When and why was abortion criminalized in the United States?

Since p. 4↵reproduction is a biological process, it is often perceived as timeless. But this process takes place within social contexts that shape and reshape its meaning, as ideas about sexuality, gender, race, class, and maternity change over time.

To begin with, for many decades after nationhood, abortion was legal in the various states and territories. A woman could legitimately ask a physician or a midwife to end her pregnancy, or “restore” her menstrual period, especially before “quickening,” that is, before she felt fetal movement, an event only the woman could verify. Connecticut, with a large Catholic population, was the first state to criminalize abortion, in 1821. In 1857 the newly organized American Medical Association launched a campaign to make abortion at any stage of pregnancy a crime, and by 1910 every state had anti-abortion laws except Kentucky, where the courts declared abortion illegal. Arguments in favor of criminalization included the need to protect women from using poisonous abortifacients and from practitioners without medical credentials. Advocates of criminalization also stressed society’s obligation to halt the declining birthrate among white Americans. And many stressed the need to protect the sanctity of motherhood and the chastity of white women; abortion, after all, supported the separation of sexual intercourse p. 5↵from reproduction. For many physicians and others, all of these concerns were generally more trenchant in the nineteenth century than the issue of fetal life. In any case, abortion was rarely prosecuted in states that had criminalized the procedure, especially before quickening.

Contrary to popular assumptions, no evidence exists for high rates of morbidity and mortality following abortion in the illegal era except in cases of self-induced abortion, a dangerous strategy typically used by the poorest women. In most localities, law enforcement officials generally did not arrest abortion practitioners unless they were accused of causing a death or unless pressed into action as part of an anti-crime crackdown. Illegal abortion remained very common across the criminal era, especially as ever-larger numbers of women entered the workforce and contraception was neither legal nor available. Some experts estimated that as many as 1 to 2 ­million abortions a year were performed in the United States in the decades before legalization. Today the number is about 1.2 million abortions per year.¹

How did urbanization and “moral reform” movements in the nineteenth century shape reproductive politics?

During the same period that abortion was criminalized, largely during the urbanizing, post–Civil War decades, many young women lived and worked without the protection of their families and with newfound freedoms. In cities, physicians, midwives, pharmacists, and others made contraception and abortion available. In this context, moral crusaders organized to stamp out sexual license, often relying on religious justification and, at the same time, advocating that each state regulate sexual and family matters.

In 1873, a leading New York moral reformer named Anthony Comstock convinced Congress to pass a law placing the United States Post Office in charge of finding and censoring all “obscene” material—which came to include information p. 6↵about contraception and abortion—passing through the mail. Ironically, the law turned the mail service, previously a ­symbol of democracy (because it facilitated the free flow of ideas and information) into a vehicle for corruption and a site of surveillance. To protect the social fabric, Congress called on the Post Office to reaffirm its role as a filter. As a result, the system of dissemination of information and materials moved underground. Women who had the means continued to buy books and devices illegally. Those without money had little choice. In 1885, the cost of a diaphragm, for example, equaled a week’s wages for a domestic servant or a factory worker.²

What impacts did immigration have on reproductive law and politics in the nineteenth and twentieth centuries?

This young domestic or factory worker was likely to be an immigrant in 1885, in a nation with the most demographically complex population in history. As immigration burgeoned at the end of the nineteenth century, Congress passed new laws governing immigration and naturalization, including legislation determining who would be allowed in, and once here, who could procreate with whom, and in the end who could become a US citizen. (Anti-miscegenation laws already outlawed procreation, cohabitation, and marriage between men and women of different races and provided severe punishment for violations.) For example, when Chinese men were encouraged to immigrate to build the transcontinental railroad, Chinese women were not allowed to join them, a policy that constituted an official effort to constrain the birth of Chinese or ethnically mixed American citizens. When the Chinese Exclusion Act of 1882 became law, less than 4 percent of the Chinese population in the United States was female; nearly sixty years later in 1940, the percentage had risen only to 30 percent.³

