How U.S. abortion laws went from nonexistent to acrimonious

Most scholars say that at the nation's founding ending a pregnancy wasn’t illegal—or even controversial. Here’s a look at the complex early history of abortion in the United States.

There weren't any laws against abortion in the U.S. until the 19th century—and as those laws grew more restrictive, many women sought abortions in secret. Surgeon George T. Strother, shown at right with a patient, defied Virginia's law against abortion and was arrested in 1954. The man with his back to the camera is a doctor who accompanied the police on a raid of Strother's medical facility.
Bettmann, Getty Images

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.

Before abortion law  

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.

Until the mid-19th century, writes University of Illinois historian Leslie J. Reagan in her book When Abortion Was a Crime. “What we would now identify as an early induced abortion was not called an ‘abortion’ at all. If an early pregnancy ended, it had ‘slipp[ed] away,’ or the menses had been ‘restored.’”

How early abortion worked

At the time, women who did not wish to remain pregnant had plenty of options. Herbs like savin, tansy, and pennyroyal were common in kitchen gardens, and could be concocted and self-administered to, in the parlance of the time, clear “obstructions” or cause menstruation.

“It was really a decision that a woman could choose in private,” MacIvor Thompson says.

A pregnant woman might consult with a midwife, or head to her local drug store for an over-the-counter patent medicine or douching device. If she owned a book like the 1855 Hand-Book of Domestic Medicine, she could have opened it to the section on “emmenagogues,” substances that provoked uterine bleeding. Though the entry did not mention pregnancy or abortion by name, it did reference “promoting the monthly discharge from the uterus.”

Though reasons varied, a lack of reliable contraception, the disgrace of bearing a child outside of marriage, and the dangers of childbirth were the main reasons women terminated their pregnancies. Though birth rates were high—in 1835, the average woman would give birth more than six times during her lifetime—many women wanted to limit the number of times they would have to carry and bear a child. In an era before modern medical procedures, the grave dangers of childbirth were widely understood. In the words of historian Judith Walzer Leavitt, “Women knew that if procreation did not kill them or their babies, it could maim them for life.”

(Subscriber exclusive: Women's health concerns are dismissed more, studied less.)

As a result, the deliberation termination of pregnancy was widely practiced, and by some estimates, up to 35 percent of 19th-century pregnancies ended in abortion.

For enslaved women, abortion was more tightly regulated because their children were seen as property. In the Journal of American Studies, historian Liese M. Perrin writes that many slaveholders were paranoid about abortion on their plantations; she documents that at least one slaveholder locked an enslaved woman up and stripped her of privileges because he suspected she had self-induced a miscarriage. Still, bondswomen’s medical care was usually left to Black midwives who practiced folk medicine.  And at least some enslaved women are known to have used abortifacients, chewing cotton roots or ingesting substances like calomel or turpentine.

Middle- and upper-class white women, however, had an advantage when it came to detecting and treating unwanted pregnancies in the 19th century. Their strictly defined roles in society held that the home—and issues of reproductive health—were a woman’s realm.  And so women, not doctors, were the ones who held and passed down knowledge about pregnancy, childbirth, and reproductive control. “It gave them a space to make their own decisions about their reproductive health,” MacIvor Thompson says.

Criminalizing abortion

That would slowly change throughout the century as the first abortion laws slowly made their ways onto the books. Most were focused on unregulated patent medicines and abortions pursued after quickening. The first, codified in Connecticut in 1821, punished any person who provided or took poison or “other noxious and destructive substance” with the intent to cause “the miscarriage of any woman, then being quick with child.”

Patent medicines were a particular concern; they were available without prescriptions, and their producers could manufacture them with whatever ingredients they wished and advertise them however they liked. Many such medicines were abortifacients and were advertised as such—and they were of particular concern to doctors.

As physicians professionalized in the mid-19th century, they increasingly argued that licensed male doctors, not female midwives, should care for women throughout the reproductive cycle. With that, they began to denounce abortion.

Gynecologist Horatio Storer led the charge. In 1857, just a year after joining the barely decade-old American Medical Association, Storer began pushing the group to explore what he called “criminal abortion.”  Storer argued that abortion was immoral and caused “derangement” in women because it interfered with nature. He lobbied for the association to think of abortion not as a medical act, but a grave crime, one that lowered the profession as a whole.

A power player within the association, he gathered fellow physicians into a crusade called the Physicians Campaign Against Abortion. The doctors’ public stance helped serve as justification for an increasing number of criminal statutes.

For its opponents, abortion was as much a social evil as a moral one. The influx of immigrants, the growth of cities, and the end of slavery prompted nativist fears that white Americans were not having enough babies to stave off the dominance of groups they found undesirable. This prompted physicians like Storer to argue that white women should have babies for the “future destiny of the nation.”

A nation of outlaws

By 1900, writes University of Oregon historian James C. Mohr in his book Abortion in America, “the United States completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and officially proscribed.” Just 10 years later, every state in the nation had anti-abortion laws—although many of these laws included exceptions for pregnancies that endangered the life of the mother.

With the help of a U.S. postal inspector named Anthony Comstock, it had also become harder to access once-common information on how to end an unwanted pregnancy. The 1873 Comstock Act made it illegal to send “obscene” materials—including information about abortion or contraception—through the mail or across state lines.

“Americans understood that abortion and birth control went hand in hand,” MacIvor Thompson says.

The combination of anti-obscenity laws, criminal statutes, and the 1906 Pure Food and Drug Act, which made it unlawful to make, sell, or transport misbranded or “deleterious” drugs or medicines, made it increasingly difficult for women to access safer forms of abortion.

“The legal punishments in place absolutely had a chilling effect,” says MacIvor Thompson. “And yet, just like a hundred years earlier, women still sought them frequently.”

As the 20th century dawned, under-the-table surgical abortions became more common, discreetly practiced by physicians who advertised by word-of-mouth to those who could afford their services. Those who could not used old herbal recipes, drank creative concoctions, douched with substances like Lysol, or attempted to remove the fetuses on their own.

Advocates of the growing birth control movement even used now-illegal abortion to argue for legal contraception. Birth control pioneer Margaret Sanger said that she was inspired to make teaching women about contraceptives her career after treating a woman who died from a self-induced abortion—a practice she called a “disgrace to a civilized community.”

(How the first birth control pill was designed.)

It’s still up for debate how frequently women sought abortions in the 20th century—and how often they died from self-induced or botched, “back-alley” abortions. In 1942, the question vexed the Bureau of the Census’ chief statistician, Halbert Dunn, who noted that, despite the lack of accurate reporting, “abortion is evidently still one of the greatest problems to be met in lowering further the maternal mortality rate for the country.”

The modern battle over abortion

By 1967, abortion was a felony in nearly every state, with few provisions for the health of the mother or pregnancies arising from rape.

But all that changed in the 1970s. States across the country had begun to reconsider their laws and loosen their restrictions on abortion, and in 1973, the Supreme Court seemingly settled the question with two landmark rulings—Roe v. Wade and the lesser-known but equally important Doe v. Bolton—that made terminating a pregnancy a legal right nationwide.

(How rubella changed minds on abortion in the 20th century.)

 The country has debated the merits of those rulings ever since. Now, 50 years later, generations of women have never known life before Roe—which MacIvor Thompson says “changed the landscape in terms of [abortion] safety, efficacy, and availability.” Time will tell how that landscape could shift again if Roe v. Wade is overturned. But the nation’s contentious history may offer some clues.

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