Early history and rise of anti-abortion legislation Abortion in what eventually became the United States was governed by English Common law, which held that abortion after
quickening was murder. This was repeated by
Henry de Bracton,
Matthew Hale, and
William Blackstone. The common law on abortions before quickening was varying. Some historians argue that abortion was a fairly common practice in the history of the United States, and was not always controversial. At a time when society was more concerned with the more serious consequence of women becoming pregnant out of wedlock, family affairs were handled out of public view. James Mohr wrote that even though pre-quickening abortion was legal in the first three decades of the 19th century, only 1 in 25 to 1 in 30 pregnancies ended in abortion. By the 1850s and 1860s, this number had increased to 1 in 5 or 1 in 6. John Keown highlighted some challenges in pinning down the common law view, observing that "evidence of quickening would clearly facilitate prosecution". In the mid-18th century,
Benjamin Franklin included a recipe for an
abortifacient in a math textbook. In 1728, Franklin condemned publisher
Samuel Keimer for publishing an article on abortion. According to biographer
Walter Isaacson, Franklin did not have a strong view on the issue. In
The Speech of Polly Baker, Franklin places the blame for abortion and infanticide on the
sexual double standard against women. He stated: Forgive me Gentlemen, if I talk a little extravagantly on these Matters; I am no Divine: But if you, great Men, must be making Laws, do not turn natural and useful Actions into Crimes, by your Prohibitions. Reflect a little on the horrid Consequences of this Law in particular: What Numbers of procur'd Abortions! and how many distress'd Mothers have been driven, by the Terror of Punishment and public Shame, to imbrue, contrary to Nature, their own trembling Hands in the Blood of their helpless Offspring! Nature would have induc'd them to nurse it up with a Parent's Fondness. 'Tis the Law therefore, 'tis the Law itself that is guilty of all these Barbarities and Murders. Repeal it then, Gentlemen; let it be expung'd for ever from your Books: And on the other hand, take into your wise Consideration, the great and growing Number of Batchelors in the Country, many of whom, from the mean Fear of the Expense of a Family, have never sincerely and honourably Courted a Woman in their Lives; and by their Manner of Living, leave unproduced (which I think is little better than Murder) Hundreds of their Posterity to the Thousandth Generation. Is not theirs a greater Offence against the Public Good, than mine? Compel them then, by a Law, either to Marry, or pay double the Fine of Fornication every Year. In 1716, New York passed an ordinance prohibiting midwives from providing abortion.
Thomas Jefferson wrote approving of a quote by
Montesquieu that "‘there is among
savages another custom . . . it is the cruel practice of abortion." Jefferson added that the Natives stopped the practice after becoming "civilized". Connecticut became the first state to regulate abortion by statute in 1821. Many states subsequently passed various abortion laws. In 1829,
New York made post-quickening abortions a
felony and pre-quickening abortions a
misdemeanor. This was followed by 10 of the 26 states creating similar restrictions within the next few decades, in particular by the 1860s and 1870s. Criminalization did not end the practice of abortion; unlicensed doctors and midwives continued to perform them. Most of the women receiving abortions from unlicensed practitioners were poor. Women's safety continued to be a concern, especially after the highly publicized death of
Mary Rogers. Wealthier women could pay willing physicians to broadly interpret health exceptions in their favor. Euphemistic advertisements for abortifacients offered an assortment of herbal remedies. A number of other factors likely played a role in the rise of anti-abortion laws. As in Europe, abortion techniques advanced starting in the 17th century, and the
conservatism of most in the medical profession with regards to
sexual matters prevented the wide expansion of abortion techniques.
