to perform abortions.
All of these efforts focus on the fate of a landmark United States Supreme Court decision in 1973, Roe v Wade, which recognised a federal constitutional right to choose abortion.
On 2 May 2022, in a leaked draft opinion published by Politico, Justice Samuel Alito writes that the 1973 Roe v Wade decision legalising abortion is “egregiously wrong”.
If issued as a majority ruling, Justice Alito’s opinion would overturn the constitutional right to abortion in the US, paving the way for individual states to ban the procedure altogether, or place more restrictions on it, BBC News reports.
Here, writing for History Extra, expert Mary Ziegler charts the history of abortion law in America…
What events led to the Roe decision in 1973?
By the mid-1960s, a movement had begun to loosen American abortion laws. During the 1930s and 1940s, improvements in obstetric and gynaecological care had made it hard for physicians to justify abortion as a means of saving a woman’s life. Convinced of the wrongful nature of abortion laws that made the procedure illegal even when women would suffer adverse health consequences by continuing with the pregnancy, some doctors demanded reform. In 1959, the American Law Institute (ALI), a group of legal experts, released a draft proposal that would make abortion legal in cases of foetal abnormality, rape or incest, or when there was a threat to the woman’s health.
States from California to Georgia began passing the ALI model law in the mid-1960s. But some doctors, worried that they would fall outside of the narrow ALI exceptions, still refused requests for abortion. Soon, new forces joined the movement for reform: feminists demanded the outright repeal of all abortion restrictions, as did members of the population-control movement (a cause dedicated to curbing demographic growth).
Meanwhile, opponents of abortion – many of whom were tied to the Catholic Church – mounted a state-by-state campaign. To attract a more religiously diverse group of supporters, these activists began defining themselves as defenders of a right to life based on the US Constitution and the Declaration of Independence. Those who supported repeal responded that the Constitution protected a right to choose abortion.
Constitutional developments encouraged those demanding repeal. In Griswold v Connecticut (1965), the Supreme Court struck down a Connecticut law prohibiting married couples from using birth control. The Court based its decision on a right to privacy that the majority believed was implied in the text of the Constitution: Griswold relied on the idea that the text of the American Constitution had “penumbras” – rights implied by the protections spelled out in the document. In 1972, in Eisenstadt v Baird, the Court invalidated a Massachusetts law allowing married, but not unmarried, people to purchase contraceptives.
The stage was set for the Roe decision.
What did Roe v Wade actually say?
Issued in January 1973, the Roe v Wade judgment affirmed that access to safe and legal abortion was a constitutional right. It became a landmark case that effectively legalised abortion across the United States.
Roe began when Norma McCorvey, a 21-year-old woman from Texas, learned that she was pregnant with her third child. McCorvey wanted to end the pregnancy, and her friends advised her to claim she was raped (so that she could have an abortion). But Texas law did not allow for abortions in cases of rape or incest, and the illegal clinic that McCorvey hoped to use had closed.
She eventually found her way to Sarah Weddington, a 25-year-old attorney who herself had had an abortion several years earlier. Weddington and another attorney, Linda Coffee, sought a declaration that Texas’s law – which allowed for abortion only if a woman’s life was at risk – was unconstitutional.
A three-judge panel of a Texas district court held that the law was unconstitutional, and the Supreme Court agreed to hear the case. The Court also took a second case, Doe v Bolton, which involved a version of the ALI model law.
Issued in January 1973, the Roe v Wade judgment affirmed that access to safe and legal abortion was a constitutional right. It became a landmark case that effectively legalised abortion across the United States. The judgment held that the right to privacy described in Griswold also protected a woman’s right to choose abortion.
However, the Court spoke much more about the rights and beliefs of physicians than many might have expected. Indeed, the Court held that in the first trimester, states had to leave abortion to the “medical judgment of the pregnant woman's attending physician”. The Court developed the trimester framework: regulations were impermissible in the first trimester; while in the second trimester the government could regulate only to advance an interest in women’s health, and only after the viability of the foetus had been established could the government advance an interest in foetal life. Roe rejected the claim that the foetus was a rights-holding person, reasoning that the term “person” applied in the Constitution only after birth.
Roe invalidated the majority of abortion laws on the books at the time of the decision, and the ruling intensified an abortion battle that had already reached a fever pitch.
What happens if Roe v Wade is overturned?If the US Supreme Court overturns the 1973 ruling, individual states would be allowed to ban abortion, if they wish.
There are 22 US states that would almost certainly totally outlaw abortion or severely restrict it, and at least another four states that would move very quickly to try to ban abortion, says BBC News’ North America editor, Sarah Smith. That would make abortion illegal in more than half of the states in America.
The overturning of Roe v Wade would be “one of the most monumental US Supreme Court decisions of all time,” Professor Mary Ziegler told the Today programme on 3 May 2022.
“It’s a tremendous and fairly unprecedented thing for the Supreme Court to take away a constitutional right that people have been exercising for half a century,” she said.
The overturning of Roe v Wade would result in “a steep decline in abortion access in parts of the United States, primarily in the south and mid-west,” Prof Ziegler added. “That will likely have disproportionate effects both in terms of the health effects of that ban and the criminal effects of laws in these conservative states. Those effects will probably be felt most sharply by people with fewer resources and particularly by people of colour in the United States.”
What was the abortion debate like before Roe v Wade?
For much of American legal history, states did not regulate abortion before “foetal quickening” – the point at which movement could be detected in the womb. By the mid-19th century, abortion had become a booming business and many women ending their pregnancies were married, white, and middle-class.
