ABORTION
To 1800
Records of abortions exist from throughout the American colonies in the seventeenth and eighteenth centuries. A variety of herbs and other plant products, including tansy, savin, pennyroyal, seneca snakeroot, and rue were used as abortifacients, some available from physicians but many attainable through herb gardens. Historians have had difficulty determining which were effective, which were not, and which were fatal to the mother, but they conclude that many of the concoctions taken were poisonous. Some have been determined so toxic it seems unlikely that women ingested them voluntarily, unless attempting suicide. It is possible that another person—often the man who impregnated her—would persuade the woman to ingest it. However, intense reactions to medication were viewed as proof of effectiveness, so vomiting and blistering were considered necessary side effects.
Because abortions were often performed at home and detailed records were rare, it is difficult to make precise estimations of abortion rates. However, it appears that rates in the colonial era were relatively low. Surgical abortions were rare. Lack of medical knowledge, particularly regarding infection, almost guaranteed the death of the mother if surgery were performed. Cases of infanticide were more common than surgical abortions, as pregnancies might be hidden until term under loose clothing and infanticide would at least protect the life of the mother.
The tendency toward abortion depended largely on community attitudes toward nonmarital pregnancy and childbearing in general, but it was also closely tied to economics. In a developing colonial society with a land-based economy, children were generally welcomed. Economic desperation was comparatively rare, resulting in relatively low rates of abortion and infanticide. In the case of non-marital pregnancy, social pressure to name the father and demands on him to pay support eased the burden on women of even the lowest means. Paternity suits were common, the vast majority of which ended in financial support or marriage or both. The rates of premarital pregnancy in the colonies increased dramatically in the late eighteenth century, with up to 30 percent of births occurring before nine months of marriage. There was generally much more pressure on men to take responsibility for pregnancy than chastisement of women for becoming pregnant.
Conception and "Quickening"
New scientific notions of pregnancy and fetal development arose during the Age of Enlightenment as scientists and religious leaders debated the origins of life. Calvinists and Anglicans argued against abortion, citing numerous biblical passages stating that human life begins at conception. But the battle lines were not drawn simply between religion and science, as scientists disagreed among themselves about the origins of human life. Anton van Leewenhoek, famous for his development of the microscope, argued in the late seventeenth century that an entire human was contained in each male sperm, and was simply implanted in a woman. Other scientists, concerned about the waste of human lives if that held true, argued that an entire human life existed in a woman's egg, and was simply "activated" by male sperm.
Some historians have argued that until the mid-nineteenth century, human life was widely understood to begin at "quickening," the moment when a pregnant woman could first feel the fetus move—generally in the late fourth or early fifth month of pregnancy. Colonial common law instituted punishment for abortion only after quickening. Evidence shows that the scientific community, the religious community, and the community at large all believed that human life in some form began before quickening, but under common law, abortions before quickening were legal. After quickening, however, the fetus—although by no means "viable" (able to survive outside the uterus)—was considered a separate being. Until quickening, the best evidence of pregnancy was the absence of menses, which could have been a symptom of various other conditions. Until the mid-nineteenth century, women were often provided with abortifacients to remove a "blockage," and once menses resumed, she was considered treated. The cause of the blockage was not an issue of legal concern.
Women often had access to abortifacient plant products and the knowledge necessary to use them to "resume menses." Once experiencing quickening, however, she was more or less obligated to carry the fetus to term. Quickening offered better proof of pregnancy, and usually marked a pivotal point after which terminating a pregnancy was unquestionably more dangerous. Until the early nineteenth century, the power of deciding to terminate an early pregnancy essentially lay with the woman. However, by the late colonial period, others were becoming increasingly involved in the practice, as physicians and apothecaries were marketing and selling abortifacients. Even under the regulation of "experts," they were often deadly.
Restrictions on Abortion
The first legal restrictions on abortion in the United States were aimed at the sale of abortifacients. State laws of the 1820s and 1830s listed abortifacients as poisons and made their sale illegal. In some states, laws also regulated practitioners who performed surgical abortions. All of these laws were intended to protect the life of the mother, and domestic use of abortifacients before quickening was not a crime. By 1840, ten of the nation's twenty-six states had passed abortion regulations.
