A Brief History of Abortion Law in America

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tags: abortion, Supreme Court, SCOTUS, womens history, Roe v Wade



Irin Carmon is a co-author of Notorious RBG: The Life and Times of Ruth Bader Ginsburg.

Abortion is as old as antiquity. As long as people have been having sex, there have been women having abortions. The American debate over whether a woman should have the right to end her pregnancy is a relatively new phenomenon. Indeed, for America’s first century, abortion wasn’t even banned in a single US state.

Even the definition of abortion was different. In early America, as in Europe, “What we would now identify as an early induced abortion was not called an ‘abortion’ at all,” writes Leslie Reagan in When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. “If an early pregnancy ended, it had ‘slipp[ed] away,’or the menses had been ‘restored.’ At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view.” Abortion was permissible until a woman felt a fetus move, or “quicken.” Back then, Reagan notes, “the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”

When US states did begin banning abortion in the 19th century, doctors seeking to drive out traditional healers, or in their words, quacks, often led the way. They had help from nativists who were concerned about women’s growing independence and the country’s growing diversity. Contemplating the colonization of the West and South in 1868, anti-abortion campaigner Dr. Horatio R. Storer asked if these frontiers would be “be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation.” Who would control those loins, and indeed whose childbearing is considered desirable, lay at the heart of regulations on abortion and contraception across the centuries.

The laws every state passed by 1880 banned abortions in all cases but for “therapeutic reasons” that were largely left up to the medical practice and the legal system to determine. In practice, that meant wealthier women with better access to doctors had abortions, while other women bled. “One stark indication of the prevalence of illegal abortion was the death toll,” writes Rachel Benson Gold of the Guttmacher Institute. “In 1930, abortion was listed as the official cause of death for almost 2,700 women—nearly one-fifth (18 percent) of maternal deaths recorded in that year.” Fatalities began decreasing with the advent of antibiotics to treat sepsis, but this too depended on one’s status. “In New York City in the early 1960s,” Benson Gold notes, “1 in 4 childbirth-related deaths among white women was due to abortion; in comparison, abortion accounted for 1 in 2 childbirth-related deaths among nonwhite and Puerto Rican women.”

As other countries began liberalizing their abortion laws, women who could afford it began circulating pamphlets on how to make the trip. At least hundreds of women went to Mexico, England, Sweden — even Asia. The California-based Society for Humane Abortion, founded in 1961, explained how West Coast women could go as far as Japan to terminate: “If they want to know why you want to get the passport in a hurry, tell them you are meeting a tour group in Japan and you didn’t know you could go till just now….Try to get the price reduced. Tell them you are a student or a poor working girl and don’t have much money.” The Chicago-based Jane, founded in the late 1960s, famously had a hotline where women could ask for “Jane” to be referred to an illegal abortion, and eventually members began performing abortions themselves. By 1973, these women had performed an estimated 11,000 abortions. “The women in the service were bold, and there was a growing women’s movement which was about taking our lives into our own hands,” recalled Jane co-founder Heather Booth. ...




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