The Complicated History of Abortion and Abortion Law in the United States

The divisive battle over abortion has flared up once more with the leak of a U.S. Supreme Court draft majority opinion by Associate Justice Samuel Alito that would overturn the 1973 Roe v. Wade decision affirming the right to abortion nationwide. In his draft opinion, Alito drew on the work of certain historians and concluded the right to abortion was not rooted in the country’s “history or tradition.”

But that view of history is the subject of great dispute. Though interpretations differ, most scholars who have investigated the history of abortion argue that terminating a pregnancy wasn’t always illegal—or even controversial. Here’s what they say about the nation’s long, complicated relationship with abortion.

In colonial America and the early days of the republic, there were no abortion laws at all. Church officials frowned on the practice, writes Oklahoma University of Law legal historian Carla Spivack in the William & Mary Journal of Race, Gender, and Social Justice, but they treated the practice as evidence of illicit or premarital sex—not as murder.

Some localities prosecuted cases involving abortions. In 1740s Connecticut, for example, prosecutors tried both a doctor and a Connecticut man for a misdemeanor in connection with the death of Sarah Grosvenor, who had died after a botched abortion. However, the case centered around the men’s role in the woman’s death, not abortion per se, and such prosecutions were rare.

In fact, says Lauren MacIvor Thompson, a historian of women’s rights and public health and an assistant professor at Kennesaw State University, “abortion in the first trimester would have been very, very common.”

That’s in part because of society’s understanding of conception and life.

Many historians agree that in an era long before reliable pregnancy tests, abortion was generally not prosecuted or condemned up to the point of quickening—the point at which a pregnant woman could feel the fetus’ first kicks and movements. At the time quickening might be the only incontrovertible evidence of pregnancy; indeed, one 1841 physician wrote that many women didn’t even calculate their due dates until they had felt the baby kick, which usually takes place during the second trimester, as late as 20 weeks into the pregnancy. That’s when the fetus was generally recognized as a baby or person.