The long fight over abortion rights in the United States

By Elinor Evans

Published: Thursday, 05 January 2023 at 12:00 am

The 2022 US midterm elections were long expected to be a referendum on Joe Biden’s time as president and the nation’s inflation-ridden economy, but then came a summer surprise: the US Supreme Court returned a precedent-shattering decision that the federal constitution does not protect a right to abortion. Overturning the landmark 1973 Roe v Wade opinion, the court granted each state the power to regulate access to abortion.

Suddenly, the issue – at times dismissed as politically unviable by both Democrats and Republicans – returned to the ballot with fervour. According to US non-profit organisation the Kaiser Family Foundation, nearly 40 per cent of poll-goers reported the court’s ruling had a “major impact” on their decision to vote, contributing to the Democratic party’s stronger than expected performance.

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Protesters march through Washington DC in support of abortion rights and birth control, March 1986. The issue has long prompted strong feelings in the United States on both sides of the argument. (Image by Getty Images)

Fifty years have passed since the Supreme Court first upheld a woman’s constitutional right to abortion in Roe v Wade. Yet the recent reversal, and ensuing pushback, highlights how central it remains to the American political psyche. Indeed, although it is often elevated as the singular moment of abortion history in the United States, the case – and its place in the nation’s broader medical, racial and social histories – also provides overlooked insights into currents that still influence debates around the subject today.

In 1970, when unwed 21-year-old Norma McCorvey was five months pregnant in Texas, abortion was prohibited except when the pregnancy threatened the mother’s life. Pseudonymised as “Jane Roe”, McCorvey sued district attorney Henry Wade, seeking permission for an abortion and to overturn the state’s ban on the procedure.

Notably, neither women nor foetuses featured prominently in Roe v Wade. Instead, it foregrounded the rights of doctors to act in their patients’ best interests

McCorvey did not receive an abortion, but three years later the Supreme Court released its ruling. The majority argued that the 14th Amendment of the constitution enshrined a “right to privacy” protecting the decision of a woman and her physician about whether to carry a pregnancy to term. However, the court also held that the right to abortion must be balanced against the protection of potential life. Notably, neither women nor foetuses featured prominently in the decision. Instead, it foregrounded the rights of doctors to medically act in the best interest of their patients – largely sidestepping debates over bodily autonomy and reproductive rights.

Just as Roe focused on doctor-patient relationships, medical professionals have long played a complicated role in regulating abortion in the US. Until the mid-19th century, termination of early pregnancy was legal under common law, restricted only after “quickening” – the point at which a woman could feel foetal movements. By defining the limits of abortion around a woman’s experience of her own pregnancy, the law tacitly reinforced a woman’s right to control decisions concerning her body.

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Margaret Sanger, founder of the pro-choice American Birth Control League, has her mouth covered during a 1929 protest against the inability to discuss birth control in Boston, Massachusetts. (Image by Getty Images)

However, growing gender, class and racial anxieties drove male physicians to undertake political action against abortion. In 1857, the fledgling American Medical Association (AMA) sought to centralise its power over medical practice, and specifically limit the growing influence of female midwives providing abortions. Leading the organisation’s campaign, Dr Horatio Storer promoted his belief that increasing abortions among middle-class, married, white women would threaten the enduring political power of white Americans.

The AMA, which at the time excluded women and black doctors from membership, successfully legally established that life began at conception, rather than at quickening. Between 1860 and 1880, at least 40 anti-abortion laws entered state records, reframing abortion not as a medical act dictated by women’s bodily experience, but a grave, immoral crime carried out by those women.

Medical intervention

Yet there were some doctors who still performed abortions in the 20th century. During the bleak Depression era between 1929 and approximately 1939, practitioners rationalised abortion as financially necessary for families. But with the end of the Second World War and a renewed focus on promoting domestic life for women, this leniency waned. These changes illustrate how male physicians dictated sexual politics in the US. Despite its blanket illegality, when abortion was connected to economic needs of the family, it was prioritised as an unfortunate necessity. However, when the decision was linked to a woman’s want for political, financial, or personal independence, it was heavily restricted by medical providers.

As enforcement of abortion bans tightened, procedures were pushed underground, where up to 1.2 million illegal abortions were performed each year during the 1950s and 1960s. Whereas practitioners had led criminalisation efforts a century earlier, now they lobbied for legalisation as maternal deaths from illegal abortion skyrocketed.

Some conservative and religious anti-abortion groups such as the National Right to Life Committee drew on civil-rights era rhetoric

Although Roe v Wade focused on medical practitioners, fiery social movements for and against reproductive rights developed in the years surrounding the decision. Generally, mainstream American pro-choice and anti-abortion groups were situated as fundamentally opposed. Yet racial histories complicate this narrative: both groups were dominated by white leaderships which leveraged dangerous racial logics in their campaigns.

For Margaret Sanger, founder of the pro-choice American Birth Control League in 1921, what started as a fight for bodily autonomy and access to education, work and politics, became heavily tied to the mid-1900s racial eugenicist movement. Sanger argued that birth control, including abortion, not only promoted women’s health and freedom, but was essential to “stop the multiplication of the unfit” for “racial betterment”. As late as the 1970s, government-sponsored family planning programmes, championed by mainstream feminist organisations such as Sanger’s, openly encouraged – and in some instances coerced – black, Latina, and Indigenous women to seek abortion and sterilisation.

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Pro-choice and anti-abortion protesters in New York City, November 2022. The history of abortion rights in the US is complicated by gender, race and class prejudice, argues Allison McKibban. (Image by Getty Images)

Following Roe v Wade, and having disavowed the eugenics movement, some feminist groups, including the National Organization for Women, seemingly remained indifferent to the rampant reproductive injustice women of colour experienced, including a federal campaign of forced sterilisation, disproportionate maternal deaths during abortion, and the racist mythologies that inhibited care from doctors, caseworkers, and judges. Speaking to this complicity, law professor Dorothy Roberts concludes in her 1997 book Killing the Black Body that the women’s movement was part of a “systematic, institutionalised denial of reproductive freedom” for black and Indigenous women.

At the same time, some conservative and religious anti-abortion groups such as the National Right to Life Committee drew on civil rights-era rhetoric. Historian Jennifer Holland argues in her 2020 book Tiny You that despite being almost entirely white, anti-abortionists built a “civil rights movement for foetuses” by claiming that only through the protection of the foetus could Americans successfully protect Christianity, womanhood, the traditional family, and the rights of oppressed people.

Yet, this appropriation of civil rights language impugned the reproductive choices of black women within their own communities by presenting abortion as anti-black. Loretta Ross, co-founder of the 1997 SisterSong Women of Color Reproductive Justice Collective, described the painful impact on black women who sought abortions, writing “we are now accused of lynching our children in our wombs and practising white supremacy on ourselves”.

In the 50 years since Roe v Wade, abortion has remained a contested political frontier. However, the intricate histories of the fight over reproductive rights are often lost in the loudest narratives of contemporary activism. The reality of those pasts – filled with gender, race and class discrimination – remain a poignant reminder of the complexities of activism and the need for nuance in policymaking.

Allison McKibban is a history and law researcher, and the engagement coordinator of Birkbeck College’s Sexual Harm and Medical Encounters project

This article first appeared in the February 2023 issue of BBC History Magazine