In 1924, the US Congress passed the Immigration Act (also known as the National Origins Act) in an effort to screen out “inferiors” and, as stated by the influential report of the p. 7↵Sub-Committee on Selective Immigration of the Eugenics Committee of the United States of America, “furnish us the best material for American citizenship and for the future upbuilding of the American race.” The act severely restricted the entry of Italians and other southern and eastern Europeans, reflecting which groups were deemed to reproduce worthy and valuable citizens and which were not. During the Great Depression, Mexican industrial and agricultural workers, long recruited to work in Midwest steel mills and the coal and crop fields of Michigan, California, and Texas, were now tagged as responsible for the Depression because Mexican women had “too many” children and the men took jobs from American workers. Mexicans were sent back to Mexico (“repatriated”) in massive numbers, including many who had been born in the United States. Early twenty-first-century politics of immigration, especially debates about whether the American-born children of undocumented immigrants should continue to qualify as citizens under the Fourteenth Amendment, reflects a long history of debate about which racial, ethnic, and national groups should be allowed to produce and reproduce American citizens. This history also reflects centuries-old conflict about the “complexion” of America.

What were anti-miscegenation and eugenic laws?

Like immigration laws, US anti-miscegenation laws, prohibiting sexual relations between individuals of different races, and eugenic laws, designed to regulate sex and reproduction to ensure a “high quality” population, focused on certain groups as targets of public intervention for the “public good.” For the century after emancipation, anti-miscegenation laws were enforced by whites in the American South who feared that mixed-race children exemplified the indeterminacy of “race,” including the meaning of “white.” Section 4189 of the Alabama Code, for example, read, “If any white person and any negro, or the descendant of any negro to the third ­generation p. 8↵inclusive . . . intermarry or live in adultery or fornicate with each other each of them must on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.” These laws were meant to keep the races separate and to protect the established meaning of “whiteness” in order to maintain the dominant system of racial control.

In the early decades of the twentieth century, eugenicists such as Madison Grant and Lothrop Stoddard became broadly influential, focusing on the project of reducing reproduction of those deemed “unfit.” In essence, many eugenicists were interested in curbing the demographically and politically complex America that would emerge if reproduction proceeded without regulation. The field of eugenics generally defined the “unfit” as nonwhites, mixed-race persons, immigrants, and poor and working-class whites, as well as people with handicaps and criminal records. A pseudo-science that became popular during a period of heightened racism and nativism, eugenics justified targeting millions of women of childbearing age. In 1927, leading proponents Paul Popenoe and Roswell Johnson claimed that based on intelligence test results (a newly invented instrument at the time), as many as 10 million Americans (out of a total population of 120 million) were unfit for reproduction. At the same time, eugenicists argued that economically secure white women produced better babies, future adult citizens fit for sustaining a democratic nation.

In 1907, Indiana became the first state to pass a eugenic ­sterilization law; by the mid-1920s, twenty-three states had ­followed suit, and by 1940, nearly 40,000 eugenically motivated sterilizations had been performed.⁴ Eventually, a number of these state laws were overturned, but not before the Supreme Court upheld the constitutionality of state sterilization laws and specifically approved the sterilization of one young, poor, physically healthy white woman, Carrie Buck, who became a national symbol of both the eugenics campaign against unfit reproduction and the nation’s interest in racial betterment. p. 9↵Carrie, the daughter of an indigent prostitute who the city authorities confined to an institution for the “feebleminded,” was sent to live with the family of a policeman. As a teenager, Carrie, a good student, told her foster family that she had been raped and was pregnant. Her guardian immediately had the girl declared feebleminded and sent her to the same institution that housed her mother. After Carrie gave birth, the authorities declared that “the rules of heredity” dictated that Carrie should be sterilized. Justice Oliver Wendell Holmes issued one of the court’s most infamous decisions when in 1927 he wrote for the majority in Buck v. Bell, “It is better for all the world, if instead of waiting to execute degenerate off-spring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles is enough.”

What access did women have in the past to voluntary sterilization?

Sterilization was not always a matter of coercion in the past. Women who wanted to end their childbearing and who had enough money to have a private physician might ask to be sterilized. In the first half of the twentieth century, a physician would generally agree to perform the procedure only if the woman met criteria recommended by the American College of Obstetricians and Gynecologists: the woman’s age was multiplied by the number of children she had. If the result was 120 or higher and if two doctors and a psychiatrist also approved, the woman could be sterilized These criteria remained in place until 1970 when Second Wave feminists successfully pressed for women’s right to decide these matters for themselves.

