Last June, The Supreme Court made a monumental decision to overturn Roe v. Wade, which had set a nearly fifty year precedent guaranteeing the constitutional protection of the right to abortion. In the majority opinion, Justice Alito concluded that the right to abortion is "not deeply rooted in the Nation’s history and tradition," making the Roe decision an incorrect interpretation of the 14th Amendment. However, when you examine the history of the legal status and culture surrounding abortion in America, the use of the 14th amendment seems justified.
America had no official legislation on abortion in the 1800s, rather, precedent was based upon traditional British common law. Thus, abortion was only considered a crime after "quickening" or when the fetus would first move, as they believed this showed the fetus gained consciousness. The focus on quickening gave women more time and discretion since quickening was determined by the woman and occurred later in pregnancy. Although it was hard at this point in history for women to know if they were pregnant or not pre-quickening, they could receive treatment for "blockages" that prevented their regular period, which could be the same as early-term abortions.
Quickening would remain the precedent, supported by an 1812 Massachusetts Supreme Court case Commonwealth v. Bangs that decided a woman must be “quick with child" for abortion to be a crime. It wasn’t until 1834 that Ohio would enact the countries first law criminalizing pre-quickening abortions. In 1835 Missouri criminalized pre- and post-quickening abortions and penalized anyone who assisted them, and soon several states and territories would base laws on Missouri’s. By the mid-1850s, over half of America’s states and territories would have some form of criminal abortion laws.
However, abortion was still a very common practice. The Chicago physican Edwin Hale estimated that in 1860 one in five pregnancies ended in an abortion. Historians relate women sharing treatments to induce abortions as one would recommend home remedies for the common cold. One doctor in 1900 reported “Violent exercise is suggested and jumping off a chair or rolling down the stairs is a favorite procedure.” Advertising for abortion-products also became commonplace in the 1800's, appearing in popular magazines, posters, speciality publications, and even in religious journals. The meaning behind these advertisements were "known to every-school girl in America" and the amount of purchases were estimated to be upwards of a million dollars.
Because of the frequent use of abortions, in the 1860s the American Medical Association took on a campaign to criminalize abortion nationwide. They took a morality stance, trying to change the popular opinion that consciousness begins at quickening to the belief that consciousness begins at conception. This campaign was largely fueled by racist replacement theory as birth rates of protestant women fell as they used abortion to delay or stop having children. People believed this would cause the white race to be outnumbered especially with increases in immigration. The campaign also wanted to stop women from going to female midwives who performed abortions to doctors in the new specialties of gynecology and obstetrics, which were practiced solely by white men. Their moral argument pushed states to support strict abortion laws, especially with another strong campaign from the New York Society for the Suppression of Vice, which advocated against birth control, prostitution and abortions. With the cumulative power of both campaigns lobbying by 1880 all states had outlawed abortion.
Despite criminalization, abortions didn’t stop, although stigma began to grow. Numerous studies in the 1930s estimated that the rate of abortion ranged from 2 to 22 percent, and in 1936 the estimated ratio of abortions to births was 1:3. By the 1950’s and 1960s the estimate of the number of illegal abortions ranged from 200,000 to 1.2 million per year. The mid-1960s brought discontent about restrictive abortions laws and activism from groups like Planned Parenthood, and the National Association for the Repeal of Abortion Laws. The strength of the abortion rights movement pushed states to relax their laws, between 1967 and 1973 four states repealed their abortion bans entirely and thirteen others reformed them. In 1970 New York became the first state to legalize abortion and two-thirds of the abortions performed were from people who had traveled from other states who had restricted or criminalized abortion. Then in 1973, the Supreme Court ruled the right to abortion as constitutional under the 14th Amendment's right to privacy provision and although weakened by later court rulings it protected abortion rights for almost fifty years.
Taking all of this into consideration we can reevaluate Justice Alito's decision, that because abortions are not deeply rooted within the United States' history and tradition meaning it should not be constitutionally protected. However, we’ve just seen several examples of abortions being a strong part of American culture from its founding to today. But another question that should be raised is whether abortions being rooted in our country's history should matter at all. Looking back at history is an important practice that we can certainly learn from, but we have to decide to what degree we allow history to impact our present. How are we ever going to progress forward if we are restricted by the decisions of the past?
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