Abortion has no history…
Final Decision of United States Supreme Court “…procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION, US Supreme Court, June 24, 2022
This is the news we all heard on the last Friday morning of June.
I would like to explore the conclusion that such a right has no basis in our Nation’s history. This decision was based on an extensive exploration of English law “dating all the way back to the 13th Century.” But the SCOTUS decision does not recognize the British and American common law acceptance of abortion before quickening and the general acceptance of abortion throughout history.
First Nations, with a much longer history on the North American continent, used black root and cedar root and other herbs as abortifacients.1 Many historians have documented that abortion was frequently practiced in North America during the period from 1600-1900. Under colonization, legality of abortion varied based on the European origin of governance. In the English colonies, and then the United States, abortion was legal if performed before quickening or approximately 4 months of gestation. Home medical guides suggested recipes for commonly known herbs that could be used to “bring on the menses.” Of course, none of this was overtly available to enslaved women whose owners wanted as many children as possible. But enslaved women used many of the same herbals as white women, especially cotton root bark.2
By the mid-eighteenth century, commercial abortifacients could be easily found, but many of these were toxic or fatal. This led to the first statutes in the 1820s and 30s to prevent poisoning. But these laws were largely ineffective at preventing use of toxic remedies. Further evidence of the unspoken acceptability of abortion prior to this time is reflected by the fact that the Catholic Church had not viewed abortion before quickening as homicide until Pope Pius IX reversed this policy in 1869. Political leadership to criminalize abortion came from the newly formed American Medical Association (AMA) which began a lobbying campaign in 1857. A large motivator for the campaign was the desire to eliminate competition from female midwives who previously provide all aspects of reproductive care. The campaign was directed at ensuring the dominance of the almost exclusively male medical profession. By the end of the 19th Century, the AMA and social and religious conservatives had joined forces to criminalize abortion in every US state. Racism combined with anti-immigrant sentiment also played a role against abortion because of concerns that white women were having fewer babies at the same time immigrants of color were increasing.
Once abortions were criminalized, women continued to have them only more covertly and often with greater danger to their lives. Despite the AMA position, many doctors continued to provide abortion and often midwives did the same. The Great Depression (1929-1939) proved that abortion was also an economic issue and introduced the consideration of social issues in medical decision making. As families lost their jobs and homes and married couples gave up children for adoption, abortions also increased. Many women could not afford to get married and if they got pregnant, could not afford to have or keep the child. Women rallied to the call for mutual support by contributing regularly to birth-control clubs that made funds available to women in need of abortion. During this time period enforcement of abortion laws lessened somewhat because almost everyone was affected by economic and social distress.
In the 1940s and 50s the legal and medical professions combined to disrupt collective abortion payment groups and providers. Women with financial means were still able to get therapeutic abortions but there were many more barriers. Estimated abortions in the 1950s and 60s were between 200,000 and 1.2 million a year. New groups formed in the 1960s to create underground abortion referral and support networks, these were composed of diverse actors including clergy, community activists and feminists. The medical profession then worked with the legal profession to clarify the legality of abortions in certain situations (married women). The American Law Institute (ALI) proposed a model state penal code for abortion laws that stated abortion could be performed in licensed hospitals when necessary to preserve the mental or physical health of the mother or in cases of rape or incest. ALI-type laws were passed in 13 states between 1967-1972. As these states decriminalized abortions many women traveled to them for care.
Legalization of abortion had major public health benefits while promoting a legal backlash. One year after abortion was legal in New York state, the maternal mortality rate decreased 45%. Roe v. Wade expanded abortion legalization across the nation, creating a major change in the abortion landscape while remaining controversial. Unfortunately, from the moment Roe v. Wade was implemented anti-abortion advocates began to restrict access at the state level. By the time Dobbs v. Jackson Women’s Health Organization was decided 1,381 abortion restrictions had been enacted since 1973.
So, the effort has been incremental but devastating for women’s health. A study of the association between state-level abortion restrictions and maternal mortality in the United States between 1995-2017 found that in 1995 all states had similar maternal mortality rates (MMR). By 2017 states that restricted access to abortion had 70% higher MMR than states with protections. The neutral states had rates midway between.3 Other studies have shown relationships between abortion access and higher levels of other maternal health indicators as well as improvements in infant mortality and child health.4
The US Supreme Court has ignored both the legal and lived history of abortion in North America. 40 million women (58% of women of reproductive age) live in states hostile to abortion rights. These women, their children and their families will be most affected by the Dobbs v Jackson ruling in terms of mortality, other negative health outcomes, and a broad range of socioeconomic limitations. Some women will continue to get abortions as they always have, but in a much more contentious environment. Many others will not due to limited geographic and financial resources. Abortion has a long history in the United States as well as almost every society in the world. We must continue to advocate to make it legal and safe.
July 25, 2022
- Acevedo Z. Abortion in early America. Women Health. 1979 Summer;4(2):159-67. doi: 10.1300/J013v04n02
- Reagan LJ. When Abortion was a Crime, 1997/2022, University of California Press, Oakland, CA.
- Addante AN, et al. The association between state-level abortion restrictions and maternal mortality in the United States, 1995-2017. Contraception 104 (2021) 496-501.
- Thompson TA, Seymour J. Evaluating Priorities: Measuring Women’s and Children’s Health and Well-being against Abortion Restrictions in the States. Research Report. Ibis Reproductive Health; June 2017