What do we know about women’s reproductive decisions in the face of legal and medical constraints?

Clearly, until the last third of the twentieth century, most women had little control over their bodies or their fertility. At p. 10↵the beginning of the nineteenth century, the average ­number of children born to white women, was 7.07; as the population urbanized, more and more women attempted, via homemade and commercial preparations or abortion services, to limit their fertility, despite the growing number of states that criminalized these practices. By 1850, the white birthrate was 5.42 and the black birthrate was 7.90. At the end of the nineteenth century, the white rate had fallen to 3.87 and the black rate to 6.56. These figures are remarkable as, during this period of reproductive decline, contraception and abortion were generally illegal, inaccessible, or both. Women who attempted to control their fertility were in danger of being exposed and possibly punished by law enforcement. Millions took that dangerous step, which variously mixed desperation and resistance. Conversely, many poor women resisted cultural control over their sexual and reproductive lives by having babies. Sometimes these women suffered punishment as well, such as being sent to correctional facilities for “wanton and wayward” females, having their babies taken away from them, being denied public assistance, expelled from public housing, and sterilized against their wishes.

What was the process of legalizing contraception?

Contraception was gradually legalized during the Great Depression, when economic devastation required limiting reproduction. In the first decades of the twentieth century, crucial efforts supporting legalization were made by ­activist women, many of whom were feminist socialists, and by Margaret Sanger, the founder of the American Birth Control League in 1921—an organization that evolved over several decades and was renamed Planned Parenthood in 1942—and Mary Ware Dennett, co-founder of the National Birth Control League in 1915. Several early court decisions were key to legalization of contraception, including Young Rubber Corporation v. C.I. Lee & Co., Inc. (1930) and United States v. One p. 11↵Package of Japanese Pessaries (1936) which together lifted federal bans on birth control and allowed many more women with ­private ­doctors to purchase contraceptive materials. In 1937, the American Medical Association cautiously endorsed birth control, but the Roosevelt administration would not touch the issue, fearful of being associated with the subject of sex and also unwilling to displease the Catholic Church. By 1940, with so many women in the labor force, over 70 percent of Americans approved of public health clinics dispensing contraceptives, and most states and cities no longer engaged in anti-contraceptive prosecutions.⁵

Five years after the birth control pill was marketed in 1960, the Supreme Court’s ruling in Griswold v. Connecticut, citing a constitutionally protected “privacy right,” struck down that state’s Comstock Law, the last extant, against dispensing contraceptive information and materials to married couples. In 1972, the Court’s Baird v. Eisenstadt decision validated the dispensation of contraceptives to unmarried couples.

How did “genocide” and sterilization abuse become matters of concern for women of color and their allies?

These Supreme Court decisions were handed down in the context of the emergence of a political culture favoring “reproductive choice” but also in the context of an emerging anti-welfare movement in the United States in which politicians and policy makers focused on strategies for reducing the childbearing of poor women. Tactics included state-mandated use and promotion of birth control and sterilization, policy targets that, together with other developments—including revelations about the infamous “Tuskeegee experiments,” which left African American men with syphilis untreated as a way of studying the ravages of the disease—stoked the suspicions of many African Americans who came to believe that birth control campaigns amounted to “genocide.”

Indeed, p. 12↵in the 1960s and 1970s, many women began to respond collectively to laws and policies governing their fertility, creating and joining with such organizations as Planned Parenthood, the National Welfare Rights Organization, the Committee to End Sterilization Abuse (CESA), the Committee for Abortion Rights and against Sterilization Abuse (CARASA), and many others. Women of color organizations often pulled strands from civil rights, welfare rights, and abortion rights movements to claim rights to reproductive dignity, including the right to motherhood, to reproductive health care, and to control over one’s own fertility.