Physicians, who were the leading advocates of abortion criminalization laws, appear to have been motivated at least in part by advances in medical knowledge. Science had discovered that
fertilization inaugurated a more or less continuous process of development, which produced a new human being. Quickening was found to be not more or less crucial in the process of
gestation than any other step. Many physicians concluded that if society considered it unjustifiable to terminate pregnancy after the fetus had quickened, and if quickening was a relatively unimportant step in the gestation process, then it was just as wrong to terminate a pregnancy before quickening as after quickening. Patricia Cline Cohen, a professor emeritus at the University of California, Santa Barbara, said that these laws had come about not because society saw abortion as a crime but from a small group of doctors who had taken it upon themselves to prove to the rest of the county that pre-quickening abortion should be seen as a crime. The doctors used flawed math to convince the
American Medical Association to accept that pre-quickening abortion should also be outlawed, leading to the raft of state laws banning abortion in the latter half of the 19th century. Doctors were also influenced by practical reasons to advocate anti-abortion laws. For one, abortion providers were usually female midwives without formal training or education. In an age where the leading doctors in the nation were attempting to standardize the medical profession, these unlicensed practitioners were considered a nuisance to public health. Despite campaigns to end the practice of abortion, abortifacient advertising was highly effective and abortion was commonly practiced, with the help of a
midwife or other women, in the mid-19th century, although they were not always safe. While the precise abortion rate was not known, James Mohr's 1978 book
Abortion in America documented multiple recorded estimates by 19th-century physicians, This era also saw a marked shift in the people who were obtaining abortions. Before the start of the 19th century, most abortions were sought by unmarried women, who had become pregnant
out of wedlock and for which there was much less compassion compared to married women who got an abortion; many of them were wealthy and paid well. The sense that married women were now frequently obtaining abortions worried many conservative physicians, who were almost exclusively men. In the
Reconstruction era, much of the blame was placed on the burgeoning
women's rights movement. Although the medical profession expressed hostility toward
feminism, many feminists of the era were also opposed to abortion. In
The Revolution, a newspaper operated by
Elizabeth Cady Stanton and
Susan B. Anthony, an 1869 opinion piece was published arguing that instead of merely attempting to pass a law against abortion, the root cause must also be addressed. The writer stated that simply passing an anti-abortion law would be "only mowing off the top of the noxious weed, while the root remains. ... No matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; But oh! thrice guilty is he who drove her to the desperation which impelled her to the crime." To many feminists of this era, abortion was regarded as an undesirable necessity forced upon women by thoughtless men. The
free love wing of the feminist movement refused to advocate for abortion and treated the practice as an example of the hideous extremes to which modern marriage was driving women.
Marital rape and the seduction of unmarried women were societal ills, which feminists believed caused the need to abort, as men did not respect women's right to
abstinence. The production, publication, importation, and distribution of such materials was suppressed under the Comstock Law as being obscene, and similar prohibitions were passed by 24 of the 37 states. By 1900, abortion was normally a felony in every state. Some states included provisions allowing for abortion in limited circumstances, generally to protect the woman's health or to terminate pregnancies arising from rape or incest. Most Americans did not view abortion as a crime, and abortions continued to occur and became increasingly available. The
American Birth Control League was founded by
Margaret Sanger in 1921; it would become Planned Parenthood Federation of America in 1942. By the 1930s, licensed physicians performed an estimated 800,000 abortions a year.
Unsafe abortions In 1988, 17 year old
Becky Bell died from an infection after an unsafe abortion. She lived in Indiana where parental consent was required to have a safe and legal abortion.
Laurence H. Tribe wrote in
Abortion: The Clash of Absolutes that Bell's best friend said that Becky considered an out-of-state abortion to get around Indiana's parental consent requirement. It is possible she performed the abortion herself. However it was done, Becky died from an infection that was probably caused by the procedure. Her parents publicly campaigned against parental consent laws after her death.
Rosie Jimenez died from sepsis in 1977 following an abortion procedure at the home of a midwife who was not licensed to perform abortions. She did not go to a licensed physician because the
Hyde Amendment barring public Medicaid funding for abortions had gone into effect after surviving a statutory challenge in
Beal v. Doe and an
Equal Protection challenge in
Maher v. Roe. Dr. Abu Hayat was convicted by a Manhattan Court in 1993 for performing an illegal third trimester abortion at his clinic in
Alphabet City. The doctor began the
dilation and evacuation procedure which was not legal in the third trimester. The baby was born alive before the procedure could be completed. She was missing an arm that had been severed during the D&E. Hayat argued that he was protected from criminal conviction by
Roe v. Wade based on an argument that the baby had not yet been born when he attempted the procedure. 17 year old Sophie McCoy died in 1990 from an infected uterine perforation after receiving an abortion at Dr. Hayat's clinic. Inequality in access to safe and legal abortions persists to this day whereby many women cannot afford to obtain a legal abortion; in such cases, women may turn to
illegal abortion.
