Abortion
The debate over whether abortion should be a legal option has long divided people around the world. Split into two groups, pro-choice and pro-life, the two sides frequently clash in protests.
(This article first appeared on ProCon.org and was last updated on Mar. 19, 2024.)
Early History
Abortion techniques were developed as early as 1550 bce, when the Egyptian medical text Ebers Papyrus suggested that the vaginal insertion of plant fiber covered with honey and crushed dates could induce an abortion. Abortion was an accepted practice in ancient Greece and Rome. Greek philosopher Aristotle (384–322 bce) wrote that “when couples have children in excess, let abortion be procured before sense and life have begun.” In the latter days of the Roman Empire, abortion was not considered homicide, but a crime against a husband who would be deprived of a potential child. [86][87]
Throughout much of Western history, abortion was not considered a criminal act as long as it was performed before “quickening” (the first detectable movement of the fetus, which can occur between 13–25 weeks of pregnancy). American states derived their initial abortion statutes from British common law, which followed this principle. Until at least the early 1800s, abortion procedures and methods were legal and openly advertised throughout the United States. Abortion was unregulated, however, and often not only unsafe, but potentially fatal. [86][88][89][90][91][106]
In 1821, Connecticut became the first U.S. state to criminalize abortion. The state banned the selling of an abortion-inducing poison, but it did not punish those who took the poison. Legal consequences began in 1845 when New York criminalized a woman’s participation in her abortion, whether it took place before or after “quickening.” In the mid-1800s, early pro-life advocate Dr. Horatio Robinson Storer (1830–1922) convinced the American Medical Association to join him in campaigning for the outlawing of abortion nationwide. By the early 1900s, most states had banned abortion. By 1965, all 50 states had outlawed abortion, with some exceptions varying by state. [41][42][90][92]
The motivation behind these early abortion laws has been disputed. Some writers argue that the laws were not aimed at preserving the lives of unborn children, but rather were intended to protect women from unsafe abortion procedures, or to allow the medical profession to take over responsibility for women’s health from untrained practitioners. Others say that pro-life concerns were already prevalent and were a major influence behind the efforts to ban abortion. [86][90][93]
Roe v. Wade
Federal action on abortion didn’t occur until Roe v. Wade, which declared most state anti-abortion laws unconstitutional. The U.S. Supreme Court’s 7–2 decision established rules based on a pregnancy trimester framework, banning legislative interference in the first trimester of pregnancy (0–12 weeks), allowing states to regulate abortion during the second trimester (weeks 13–28) “in ways that are reasonably related to maternal health,” and allowing a state to “regulate, and even proscribe” abortion during the third trimester (weeks 29–40) “in promoting its interest in the potentiality of human life,” unless an abortion is required to preserve the life or health of the mother. The decision also allowed states to prohibit abortions performed by anyone who is not a state-licensed physician. [49][95]
The initial Roe v. Wade lawsuit was filed at the Dallas federal district courthouse on Mar. 3, 1970 by pregnant Texas resident Norma McCorvey, named in court documents as “Jane Roe.” Henry Wade, Dallas County District Attorney from 1951 to 1987, was the named defendant. McCorvey was seeking to end her pregnancy, but abortion was illegal in Texas except to save the mother’s life. McCorvey said the pregnancy was the result of rape, but she later retracted that claim, admitting she lied in the hope of increasing her chances of procuring an abortion. The baby was eventually delivered and given up for adoption. McCorvey later abandoned her support of abortion rights, becoming a pro-life activist and an evangelical Christian in 1995. She then converted to Catholicism and took part in silent prayer vigils outside abortion clinics. In the 2020 documentary, AKA Jane Roe, McCorvey claimed anti-abortion activists paid her to support their cause. [96][97][100][123][218]
Hyde Amendment & Mexico City Policy