Coerced sterilization became a central focus of this work. While sterilization had become the most common form of contraception for American women by the 1970s, poor women, and particularly African American, Puerto Rican, and Mexican American women, often found themselves targeted by formal and informal public policies and widespread attitudes among hospital personnel supporting coerced post-delivery sterilization. Sometimes doctors and nurses obtained “permission” for the operation while the woman was in labor. After Roe v. Wade, the federal government paid for the sterilizations (100,000 to 150,000 a year) of poor women but not for their abortions.⁶ Welfare officials told many poor women that only if they were sterilized could they keep their welfare benefits, and doctor-led sterilization campaigns emerged in major cities such as Los Angeles before the Department of Health, Education and Welfare issued guidelines in 1973 to prevent sterilization abuse.⁷ In 1974, federal district court judge Gerhart Gesell tightened the rules mandating that “federally assisted family planning sterilizations are permissible only with the voluntary, knowing, and uncoerced consent of individuals competent to give such consent.” Gesell also stipulated that the rules be written clearly and that a woman’s decision to be sterilized or not would have no impact on her eligibility for welfare.

Even after these guidelines were issued, government studies found that, for example, the Indian Health Service and p. 13↵other providers of reproductive health services for indigent women of color were not adhering to the rules. Doctors in these facilities typically argued that they were providing the most effective birth control for poor women and reducing the welfare burden at the same time, a two-pronged argument that denied reproductive rights to poor women in the 1970s, even as these rights were defined and legally granted to other women.

What were hospital abortion boards?

Before the legalization of abortion, many women with private doctors appeared before “abortion boards,” instituted in hospitals in the 1930s and 1940s and still functioning in many places into the 1960s. These boards were created for the purpose of hearing requests from women, often accompanied by their physicians, who petitioned a panel of psychiatrists, obstetricians, and other medical specialists for permission to terminate a pregnancy. Hospitals created standards for consent, and according to hospital reports, many institutions aimed to give permission to very few women, sometimes only if termination was accompanied by sterilization. In the 1950s and 1960s, a number of physicians whose essays about the work of these boards appeared in the American Journal of Obstetrics and Gynecology and other professional publications rarely addressed the issues of fetal life. Most typically, they wrote about the responsibility board members faced to protect and preserve the links between sexuality, femininity, marriage, and maternity. Most women who appeared before an abortion board were middle class and white, and they came with a statement of support from their personal physician. Still, many petitioners described the process of appearing before the board as having been frightening and humiliating, though in retrospect, one can observe that these venues did allow some women—for the first time—an opportunity, albeit constrained, to speak for themselves—­before strangers and authorities—about their need and desire to make reproductive decisions.

What p. 14factors stimulated the push to legalize abortion?

As the women’s rights movement established its agenda in the 1960s, many women began to organize and to speak ­publicly about reproductive rights, including abortion rights. At the same time, a rubella epidemic between 1962 and 1965 put many pregnant women at risk of giving birth to damaged babies; and a pregnant Arizona television personality, Sherri Finkbine, defied American legal and cultural constraints by traveling to Sweden, a country with more liberal access, in August 1962 to obtain an abortion after her doctor determined that she had inadvertently taken a medication containing Thalidomide, known to cause fetal damage.

These high-profile events had an effect on millions of ­working mothers, single women, women carrying damaged fetuses, emerging feminists, and others. In this era of vibrant rights claims, some feminist organizations typically associated abortion rights with individual autonomy, while others saw reproductive rights as protection against a history of reproductive exploitation and punishment, and focused on the right to be a mother as well as the right and the resources to access contraception and abortion.

Support for legal abortion was not limited to feminist organizations; it also came from groups opposing “overpopulation,” proliferating welfare rolls, and government control of intimate matters. In the late 1960s, legislatures in Colorado, California, North Carolina, New York, Hawaii, and Washington reformed their states’ abortion statutes. By 1971 over half of Americans favored legalization.⁸ It was gradually becoming clear that outlawing abortion had failed. Illegal abortions were occurring in huge numbers nationwide, sometimes via organized groups such as the feminist Jane Collective in Chicago, which arranged hundreds of abortions a year.⁹ All of these factors pushed medical, legal, and major political authorities to support formal legalization. Roe v. Wade (1973), the Supreme Court decision that invalidated all state laws outlawing abortion, was in part a pragmatic response to this entire complex of developments.

How p. 15many abortions were performed in the criminal era?