Sherri Finkbine In the early 1960s, a controversy centered around children's television host Sherri Finkbine that helped bring abortion and abortion law more directly into the American public eye. Living in the area of
Phoenix, Arizona, Finkbine had had four healthy children; during her pregnancy with her fifth child, she discovered the child might have severe deformities when born. This was likely because Finkbine had been taking sleeping pills that she was unaware contained
thalidomide, a drug that increases the risk of fetal deformities during pregnancy. Though Finkbine wanted an abortion, the
abortion laws of Arizona only allowed abortions if a pregnancy posed a threat to the woman's life. The situation gained public attention after Finkbine shared the story with a reporter from
The Arizona Republic, who disclosed her identity in spite of her requests for anonymity. On August 18, 1962, Finkbine traveled to
Sweden to obtain a legal abortion, where it was confirmed that the fetus had severe deformities.
Pre-Roe precedents In 1964,
Gerri Santoro of Connecticut died trying to obtain an illegal abortion, and her photo became the symbol of an
abortion-rights movement. Some women's rights activist groups developed their own skills to provide abortions to women who could not obtain them elsewhere. As an example, in Chicago, a group known as "
Jane" operated a floating abortion clinic throughout much of the 1960s. Women seeking the procedure would call a designated number and be given instructions on how to find "Jane". In 1965, the
U.S. Supreme Court case
Griswold v. Connecticut struck down one of the remaining contraception
Comstock laws in
Connecticut and
Massachusetts. However,
Griswold only applied to marital relationships, allowing married couples to buy and use contraceptives without government restriction. It took until 1972, with
Eisenstadt v. Baird, to extend the precedent of
Griswold to unmarried persons as well. Following the
Griswold case, the
American College of Obstetricians and Gynecologists (ACOG) issued a medical bulletin accepting a recommendation from six years earlier that clarified that "conception is the implantation of a fertilized ovum", and consequently
birth control methods that prevented implantation became classified as
contraceptives, not
abortifacients. In 1967,
Colorado became the first state to decriminalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical
disability of the woman. Similar laws were passed in
California,
Oregon, and
North Carolina. In 1970,
Hawaii became the first state to legalize abortions on the request of the woman, and New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. Similar laws were soon passed in
Alaska and
Washington. In 1970, Washington held a referendum on legalizing early pregnancy abortions, becoming the first state to legalize abortion through a vote of the people. A law in
Washington, D.C., which allowed abortion to protect the life or health of the woman, was challenged in the Supreme Court in 1971 in
United States v. Vuitch. The court upheld the law, deeming that "health" meant "psychological and physical well-being", essentially allowing abortion in Washington, D.C. By the end of 1972, 13 states had a law similar to that of Colorado, while
Mississippi allowed abortion in cases of rape or incest only and
Alabama and
Massachusetts allowed abortions only in cases where the woman's physical health was endangered. In order to obtain abortions during this period, women would often travel from a state where abortion was illegal to one where it was legal. The legal position prior to
Roe v. Wade was that abortion was illegal in 30 states and legal under certain circumstances in 20 states.
Roe v. Wade membership in 1973F.l.t.r. seated
Potter Stewart,
William O. Douglas,
Warren E. Burger (chief justice),
William Brennan, and
Byron White.Standing
Lewis F. Powell,
Thurgood Marshall,
Harry Blackmun, and
William Rehnquist. Prior to
Roe v. Wade, 30 states prohibited abortion without exception, 16 states banned abortion except in certain special circumstances (e.g. rape, incest, and health threat to mother), 3 states allowed residents to obtain abortions, and New York allowed abortions generally. Early that year, on January 22, 1973, the
U.S. Supreme Court in
Roe v. Wade invalidated all of these laws, and set guidelines for the availability of abortion. The decision returned abortion to its liberalized pre-1820 status.