Widespread attempts at criminalization of abortion began in the 1850s. The American Medical Association (AMA), founded in 1847, played a major role here. For a number of reasons, its members promoted legislation to restrict abortion in various states. The AMA reflected a trend in the field of medicine that valued accreditation and expertise. Members of the AMA attacked physicians of an older generation, as well as homeopaths and midwives, as ill-trained and incompetent, and in its attempt to improve medicine it took control of the practice of abortion. Many of the new generation of physicians also viewed themselves as moral leaders, and in their crusades aimed at preserving and protecting human life, they attacked abortion on moral grounds. One element of this crusade lessened the significance of quickening, considering it simply one stage in fetal development. This laid the groundwork for prohibiting abortion at any stage.
To some extent, abortion regulation through the mid-nineteenth century might be considered in the larger context of social reform movements in America. However, in later decades the anti-abortion crusades reflected the increasing influence of the Victorian Era. Then, pregnancy—or at least illicit pregnancy—was considered a woman's punishment for immoral behavior. Abortion would allow a woman to go unpunished. Even access to methods to prevent such a pregnancy would facilitate such immoral behavior. A result was the passage of legislation to prohibit the practice of abortion and the sale and distribution of contraceptives and contraceptive information. The Comstock Law of 1873—named for the purity crusader Anthony Comstock—categorized abortion and birth control as obscenity, prohibiting them under federal anti-obscenity legislation.
Various states also criminalized abortion, except for cases in which the mother's life was endangered by pregnancy or childbirth. This gave physicians the authority to determine when an abortion could be permitted. In addition, state regulations prohibiting the sale or distribution of abortifacients were reworked to allow physicians to prescribe them.
In many cases, middle-and upper-class women who had personal physicians maintained comparatively easy access to abortion. However, abortion rates increased among the poor and ethnic minorities. By midcentury, national concerns over shifting demographics drew attention to birth rates among the "proper stock" as opposed to those among the "lesser stock." The growing trend among white middle-and upper-class women to seek abortions was an influential factor in criminalizing the procedure. Mass immigration resulted in a growing working class that was perceived as a threat to the dominant Anglo-Protestant culture. Many physicians commonly conducted abortions among the poor and minorities, some publicly declaring that white Protestant women should have more children.
Abortion and Women's Roles
The development of anti-abortion legislation not only reflected ideas of race and class, but also affected gender roles. Before the mid-nineteenth century, women held a stronger position in realm of pregnancy, childbearing, and abortion than afterward. Childbirth took place at home, often with the assistance of a midwife; pregnant women were looked after by other women; and individuals had access to natural herbs that were known abortifacients. In addition, only a pregnant woman knew when quickening took place. The devaluation of quickening by the medical community had already weakened a woman's authority in her own pregnancy. Criminalizing abortion, except under a doctor's recommendation, and abortifacients without a doctor's prescription, further weakened her authority.
Anti-abortion movements generally grew when women demanded more rights. From the mid-to the late nineteenth century, public condemnation of abortion paralleled the women's movement for political rights. Fears that women would forsake their proper social roles and the responsibility of motherhood if they had the right to abortion helped to shape the debate, and ultimately the success, of anti-abortion legislation. Equal opportunity in politics and in higher education appeared to reduce family size and some hoped that the prohibition of abortion and birth control might offset this trend. At the turn of the twentieth century, the women's movement included new demands for sexual freedom, and anti-abortion activists worked to limit abortions. Although widely criminalized, physicians still performed some abortions and illegal abortions were common. The separation of sexuality and procreation allowed greater sexual freedom for women, spurring new attacks on abortion.
Abortion and Contraception
In the 1910s, a powerful birth control movement took hold in America. Leaders of the movement, particularly Margaret Sanger, did not equate birth control with abortion. Rather, they argued that legalizing contraceptives would reduce abortion rates. Public opinion still accepted early-term abortions, and abortion was often the preferred method of birth control. With little access to contraceptives because of the Comstock Law, couples had few choices. Proponents of legal contraceptives reported graphic details of numerous self-induced abortions performed by desperate women, who often died as a result.
Clinics were established to provide contraceptives and contraceptive information. Medical professionals who opened clinics bypassed Comstock laws that barred contraceptives and contraceptive information from importation and from the U.S. mails. Critics feared that such information encouraged "free sex" among single women, when in fact it was primarily intended for married working-class couples who had no access to personal physicians. Critics of abortion similarly feared that single women were having abortions to facilitate an uninhibited sexual lifestyle. In fact, most women having abortions were married. Working-class women generally had children early, ending later pregnancies through abortion. Upper-class women generally delayed childbearing and often ended early pregnancies through abortion. In either case, they saw it as a form of birth control, although birth control advocates drew clear distinctions between contraception and abortion.
