Abortion in the Illegal Era

In his opinion overturning Roe v. Wade , Justice Samuel Alito references the series of laws criminalizing abortion passed by states in the 19th century.¹ Before these laws, however, abortion was legal; women could ask to have their menses “restored” before “quickening,” or when they could feel the fetus moving.² Morever, even after criminalization, women still sought out abortions either by finding willing physicians or by self-inducing abortions with abortifacient drugs or other methods.³ This article will dive a little deeper into the practice of abortion during this illegal period from the first antiabortion laws in the mid-19th century to the legalization of abortion with Roe v. Wade in 1973.

Abortion During Mid-19th Century Criminalization

After years of legal abortions, Connecticut became the first state to pass legislation criminalizing the prctice in 1821.⁴ In the following decades, an increasing number of states passed similar antiabortion legislation, particularly in the period from 1860-1880.⁵ In contrast to the most recent laws restricting abortion in the 21st century, laws in the mid-19th century were motivated by concern for the mother rather than the fetus. Common arguments included a need to protect women from dangerous abortifacient drugs and illegitimate abortion practitioners; a growing fear that women (i.e., white women) were shirking their duties as mothers through abortion and concerns about rpeserving the chastity of these women also inspired many of these abortion laws.^6,7,8

Despite this crackdown on abortion, women still sought out and had abortions. The most common method of abortion in the mid-19th century was taking abortifacient drugs, which had been used for years prior. These drugs derived from plants and herbs, such as Savin (derived from juniper), pennyroyal, tansy, ergot, and cotton root (used by enslaved women) among others. Newspapers advertised abortifacients and women could obtain them from their physicians by the 1840s; if the drugs did not work, women could then turn to abortionists for a procedure.⁹

The role of the physician within abortion history and policy is a complicated and conflicting one. Starting in the late 1850s, the nascent American Medical Association (AMA) launched an initial campaign to criminalize abortion at every stage of pregnancy.¹⁰ They targeted the “quickening” principles that had guided abortion practices, in effect wresting control over medical knowledge away from women. However, these new laws influenced by the physicians’ campaign excepted therapeutic abortions if the pregnancy threatened the mother’s life3. During this period, antiabortion became a means for “regular” physicians to attain professional power within the medical arena.¹¹ This relationship between physician and abortion would change during the first half of the 20th century.

Abortion from 1900 to Roe

Towards the end of the 19th century and in the early decades of the 20th century, abortion remained a widespread practice peformed in women’s home or doctors’ and midwives’ offices. From 1890 to 1920, physicians renewed their antiabortion campaign, which saw the early beginnings of physicians as the enforcers of antiabortion policy.¹² However, in the subsequent decades, particularly during the Great Depression, physicians displayed a much more sympathetic attitude toward abortion; while they might not have necessarily supported abortion, many physicians during the 1930s were willing to perform them.¹³

The 1940s and 1950s brought a harsh crackdown on abortions, but this time, physicians were targeted as well as women seeking abortions. This period was marked by changing hospital policies and police raids of doctors’ offices and women’s homes.¹⁴ Yet, still, women were determined to manage their fertility and get abortions. While some physicians stopped providing abortions, others continued their practices. However, because of increasing restrictions, women were often forced to seek riskier underground abortions. Horrified by accounts of women dying because of these unsafe, underground procedures, physicians began to push for abortion reform and a greater liberalization of the practice in the late 1950s.¹⁵ Challenges to antiabortion laws from both physicians and a growing feminist movement set the stage for Roe v. Wade, legalizing abortion in 1973.

Endnotes

1. Dobbs v. Jackson Women’s Health Organization, N.A., U.S. (2022), 23-24.

2. Rickie Solinger, Reproductive Politics: What Everyone Needs to Know (Oxford: Oxford University Press, 2013), 4-5.

3. Leslie Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (Berkeley: University of California Press, 1997), 16-20.

4. Supra note 2.

5. James Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (New York: Oxford University Press, 1978), 200-225.

6. Supra note 2.

7. Supra note 3.

8. Loretta Ross and Rickie Solinger, Reproductive Justice: An Introduction (Oakland: University of California Press, 2017), 23-25.

9. Supra note 3.

10. Supra note 5.

11. Supra note 3.

12. Supra note 5.

13. Supra note 3.

14. Lara Freidenfelds, The Myth of the Perfect Pregnancy (New York: Oxford University Press, 2020), 139-141.

15. Supra note 3.

16. Supra note 14.