What Foreign Journalists Should Know About the History of Abortion in the United States

People across the United States reacted with anger and horror in response to the news that the Supreme Court had published a ruling overturning Roe v. Wade, the 1973 landmark decision that once protected a person's right to choose reproductive health care without excessive government restriction.

The news the Supreme Court overturned Roe was not a surprise coming more than a month after a leaked draft opinion indicated the Court's ruling on Dobbs v. Jackson Women's Health Organization would move to strike it down, which it did in a 5-4 decision.

Writing the majority opinion, Associate Justice Samuel Alito said that the United States Constitution "makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment."

This argument was harshly opposed by Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who comprise the Court's liberal wing.

They charged that the decision to overturn Roe and its sister ruling Planned Parenthood v. Casey is indicative of long-held political animus, writing that the majority made the call "because it has always despised them, and now it has the votes to discard them."

In their dissent, they added that the majority "would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom," adding that today's Court "does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life" and is keen to empower states to force women "to bring a pregnancy to term, even at the steepest personal and familial costs.”

Last month, Senate Democrats attempted to codify Roe's protections into law by pushing for a vote on the Women’s Health Protection Act, but Republicans blocked the legislation.

All of these developments are a lot to unpack for any journalist, most of all foreign correspondents who might lack knowledge and insight about the history of abortion and reproductive health care in the United States.

Here’s what you need to know to inform your own reporting – and to write sensitively.

WAS ABORTION ALWAYS SUCH A CONTROVERSIAL TOPIC?

No.

Abortions were not a contentious topic in the United States until the 1840s. At the time, American laws reflected British common law, and the legal system used what is known as the “quickening doctrine” to decide on abortion’s legality.

“Quickening” referred to the moment when fetal moments could first be detected, typically about 22 to 24 weeks into a pregnancy. The idea of life beginning at conception did not exist; fetuses were only considered potential lives until quickening.

Although abortions post-quickening were illegal, they were only considered a misdemeanor. According to historians, these lives were intended to protect the life and health of pregnant women because abortions performed at later stages required the use of instruments that heightened the risk of death moreso than the herbs and medications that were abortion-inducing methods before quickening.

In those days, the medical profession was largely unregulated and abortions and reproductive health care was provided not by the white men who could come to dominate the profession after the American Civil War but by skilled midwives, nurses, and other unlicensed women’s health care providers.

In 1847, the American Medical Association (AMA) formed and argued that doctors knew more about women’s bodies than the midwives and nurses – most of whom were Black and Indigenous women – who at the time dominated reproductive health care. The organization pushed states to pass anti-abortion legislation in a bid to control the market, and the strategy worked: Every state prohibited abortion by the early 1900s.

Planned Parenthood, the nonprofit organization that provides reproductive health care in the United States and globally, notes that the influence of “white supremacy and patriarchal strongholds” on abortion bans is rather evident when we examine the history of Black women in the United States, who were enslaved at this time:

“Although abortion was legal throughout the country until after the Civil War, there were different rules for enslaved Black women than for white women. Enslaved Black women were valuable property. They didn’t have the freedom to control their bodies, and slave owners prohibited them from having abortions.

Under the law, white men owned Black women’s bodies. So, enslaved women who had access to emmenagogic herbs — plants used to stimulate menstruation — had to make remedies to induce their own abortions in secret.

When slavery was abolished in 1865, the societal control over Black women’s bodies remained. Today, our white supremacist culture judges Black women for both having children and for having abortions — besetting them with blame for virtually any decision they make and any form of agency they take about their bodies.”

White women with means were largely unaffected by these abortion bans: They could always afford to break the law whereas poor women – especially Black women – could not.

SO WHAT CHANGED?

Over the next several decades, the impact of abortion bans were felt nationwide.

According to the Guttmacher Institute, a pro-abortion rights research organization that works to study, educate, and advance sexual and reproductive health and rights, there were between 200,000 and 1.2 million abortions per year in the 1950s and 1960s. A black market flourished with many medical doctors providing medication and surgical abortions but the lack of regulation ensured that the mere act of seeking an abortion was often dangerous and deadly. Many women died, often the victims of medical opportunists.