Roe also established a trimester framework, defined as the end of the first
pregnancy trimester (12 weeks), as the threshold for state interest, such that states were prohibited from banning abortion in the first trimester but allowed to impose increasing restrictions or outright bans later in pregnancy. In deciding
Roe v. Wade, the Court ruled that a
Texas statute forbidding abortion except when necessary to save the life of the mother was unconstitutional. The Court arrived at its decision by concluding that the issue of abortion and abortion rights falls under the
right of privacy in the United States (e.g. federal constitutionally-protected right), in the sense of the right of a person not to be encroached by the state. In its opinion, it listed several landmark cases where the court had previously found a right to privacy implied by the Constitution. The Court did not recognize a right to abortion in all cases, saying: "State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." The Court held that a right to privacy existed and included the right to have an abortion. The court found that a mother had a right to abortion until viability, a point to be determined by the abortion doctor. After viability a woman can obtain an abortion for health reasons, which the Court defined broadly to include psychological well-being. A central issue in the
Roe case and in the wider abortion debate in general is whether human life or personhood begins at conception, birth, or at some point in between. The Court declined to make an attempt at resolving this issue, writing: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Instead, it chose to point out that historically, under English and American
common law and statutes, "the unborn have never been recognized ... as persons in the whole sense", and thus the fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment. Rather than asserting that human life begins at any specific point, the Court declared that the state has a "compelling interest" in protecting "potential life" at the point of viability. This rule was clarified by the 1973 judicial decision
Doe v. Bolton, which specifies "that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient". It is by this provision for the mother's mental health that women in the U.S. legally choose abortion after viability when screenings reveal abnormalities that do not cause a baby to die shortly after birth.
Religious response to legalization of abortion In the late 1960s, a number of organizations were formed to mobilize opinion both against and for the legalization of abortion. In 1966, the
National Conference of Catholic Bishops assigned Monsignor
James T. McHugh to document efforts to reform abortion laws, and anti-abortion groups began forming in various states in 1967. In 1968, McHugh led an advisory group which became the
National Right to Life Committee. The forerunner of the
NARAL Pro-Choice America was formed in 1969 to oppose restrictions on abortion and expand access to abortion. Following
Roe v. Wade, in late 1973, NARAL became the National Abortion Rights Action League.
Evangelical Christians were initially generally either supportive or indifferent to
Roe — citing what they saw as
a lack of biblical condemnation on the matter, its perceived affirmation of
religious liberty, and furthering of
non-intrusive government — but by the 1980s began to join anti-abortion Catholics to overturn the decision.
Planned Parenthood v. Casey In the 1992 case of
Planned Parenthood v. Casey, the Court abandoned ''Roe's'' strict trimester framework but maintained its central holding that women have a right to choose to have an abortion before viability. but re-emphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution: "Constitutional protection of the woman's decision to terminate her pregnancy derives from the
Due Process Clause of the
Fourteenth Amendment to the United States Constitution. It declares that no state shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is 'liberty'." The Supreme Court continues to make decisions on this subject. On April 18, 2007, it issued a ruling in the case of
Gonzales v. Carhart, involving a federal law entitled the
Partial-Birth Abortion Ban Act of 2003 which President
George W. Bush had signed into law. The law banned
intact dilation and extraction, which opponents of abortion rights referred to as "partial-birth abortion", and stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The United States Supreme Court upheld the 2003 ban by a narrow majority of 5–4, marking the first time the Court has allowed a ban on any type of abortion since 1973. The opinion, which came from justice Anthony Kennedy, was joined by Justices
Antonin Scalia,
Clarence Thomas, and the two recent appointees,
Samuel Alito and Chief Justice
John Roberts. In the case of ''
Whole Woman's Health v. Hellerstedt'', the Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on the way abortion clinics can function. The Texas legislature enacted in 2013 restrictions on the delivery of abortions services that, it was argued by its opponents, created an undue burden for women seeking an abortion by requiring abortion doctors to have difficult-to-obtain "admitting privileges" at a local hospital and by requiring clinics to have costly hospital-grade facilities. The Court supported this argument and struck down these two provisions "facially" from
the law at issue—that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. According to the Supreme Court, the task of judging whether a law puts an unconstitutional burden on a woman's right to abortion belongs with the courts, and not the legislatures. The Supreme Court ruled similarly in
June Medical Services, LLC v. Russo on June 29, 2020, in a 5–4 decision that a Louisiana state law, modeled after the Texas law at the center of ''Whole Woman's Health
, was unconstitutional. The Supreme Court found the Louisiana law unconstitutional for the same reasons as the Texas one, reversing the Fifth Circuit. The judgment was supported by Chief Justice John Roberts who had dissented on Whole Woman's Health'' but joined in judgment as to upholding the court's respect for the past judgment in that case.