Immediately following Roe v. Wade, pro-life proponents pushed for federal legislation that would restrict abortion. In 1976, Congress passed the appropriations bill for the Departments of Labor, Health, Education, and Welfare (now the Department of Health and Human Services) which included an amendment ending Medicaid funding for abortions. Known as the “Hyde Amendment,” this provision banning federal funding for abortions has been renewed with various revisions every year since its inception. [60][168][221]
At the Aug. 1984 United Nations International Conference on Population held in Mexico City, Mexico, President Ronald Reagan announced the Mexico City Policy, which restricted all non-governmental organizations funded by the U.S. Agency for International Development (USAID) from performing or promoting abortion services. President Bill Clinton rescinded the policy (Jan. 22, 1993); President George W. Bush reenacted it (Jan. 22, 2001); President Barack Obama again rescinded it (Jan. 23, 2009); President Donald Trump again reinstated it (Jan. 23, 2017); and President Joe Biden revoked it once again (Jan. 28, 2021). [60][168][221]
Planned Parenthood v. Casey
On June 29, 1992 the U.S. Supreme Court case Planned Parenthood of Southeastern Pennsylvania v. Casey (5–4) upheld the constitutional right to have an abortion, but it abandoned the “rigid trimester framework” outlined in Roe v. Wade and adopted a less restrictive standard for state regulations. The decision allowed states to impose waiting periods before an abortion can be obtained, allowed some legislative interference in the first trimester in the interest of health, and permitted parental consent requirements for minors seeking abortions. The Court ruled that none of these conditions imposed an “undue burden” upon those seeking abortions, but some pro-choice advocates warned that Roe v. Wade had been significantly weakened and that states would limit abortion access. [57][107][108][109]
Federal Regulation Post-Casey
On Nov. 5, 2003, after passing in the U.S. House of Representatives (281–142) and the U.S. Senate (64–34), the Partial-Birth Abortion Ban Act of 2003 was signed into law by President George W. Bush. This federal legislation banned physicians from providing intact dilation and extraction (also called a “partial-birth” abortion outside of the medical profession), a late-term (after 21 weeks gestation) method which accounted for 0.17% of abortion procedures in 2000. The act defines a “partial-birth abortion” as “an abortion in which the provider deliberately and intentionally vaginally delivers a living fetus until…the entire fetal head is outside the body of the mother, or…any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.” Pro-choice advocates challenged the constitutionality of the Partial-Birth Abortion Ban Act of 2003; however, the Apr. 18, 2007 U.S. Supreme Court case Gonzales v. Carhart/Gonzales v. Planned Parenthood upheld the act, ruling 5–4 that it did not impose “an undue burden on a woman’s right to abortion.” [43] [58] [59]
The topic of abortion was raised during the 2009–2010 U.S. Congress health care debate. Some pro-life advocates said the Patient Protection and Affordable Care Act would allow federal funding for abortions, a claim denied by abortion rights supporters. To ensure passage of the bill, President Barack Obama signed an executive order “to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services,” reaffirming Hyde Amendment restrictions and extending them to cover the newly created health insurance exchanges. [63]
In Mar. 2017 the Department of Health and Human Services announced that all federally funded shelters housing undocumented unaccompanied minors are henceforth prohibited from taking “any action that facilitates” access to abortion. The American Civil Liberties Union (ACLU) challenged this decision in Garza v. Hargan, and on Mar. 30, 2018 the U.S. District Court for the District of Columbia issued an injunction, ruling that the federal government must not interfere or obstruct any “unaccompanied immigrant minor children who are or will be in the legal custody of the federal government” from having an abortion while the case is being heard. [198][199][200]
State Restrictions
State restrictions on abortion access increased sharply after the 2010 midterm elections, in which Republicans gained at least 675 state legislative seats, the biggest gain made by any party in state legislatures since 1938. Between Roe v. Wade and Dec. 31, 2021, 1,338 new abortion restrictions were passed by states. 44% of those were passed after 2011, and the most (108) were passed in 2021. [162][178][179][234]
Most abortion restrictions were passed prior to the U.S. Supreme Court overturning Roe v. Wade on June 24, 2022. Those restrictions may no longer apply in states where "trigger laws," which ban abortion without the federal constitutional protection of Roe v. Wade, were in effect.