At first glance, the criminalization of abortion appeared to have a significant effect on abortion rates. In the mid-nineteenth century, some records show that as many as one out of five or six pregnancies ended in abortion, while some report that in 1900 only one in twenty did. However, the fact that abortions were a crime made it less likely that women would report them. Drawing from case reports of hospital personnel who treated women bleeding as the result of apparent abortion, scholars estimate as many as 2 million abortions per year at the end of the nineteenth century. One doctor estimated between six to ten thousand abortions were performed (many by the women themselves) in 1904 in Chicago alone. Because of criminalization, and because the abortion issue has been so politicized, it is difficult to determine accurate abortion rates. However, it is clear that criminalization did not prevent it.
The birth control movement's eventual success was linked to its alliance with the American Medical Association, which—as the movement gained strength—began to support the legalization of contraceptives. Sanger and the AMA worked hand in hand into the 1930s in efforts to condone birth control and to secure legislation to protect doctors from prosecution for prescribing contraceptives. Again, physicians gave themselves control of the distribution of contraceptives, with the support of the courts and legislative bodies. In 1936, the AMA officially abandoned its official opposition to birth control.
Black Market Abortions
The Great Depression of the 1930s created an environment in which birth control became an acceptable response to social ills because more families were economically desperate and unable to care for additional children. At the same time, however, the number of abortions performed was on the rise—so quickly that many considered it an epidemic. Scholars generally estimate that more than 500,000 took place each year in the United States during the depression. The cost of a "black market" abortion was usually under seventy-five dollars, far below the cost of feeding another child. In addition, women often lost their jobs to men during the depression, and a pregnant woman was almost certain to lose her job.
A few doctors began to support publicly the repeal of anti-abortion laws during the 1930s. However, the opposition was strong. First, Pope Pius XI's 1930 encyclical, Casti Connubii, pronounced that a developing fetus had a soul. Although America was not a Catholic nation, its largest denomination by then was Roman Catholicism, and the issue of abortion had taken on a new character in the international religious-political realm. The Soviet Union had legalized abortion in the 1920s and the procedure was viewed as tightly tied to a brand of socialist feminism in western Europe. Any connection between feminism and socialism that was tied to abortion would force legalization to confront considerable obstacles in the United States.
The demands on physicians to perform abortions were great and many received additional training in the procedure. The procedure most often used was dilation and curettage, but the injection of potassium soap solution was common by the 1930s. Physicians were legally protected as they were granted the right to conduct therapeutic abortions. Physician-abortionists were considered specialists in the medical community and general practitioners referred their patients to them. The profession officially condemned abortion, but doctors were widely involved, if not directly, then through making referrals. In essence, they could ensure their patients had access to abortion without actually performing them.
To perform an abortion except with the intent to save the life of the mother meant possible arrest. Physician-abortionists who devoted their practice exclusively to abortion risked police raids and prosecution. Raids were especially common in the 1940s and 1950s and served to expose publicly abortionists and their patients. Patients were commonly interrogated in police stations and courtrooms. Police and prosecutors went after patients rather than the referring physicians, who possessed more incriminating evidence than the women did. Because of the raids, many hospitals stopped conducting therapeutic abortions. Advances in medicine, particularly in the development of antibiotics and antiseptics, made hospitals the safest and cleanest places to have an abortion. However, hospital administrators were unwilling to face the publicity resulting from continual raids on clinics and arrests of physicians.
Medical advances also affected the ways in which the fetus was perceived. Imaging techniques allowed physicians to focus on the fetus as a developing human and they increasingly considered the uterus as the space in which the fetus developed. In the 1950s, a culture of family and children encouraged women to embrace motherhood and they were chastised for considering abortion. Other medical advances made pregnancy-related illnesses, complications, and deaths comparatively rare. Therefore, hospitals became less likely to offer therapeutic abortions.
In addition, improvements were made in sterilization procedures. In the 1950s, approximately half of the nation's hospitals offered women abortions if they agreed to simultaneous sterilization. Hospitals established therapeutic abortion committees not only to develop such regulations, but to decide in individual cases when an abortion would be permitted.