Federal provision for telemedical abortions In December 2021, the
FDA legalized
telemedical provision of abortion pills with delivery by mail, after finding this to be safe and effective, and having suspended enforcement of previous restrictions during the COVID-19 pandemic. As of June that year, 31 states allowed the practice, fourteen required the prescribing clinician to be physically present, which effectively banned telemedicine, and five explicitly banned telemedical abortion.
''Dobbs v. Jackson Women's Health Organization'' ,
Clarence Thomas,
John G. Roberts, Jr.,
Justice Stephen G. Breyer,
Sonia Sotomayor.Back row, l.t.r.:
Brett M. Kavanaugh,
Elena Kagan,
Neil M. Gorsuch,
Amy Coney Barrett. The Supreme Court granted
certiorari to ''Dobbs v. Jackson Women's Health Organization
in May 2021, a case that challenges the impact of Roe v. Wade in blocking enforcement of a 2018 Mississippi law (the Gestational Age Act) that had banned any abortions after the first 15 weeks. Oral arguments to Dobbs
were held in December 2021, and a decision was expected by the end of the 2021–22 Supreme Court term. On September 1, 2021, Texas passed the Texas Heartbeat Act, one of the most restrictive abortion laws in the nation, banning most procedures after six weeks. On May 2, 2022, a leaked draft majority opinion for Dobbs
, written by Samuel Alito, set to overturn Roe
was reported by Politico''. On June 24, 2022, the Supreme Court overruled both
Roe and
Planned Parenthood v. Casey in the
Dobbs case on
originalist grounds that a right to abortion cannot be found in the U.S. Constitution.
John Roberts, the
Chief Justice of the United States, concurred in the decision to uphold the law at question as constitutional, by a 6–3 vote, but did not support overruling both
Roe and
Casey. This enabled
trigger laws, which had been passed in 13 states, to ban abortions in those states. Abortion-related initiatives were placed on the
2022 ballot in six states, as
2022 California Proposition 1,
2022 Michigan Proposal 3, and
2022 Vermont Proposal 5 enshrined the right to an abortion in state constitutions, while the
2022 Kansas abortion referendum,
2022 Kentucky Amendment 2, and
Montana Legislative Referendum No. 131 rejected restrictions on abortion. Voters in Ohio defeated
August 2023 Ohio Issue 1, which intended to make changes to the state's constitution more difficult.
November 2023 Ohio Issue 1 was then approved by a majority of voters, which added the right to an abortion to the
Ohio constitution.
FDA v. Alliance for Hippocratic Medicine brought into question the
Food and Drug Administration (FDA)'s approval and rules around
mifepristone, after lower courts had deemed the FDA's approval unlawful. In Arizona, the state Supreme Court ruled in
Planned Parenthood Arizona v. Mayes that instead of a 15-week ban on abortion passed by the state in 2022, that the state should follow a 1902 law, based on a pre-ratification 1864 law, that disallowed nearly any abortion except in the case of a medical emergency, though the state government repealed the 1902 law in May 2024 to allow the 2022 law to take precedence. Some Republicans, including allies of presidential candidate Donald Trump, have pushed
Project 2025, a sweeping government reform plan that includes banning abortions at a federal level as well as access to medical abortions drugs. Democrats used the pushback against these Republican and conservative anti-abortion goals as a point of campaigning for the election. Although states nominally allow abortion to prevent the woman's imminent death, five woman have died to pregnancy related issues in Texas alone due to doctors refusing to perform abortions because of the state's abortion law despite the
de jure legal circumstances. Abortion-related issues were a topic in the
2024 United States elections, including these referendums:
2024 Arizona Proposition 139,
2024 Colorado Amendment 79,
2024 Florida Amendment 4,
2024 Montana Initiative 128,
2024 Maryland Question 1,
2024 Missouri Amendment 3,
2024 New York Proposal 1,
2024 Nebraska Initiative 439,
2024 Nevada Question 6, and
2024 South Dakota Amendment G. In 2026, 2024 Nevada Question 6 needs to be approved again to enshrine abortion in the state's constitution, while legislators in Hawaii, Virginia, and the state of Washington proposed similar amendments to codify abortion rights in 2026. == Fetal homicide laws ==