No one will ever know how many illegal abortions were performed in the pre-Roe era as almost all occurred in secret. Yet public health experts, law enforcement officials, physicians, and others who tracked abortion during the decades before and after Roe estimated that the number of legal abortions was close to the number of illegal procedures performed before Roe. Indeed, as far back as 1871, the New York Times reported that there were two hundred full-time abortionists in New York City. In 1890 doctors estimated that 2 million abortions were performed in the United States each year, and in 1921, a Stanford University study, using more reliable statistics than had formerly been available, found that one of every 1.7 to 2.3 pregnancies ended in abortion, and that about half of these were illegal. Other studies showed similarly high rates.¹⁰ This is a surprising fact to many Americans who have believed that girls and women began to get abortions only in 1973, after the legalization of pregnancy termination. Equally surprising is the high rate of safe abortions in the late criminal era, when maternal mortality was more than five times more likely to result from childbirth than abortion.¹¹

When did the anti-abortion movement emerge?

Despite the very large number of abortions that doctors and ­others performed every year in the pre-Roe era—many performed by easy-to-find illegal practitioners working in recognized locations—there was no organized anti-abortion movement in the United States until after 1973. In reaction to Roe, a growing number of people, identifying a pervasive “values crisis,” called for laws and policies to restrain what they saw as an excess of equality. In their view, women were grabbing social power from men and challenging social stability in part by claiming reproductive rights, especially the right to have an abortion. Many who felt threatened by this crisis of values turned to religion for comfort and for answers, and as a vehicle for organizing resistance.

Immediately p. 16↵after Roe v. Wade, the National Conference of Catholic Bishops created the Pro-Life Legal Affairs Committee to work for the election of anti-abortion candidates, who were increasingly Republicans, and to work on a “pro-life” constitutional amendment.¹² The other center of religious and political work against legal abortion was the National Right to Life Committee, founded in 1974. In addition, by this time, fetal imaging was a routine practice. Being able to “see” and ascribe personhood to the fetus stimulated anti-abortion activism. After Roe v. Wade, state legislatures began to pass laws blocking public funding and mandating the consent of a third party (a husband, parent, or judge) for abortion. By 1977 most public and private hospitals did not permit abortions, which were now largely performed in free-standing clinics.¹³

What role did violence play in anti-abortion activism?

The anti-abortion movement quickly turned violent; the first clinic targeted by arsonists was in St. Paul, Minnesota, in 1977. Between 1977 and 1988, abortion providers reported 42 arson attacks, 37 attempted bomb and arson attacks, 216 bomb threats, 65 death threats, 162 incidents of hate mail, and 220 incidents of vandalism. The 1990s saw increased harassment of women and violence against health care providers, including the murders of physicians and other clinic personnel.¹⁴ In 1997, an anti-abortion terrorist created “The Nuremberg Files,” a website displaying names and pictures of abortion doctors along with personal information such as home addresses. The names of physicians who had already been murdered were crossed out. Abortion providers, describing the constant fear that the site caused them and their families, sued the creator of the website, Neal Horsley. A jury found the site “a true threat to kill,” a decision that was later overturned by an appeals court.

How p. 17have US presidents dealt with the subject of abortion?

For two decades following Roe v. Wade, US presidents were either silent about the issue or actively opposed legalization. The Roe v. Wade decision was handed down during Richard Nixon’s second term; however, Nixon made no public statements on this or other matters relating to abortion. Nor did President Gerald Ford. President Jimmy Carter was anti-abortion. President Ronald Reagan opposed abortion while in office and each year addressed the pro-life rally in Washington by telephone. President George H.W. Bush was anti-abortion. President Bill Clinton, who came to office twenty years after the legalization of abortion, was the first president to support abortion rights. He lifted the “gag rule” (a law prohibiting physicians and other employees of abortion-providing facilities from educating or counseling women about abortion) as soon as he took office and supported the Freedom of Access to Clinic Entrances (FACE) Act that prohibited the use of force, threats, or physical obstruction to interfere with a person trying to enter or leave an abortion clinic. Notably, during the Clinton administration, perpetrators of violence against clinics and personnel were most active and virulent.

Adhering to the prescriptions of contemporary party politics, George W. Bush was anti-abortion, reinstating the Reagan-era Mexico City policy also called the “global gag rule,” targeting “partial-birth” abortion, and promoting adoption and abstinence, among other “pro-life” policies. Barack Obama rescinded the “global gag rule” and has generally supported reproductive rights.