Calls for Reform and Repeal
In the mid-1950s, a small group of physicians and public health workers began a movement to reform abortion laws. They had seen the disastrous effects of criminalization on women and the medical profession that had developed in recent decades. In 1955, Planned Parenthood organized a small conference of health care professionals to organize against the existing laws. But they did not gain the momentum necessary to overturn legislation until the birth of the women's movement in the 1960s. An integral part of that movement was the demand for reproductive rights. The demand began at the grassroots level with one of the most influential organizations, Citizens for Humane Abortion Laws, founded in 1962 in California. That same year, Sherri Finkbine, a television celebrity, attracted the nation's attention when she traveled to Sweden to have an abortion after finding out that she had taken a drug containing thalidomide early in her pregnancy. In 1961, researchers discovered that thalidomide—which was commonly prescribed to pregnant women to combat sleeplessness and morning sickness—caused severe birth defects, primarily the stunting of fetal limb development.
In Griswoldv. Connecticut (1965), the U.S. Supreme Court ruled in favor of Planned Parenthood staffers who had violated Connecticut state law in dispensing a contraceptive device to a married woman. The Court ruled on the grounds that their 1961 convictions were violations of the right to privacy. The case brought national attention to birth control laws that were considered repressive, and the right-to-privacy decision paved the way for privacy considerations in the issue of abortion. The public chastisement of women caught during clinic raids in the 1950s was often claimed to violate the right to privacy, but there was no strong legal precedent to turn to in those cases. The year 1966 marked the founding of the National Organization for Women (NOW), which would strengthen the attack on abortion laws. By the 1960s, the focus of abortion rights activists was shifting from a call for reform to a call for repeal of anti-abortion laws, and various women's groups addressed abortion at the national level. In 1969, abortion rights leaders held the first National Conference on Abortion Laws and formed the National Association for Repeal of Abortion Laws (NARAL). However, grassroots organizations remained instrumental as abortion was prohibited at the state level, and although banned in every state, it was regulated on different terms.
The landmark case in abortion history was Roe v. Wade (1973). In that case (which was supported by other cases), a twenty-three-year-old pregnant woman challenged Texas's abortion law, which the Supreme Court ultimately found unconstitutional. The decision, written by Justice Harry Blackmun and based on the residual right to privacy, overturned numerous statutes that had been in place for more than one hundred years. Restrictions on abortions during the first trimester of pregnancy were lifted and abortions in the second trimester were allowed with few restrictions. States were given the right to intervene during the second and third trimesters to protect the life of the woman and the potential life of the fetus.
The reaction to Roe v. Wade was swift and far-reaching. As a result of the case, NARAL changed its name to the National Abortion Rights Action League, preparing for opposition. The Catholic Church quickly professed its opposition and fundamentalist Protestants
hastened their efforts to support a pro-life movement. In 1977, Congress prohibited the use of Medicaid funds for abortion except for therapeutic reasons, and in a few other cases. The religious right gained political momentum with the election of conservatives to Congress and Ronald Reagan and George Bush Sr. to the presidency during the 1980s. This resulted in the creation of an abortion "litmus test" for Supreme Court nominees, who were considered on the basis of their stand on abortion, regardless of their experience or positions on other issues. In Webster v. Reproductive Health Services (1989) the Supreme Court limited the scope of Roe v. Wade, and in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) it reaffirmed abortion rights while permitting further restrictions.
The 1990s saw a rise in extreme measures on the pro-life side, including the harassment of women entering clinics, the bombing of clinics, and attacks on physicians known to perform abortions. In the second half of the decade, Congress repeatedly passed a bill that would ban "partial-birth abortion," but President William Jefferson Clinton vetoed it.
Partial-birth abortions are conducted in the third trimester of pregnancy when a fetus is viable, and involve the dilation of the cervix and extraction of the fetus while puncturing the skull. Although very rare, accounting for 0.04 percent of all abortions, the procedure was used extensively in the public debate by anti-abortion activists. At the end of the decade, extremists continued to attract attention to the issue and the litmus test was predicted to be a factor under George W. Bush's administration. But the nation saw groups such as right-to-life feminists calling for better options for pregnant women and rising to provide alternative solutions such as better wages for women, pregnancy and child-care employment leave, and better support for young, unwed mothers. Recent studies have shown a decrease in abortion rates and an increase in births out of marriage, demonstrating a significant shift in social mores.
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