These developments catapulted abortion into the national spotlight. It was evident that the United States had a public health crisis on its hands and several states began to loosen their abortion laws. Colorado was the first, in 1967. 11 states changed their laws by the end of the 1960s.

Then came Roe v. Wade.

Norma McCorvey, later identified as “Jane Roe” in court documents to shield her identity, became pregnant in Texas in 1969. She wanted an abortion, which was forbidden under Texas law except in cases where the mother’s life was at risk. She sued Henry Wade, who at the time served as district attorney of Dallas County, on the grounds that the abortion ban was unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favor. The parties appealed this ruling to the Supreme Court, which ultimately ruled in McCorvey’s favor by a 7-2 vote, rendering abortions bans across the United States unconstitutional.

The Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy” that protects a pregnant person’s right to an abortion. Notably, the ruling set up a dynamic of three trimesters during pregnancy, which allowed restrictions on abortion in the third trimester. The Court would later uphold its ruling in 1992’s Planned Parenthood v. Casey, though that ruling scuttled the trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy.

The Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

THE ANTI-ABORTION MOVEMENT

The anti-abortion movement organized after Roe and this marked the time when the phrases “pro-life” and “pro-choice” truly became a part of public parlance.

According to Planned Parenthood:

“Generally, people who identify as pro-choice believe that everyone has the basic human right to decide when and whether to have children. When you say you’re pro-choice you’re telling people that you believe it’s OK for them to have the ability to choose abortion as an option for an unplanned pregnancy — even if you wouldn’t choose abortion for yourself.

People who oppose abortion often call themselves  pro-life. However, the only life many of them are concerned with is the life of the fertilized egg, embryo, or fetus. They are much less concerned about the life of women who have unintended pregnancies or the welfare of children after they’re born. In fact, many people who call themselves “pro-life” support capital punishment (AKA the death penalty) and oppose child welfare legislation.

The black-and-white labels of “pro-life” and “pro-choice” pit people against each other, as if they’re on two different teams. But we agree more than we disagree: A majority of Americans believe abortion should be legal, and they support the right to access abortion.”

Planned Parenthood, in an effort to be more clear and inclusive, uses the phrases “pro-reproductive rights” and “anti-abortion” to describe people’s beliefs about abortion access.

Evangelical Christians, the United States’ single largest religious group, joined the anti-abortion movement in the late 1970s and early 1980s and became explicitly aligned with the Republican Party, which announced its opposition to abortion as part of its platform in 1976.

The platform reads, in part:

“The question of abortion is one of the most difficult and controversial of our time. It is undoubtedly a moral and personal issue but it also involves complex questions relating to medical science and criminal justice. There are those in our Party who favor complete support for the Supreme Court decision which permits abortion on demand. There are others who share sincere convictions that the Supreme Court's decision must be changed by a constitutional amendment prohibiting all abortions. Others have yet to take a position, or they have assumed a stance somewhere in between polar positions.

We protest the Supreme Court's intrusion into the family structure through its denial of the parents' obligation and right to guide their minor children. The Republican Party favors a continuance of the public dialogue on abortion and supports the efforts of those who seek enactment of a constitutional amendment to restore protection of the right to life for unborn children.”

The anti-abortion movement wielded significant political power thereafter, blossoming under Ronald Reagan, the nation’s 40th president and a staunch anti-abortion advocate. Republican politicians have made their anti-abortion stances a signature part of their respective platforms ever since, ensuring that they have a reliable constituency. Abortion became a topic infamous for attracting “single issue voters,” a term used to describe people who may make voting decisions based on the candidates' stance on a single issue.

In 2016, Donald Trump, then the Republican nominee for the presidency, claimed there must be "punishment" for women who get abortions.

Trump, speaking during a town hall, claimed to be pro-life and opined there should be "some form of punishment" for getting an abortion, suggesting that a ban should go forward even if it means that people have to "go to illegal places" to get them.

While in office, Trump had the opportunity to appoint three conservative justices who had gone on record opposing abortion to the Supreme Court, raising concerns among Democrats that they would threaten the Roe v. Wade precedent.

While the largely conservative court ultimately voted to uphold abortion rights in June Medical Services, LLC v. Russo (2020), in which the Court ruled that a Louisiana state law placing hospital-admission requirements on abortion clinics doctors was unconstitutional, fears that Roe would ultimately fall were not unfounded.

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