In 1857, the recently formed American Medical Association (the AMA) began an ultimately successful campaign to criminalise abortion in all cases except when a woman’s life was at risk. The AMA had scientific, moral and practical reasons for seeking to change abortion laws. Scientifically, many physicians argued that quickening was largely irrelevant because after fertilisation a new human life would take shape if no one interrupted its development.
Morally, the AMA contended that any taking of life was wrong – and that abortion undermined women’s traditional roles and threatened to undermine the “genetic stock” of the United States if wealthier women had fewer children than poor ones. Practically, physicians worried that midwives and other competitors – most of whom were more willing to offer abortion services than physicians were – would steal patients. By fighting to criminalise abortion, doctors could claim a moral edge over the competition.
This campaign was a stunning success; by 1880, every state in America had introduced criminal abortion laws (making narrow exceptions when the procedure was needed to save a woman’s life).
But the reality of abortion in America differed from the letter of the law. Some doctors still performed abortions, despite the fact it was illegal to do so, and prosecutors enforced the laws unevenly and unpredictably. Prosecutors generally targeted abortion providers, particularly when a woman died as a result of a procedure. However, prosecutors had the power to subpoena women and force them to serve as witnesses in criminal cases brought against doctors. These women had to answer deeply personal questions in open court and faced intense questioning from opposing attorneys, and often their stories found their way into local newspapers.
While women rarely faced prison time for having had an abortion, the prospect of public humiliation likely served as a deterrent to women who might otherwise have considered abortion.
Listen: Mary Fissell talks about women’s reproductive health in early modern Europe and America, from menstruation to childbirth
Is Roe the law in the United States of America today?
Yes and no. To answer the question, we need to go back to the years immediately after Roe. At the time, pro-lifers pursued an amendment to the Constitution banning abortion and recognising a right to life. But to keep the number of abortions low, anti-abortion groups also lobbied for gentler laws said to comply with Roe, such as statutes requiring women to wait 24 or 48 hours after visiting a clinic, or consult with their husbands, before having an abortion.
Since the final decades of the 20th century, abortion has become a major political issue. While politicians from both parties could at one time be found in the pro-life and pro-choice camps, the parties’ positions had diverged by 1980. Both Republicans (who generally oppose abortion) and Democrats (who generally favour a right to choose abortion) helped to polarise American debate even further.
After Ronald Reagan won the 1980 presidential election, a majority of lawmakers in both houses of Congress opposed abortion, but pro-lifers were too divided to agree on a constitutional amendment. Anti-abortion groups, however, soon identified a new mission: control of Supreme Court nominations, which would mean the difference for legal abortion. Through presidential elections, the movement would help to determine who made nominations for the Supreme Court. If abortion foes could forge a new majority in the Court, they could ensure that Roe v Wade was overturned.
Over the course of the decade following Reagan’s election, Republican presidents nominated a number of Supreme Court justices, and by 1992, many expected the Court to overturn Roe. But in 1992, in the case of Planned Parenthood v Casey, the Supreme Court preserved a right to abortion and suggested that it had as much to do with equality for women as it did with autonomy. But Casey did not leave Roe unscathed. The Court got rid of the trimester framework, instead holding that states could permissibly regulate abortion as long as they did not unduly burden a woman’s right to choose.
Casey did not defuse the conflict. In the 1990s, thousands of protestors tried to blockade clinics in major American cities, and there were a number of shocking cases in which abortion opponents killed doctors who performed the procedure, including Dr David Gunn in 1993 and Dr John Bayard Britton in 1994, both of whom were shot dead.
Pro-lifers continued to chip away at Roe, passing laws that criminalised specific abortion techniques or required women to hear dubious statements about the dangers of abortion before deciding whether or not to proceed. Pro-choice groups, meanwhile, often pushed beyond protection for freedom, instead campaigning for reproductive justice – shorthand for a platform that would not only give women the power to decide when to have children, but also provide women with financial support, jobs, health care, and other resources to raise the children they wished to have.
Why are we seeing so many abortion restrictions now, and will Roe be overturned?
In 2010, a backlash to Barack Obama’s healthcare reform delivered many state legislatures to Republicans, who went on to pass a record number of abortion restrictions. And by 2018, Donald Trump had replaced the Court’s swing vote, Anthony Kennedy, with a judge many predicted would overturn Roe.
Anti-abortion lawmakers took hope from the fact that the Federalist Society (a group of conservative jurists, professors, and lawyers) had screened nominees to ensure that they opposed Roe. Several states proceeded to pass laws that were blatantly unconstitutional under Casey, such as laws banning abortion at six weeks or earlier. The point, after all, was to force the Court to reconsider Roe.
So, will the Court undo the right to choose? The smart bet would be that the justices will at the very least dismantle abortion rights, although probably not as quickly as some believe. After all, Chief Justice John Roberts cares deeply about the Court’s reputation for being above partisanship, and Justice Brett Kavanaugh has repeatedly expressed his respect for precedent.
Undoing Roe will probably take time – and more than one decision by the Supreme Court. And, as history tells us, we can never be sure what the Court will actually do when it comes to Roe: everyone expected the Court to reverse the ruling in 1992. We could be wrong again.
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law, specialising in the legal history of reproduction, the family, sexuality, and the Constitution. Her books include After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015), Beyond Abortion: Roe v. Wade and the Fight for Privacy (Harvard University Press, 2018), and Abortion and the Law in America: Roe v. Wade to the Present(Cambridge University Press, March 2020)
This article was originally published in 2019 and has since been updated