Fetal pain laws or 20-week bans
These laws typically ban abortion at or after 20 weeks of gestation on the theory that a fetus can feel pain at that time. On Apr. 13, 2010, Nebraska’s Republican Governor Dave Heineman signed the first law in the United States to restrict abortions based on fetal pain. After Nebraska’s law was passed, several other states enacted similar laws. [47][101][102]
Ultrasound laws
These laws require people seeking an abortion to get an ultrasound, which is frequently accompanied by a detailed description of the fetus’ heart, limbs, and organs. While other states had passed laws requiring an ultrasound before having an abortion, on Apr. 27, 2010, the Oklahoma legislature passed the first law requiring that the patient watch the monitor and listen to a detailed description of the fetus. However, the law was struck down by the Supreme Court in 2013. Many states have laws regulating the provision of ultrasound by abortion providers. [48][188]
Criminalization of abortions based on the sex or race of a fetus
This type of law was first enacted in Arizona on Mar. 29, 2011. The bill, signed into law by Republican Governor Jan Brewer, was opposed by Democrats, who said there was little evidence that sex- or race-selection abortions were taking place in the state. [64][186]
Fetal abnormality laws
These laws ban abortions in cases of fetal abnormality even if the fetus will die before or shortly after birth. Enacted in 2013, North Dakota was the first state to ban abortions in cases of fetal abnormality. [186]
“Fetal heartbeat” laws or six-week bans
This type of law outlaws abortions as early as six weeks after the last menstrual period, when an electrical impulse, often called a “fetal heartbeat,” can first be detected. In Mar. 2013 North Dakota enacted a “fetal heartbeat” law. A federal appeals court struck down the law in 2015, noting that the law “violates Supreme Court precedent establishing that abortion is legal until a fetus is viable outside of the womb, usually about 24 weeks into pregnancy.” In 2018, the governors of Mississippi and Iowa signed into law similarly restrictive abortion laws banning abortion at 15-weeks and 6-weeks respectively; both laws were put on hold by federal judges pending appeals. On Sep. 1, 2021, the most restrictive “fetal heartbeat” law to date went into effect in Texas after the U.S. Supreme Court refused in a 5–4 vote to block the law. The law bars abortions after six weeks, has no exceptions for rape or incest, and has only a narrow exception for the health of the mother. Further, the law bars state officials from enforcing the law, instead deputizing private citizens who may bring a $10,000 lawsuit (plus legal fees) against anyone they suspect of performing or “aiding and abetting” an abortion, making the law more difficult to challenge in court. [110][181][182][183][224]
Admitting privileges and surgical center standards laws
These laws require that doctors who perform abortions have admitting privileges in local hospitals, and these laws require abortion clinics to have the same building standards as ambulatory surgical centers. Despite an 11-hour filibuster from State Senator Wendy Davis, the Texas legislature passed a law in 2013 that added admitting privileges and surgical center requirements. The number of clinics providing abortion services fell from 42 to 19 over the next two years. On June 27, 2016, the U.S. Supreme Court struck down the Texas law. Writing for the majority, Justice Stephen Breyer said: “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes… each violates the Federal Constitution.” A similar law passed in Arkansas in 2015 requires abortion providers using pills to induce abortion in the first nine weeks of pregnancy (medication abortions) to have admitting privileges at local hospitals. On June 29, 2020, in a 5–4 ruling, the Supreme Court struck down a Louisiana admitting privilege law similar to the Texas law struck down in 2016. [111][112][167][185][192]
Trigger laws
These laws are abortion bans that were written to stop all or nearly all abortions if Roe v. Wade were overturned (as it was in June 2022). During the 2018 midterm elections, voters in Alabama and West Virginia voted in favor of constitutional amendments that would restrict access to abortion if Roe v. Wade were to be overturned by the Supreme Court. As of Apr. 1, 2019, six states had trigger laws that would ban all or nearly all abortions and an additional five states had trigger laws that were blocked by courts but could be put in effect when Roe v. Wade was overturned in June 2022. [206][207][209][229]
Roe v. Wade protection laws
This type of law codifies the right to abortion within the state constitution or legal code and are meant to be a state-level protection against Roe v. Wade being overturned by the U.S. Supreme Court. In 2017, Oregon enacted the Reproductive Health Equity Act that would keep abortion legal even if the Supreme Court overturned Roe v. Wade (as it did in June 2022). [209][210][229]
Laws designed to challenge Roe v. Wade in court
