As the Supreme Court considers Roe v. Wade, a look at how abortion became legal
For nearly a half-century, abortion has been a constitutional right in the United States. But this week, the U.S. Supreme Court hears arguments in a Mississippi case that directly challenges Roe v. Wade and subsequent decisions.
Those rulings consistently declared that a woman has a constitutional right to terminate a pregnancy in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb. But with that abortion right now in doubt, it's worth looking back at its history.
Abortion did not become illegal in most states until the mid to late 1800s. But by the 1960s, abortion, like childbirth, had become a safe procedure when performed by a doctor, and women were entering the workforce in ever larger numbers.
Still, being pregnant out of wedlock was seen as scandalous, and women increasingly sought out abortions, even though they were illegal. What's more, to be pregnant often meant that women's educations were stunted, as were their chances for getting a good job. Because of these phenomena, illegal abortion began to skyrocket and became a public health problem. Estimates of numbers each year ranged from 200,000 to over a million, a range that was so wide precisely because illegal procedures often went undocumented.
At the time, young women could see the perils for themselves. Anyone who lived in a college dormitory back then might well have seen one or more women carried out of the dorm hemorrhaging from a botched illegal abortion.
George Frampton clerked for Justice Harry Blackmun the year that his boss authored Roe v. Wade, and he remembers that until Roe, "those abortions had to be obtained undercover if you had a sympathetic doctor" and you were "wealthy enough." But most abortions were illegal and mainly took place "in backrooms by abortion quacks" using "crude tools" and "no hygiene."
By the early to mid-1960s, Frampton notes, thousands of women in large cities were arriving at hospitals, bleeding and often maimed.
One woman, in an interview with NPR, recalled "the excruciatingly painful [illegal] procedure," describing it as "the equivalent of having a hot poker stuck up your uterus and scraping the walls." She remembered that the attendant had to "hold her down on the table."
The result, says Frampton, was that by the mid-1960s, a reform movement had begun, aimed at decriminalizing abortion and treating it more like other medical procedures. Driving the reform movement were doctors, who were concerned about the effect that illegal abortions were having on women's health. Soon, the American Law Institute — a highly respected group of lawyers, judges and scholars — published a model abortion reform law supported by major medical groups, including the American Medical Association.
Many states then began to loosen their abortion restrictions. Four states legalized abortion, and a dozen or so adopted some form of the model law, which permitted abortion in cases of rape, incest and fetal abnormality, as well as to save the life or health of the mother.
By the early 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as Frampton observes, "it wasn't a big political or ideological issue at all."
In fact, the justices in 1973 were mainly establishment conservatives. Six were Republican appointees, including the court's only Catholic. And five were generally conservative, as defined at the time, including four appointed by President Richard Nixon. Ultimately, the court voted 7-to-2 that abortion is a private matter to be decided by a woman during the first two trimesters of her pregnancy.
That framework has remained in place ever since, with the court repeatedly upholding that standard. In 1992, it reiterated the framework yet again, though it said that states could enact some limited restrictions — for example, a 24-hour waiting period — as long as the restrictions didn't impose an "undue burden" on a woman's right to abortion.
Frampton says that the court established the viability framework because of the medical consensus that a fetus could not survive outside the womb until the last trimester. He explains that "the justices thought that this was going to dispose of the constitutional issues about abortion forever."
Although many had thought that fetal viability might change substantially, that has not happened. But in the years that followed, the backlash to the court's abortion decisions grew louder and louder, until the Republican Party, which had earlier supported Roe, officially abandoned it in 1984.
Looking at the politicization of the Supreme Court nomination and confirmation process in recent years, one can't help but wonder whether Roe played a part in that polarization. What does Frampton think?
"I'm afraid," he concedes, "that analysis is absolutely spot on. I think they [the justices] saw it as a very important landmark constitutional decision but had no idea that it would become so politicized and so much a subject of turmoil."
Just why is abortion such a controversial issue in the United States but not in so many other countries where abortion is now legal? Florida State University law professor Mary Ziegler, author of Abortion and the Law in America, points out that in many countries, the abortion question has been resolved through democratic means — in some countries by national referendum, in others by parliamentary votes and, in some, by the courts. In most of those countries, however, abortions, with some exceptions, must be performed earlier, by week 12, 15 or 18.
But — and it is a big but — in most of those countries, unlike in the U.S., national health insurance guarantees easy access to abortions.
Lastly, Ziegler observes, "there are a lot of people in the United States who have a stake in our polarized politics. ... It's a way to raise money. It's a way to get people out to the polls."
And it's striking, she adds, how little our politics resemble what most people say they want. Public opinion polls consistently show that large majorities of Americans support the right to abortion in all or most cases. A poll conducted last May by the Pew Research Center found 6 in 10 Americans say that abortion should be legal in all or most cases. And a Washington Post-ABC poll conducted last month found that Americans by a roughly 2-to-1 margin say the Supreme Court should uphold its landmark Roe v. Wade decision.
But an NPR poll conducted in 2019 shows just how complex — and even contradictory — opinions are about abortion. The poll found that 77% of Americans support Roe. But that figure dropped to 34% in the second trimester. Other polls had significantly higher support for second trimester abortions. A Reuters poll pegged the figure at 47% in 2021. And an Associated Press poll found that 49% of poll respondents supported legal abortion for anyone who wants one "for any reason," while 50% believed that this should not be the case. And 86% said they would support abortion at any time during a pregnancy to protect the life or health of the woman.
All this would seem to suggest that there is overwhelming support for abortion rights earlier in pregnancy, but less support later in pregnancy, and overwhelming support for abortions at any time to protect the life or, importantly, the health of the mother. That, however, is not where the abortion debate is in the 25 or so states that have enacted very strict anti-abortion laws, including outright bans, in hopes that the Supreme Court will overturn Roe.