These laws were passed by several states in 2019 and typically combined six-week bans with other restrictive measures such as allowing no exceptions for rape or incest and including felony penalties for doctors who perform abortions. Alabama passed the most restrictive of these laws to date on May 16, 2019. Alabama State Representative Terri Collins (R) stated, “This bill is about challenging Roe v. Wade and protecting the lives of the unborn, because an unborn baby is a person who deserves love and protection.” Elizabeth Nash, MPP, Senior States Issue Manager at the Guttmacher Institute, stated, “There’s a real momentum around banning abortion at the state level and it’s stemming from the shift in the U.S. Supreme Court” with the addition of conservative Associate Justices Neil Gorsuch and Brett Kavanaugh. These measures proved successful when Roe v. Wade was overturned in June 2022. [211][212][213][214][215]
COVID-19 (coronavirus) restrictions
Pandemic restrictions were put in place by at least seven states by Apr. 9, 2020, including Alabama, Indiana, Iowa, Mississippi, Ohio, Oklahoma, and Texas. Each state listed abortion as a nonessential medical procedure during the COVID-19 pandemic, which banned abortion. The states contend they were freeing up medical personnel to deal with the pandemic, while abortions rights supporters argued that the states were already hostile to abortion rights and were using the pandemic as an excuse to enact a ban that could last beyond the pandemic. Federal judges blocked the bans at least in part in most of the states. [217]
Civil lawsuit abortion restrictions
This type of law was first put into place in Texas. The Texas Heartbeat Act made performing abortions illegal if a doctor could detect a “fetal heartbeat,” or around six weeks. While the law is technically a “fetal heartbeat law,” the enforcement of the law is left to private citizens who may sue anyone who helps someone obtain an abortion from doctors to Uber drivers. The law was upheld by the US Supreme Court in Dec. 2021. Other states have since copied Texas’ law, including Idaho and Oklahoma, and at least ten other states had such laws under consideration. [230][231][232][233]
Protections against civil lawsuit abortion restrictions
In anticipation of Roe v. Wade being overturned by the Supreme Court, some states enacted laws that would protect health care providers and those seeking abortions from civil lawsuits started in another state. The laws were passed because some states authorized civil action against anyone seeking an abortion or anyone aiding a person seeking an abortion, even in another state. California, Connecticut, and Washington had passed such laws as of June 24, 2022. [276]
Medication abortion restrictions
After Roe v. Wade was overturned in 2022, many legislators and activists turned their attentions to restricting abortion medications in states where abortion is not already completely banned or where an abortion ban is being challenged in court. Wyoming became the first state to completely ban the use of drugs for abortions (the state’s complete abortion ban has been in court) on Mar. 17, 2023. [291]
“Abortion trafficking” restrictions
Idaho became the first state to enact an “abortion trafficking” law (H.B. 242) on Apr. 5, 2023. The law states an abortion trafficker is “an adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion…or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.” Idaho’s law allows for the “any female upon whom an abortion has been attempted or performed, the father of the preborn child, a grandparent of the preborn child, a sibling of the preborn child, or an aunt or uncle of the preborn child” to sue for damages from the medical professionals for “not less than twenty thousand dollars ($20,000),” as well as legal and attorney’s fees. [294]
Roe v. Wade in 2022
On May 2, 2022, a U.S. Supreme Court first draft majority opinion written by Justice Samuel Alito was leaked to and verified by Politico. The draft indicated the court would overturn Roe v. Wade and Planned Parenthood v. Casey. Alito wrote, “Roe was egregiously wrong from the start....The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” Justice Alito indicated the decisions to allow, regulate, or ban abortion lies with individual states. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were reported to have voted with Alito to overturn Roe and Casey, while Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan were writing dissents. How Chief Justice John Roberts would vote was unclear at the time of the leak. [227][228]
On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in a 6–3 decision in Dobbs v. Jackson Women’s Health Organization, eliminating the federal constitutional right to abortion. Justice Samuel Alito wrote the majority opinion (the final copy of which was similar to the draft leaked in May), and was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney. Chief Justice John Roberts did not join the majority, but wrote a concurring opinion that would have upheld Mississippi’s 15-week ban, but would not have overturned Roe v. Wade. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, writing: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” [273][274][275]