Pre-1840, abortion was accessible and stigma-free for most
On 24 June 2022, The Supreme Court Of The United States (SCOTUS) ruled 5-4 to overturn the 49-year-old ruling of Roe v. Wade, which allowed abortion till the point of foetal viability. This ruling has made abortion near-illegal in several states of the country.
Over the years, several laws and lawmakers have slowly weathered the metaphorical rock of bodily autonomy for women and people who reproduce.
To understand the impact of the judgment, one must understand the years of legislation that people were put through and how it has shaped the post-Roe world.
Organised opposition to abortion began a little over a century before Roe v. Wade and was radically distinct from the anti-abortion movement known today.
Pre-1840, abortion was accessible and stigma-free for most people. Newspapers advertised pregnancy termination services as herbal remedies to cure “obstructed menses.”
As was customary, laws at the time reflected the British common law. The judiciary of the US decided to use the ‘quickening doctrine’ to determine the legality of abortion.
Quickening was defined as the moment a fetus’s movement can be detected, usually around weeks 22-24 of the pregnancy. The doctrine distinguishes the modern era’s anti-abortion movement from the 1840s.
Fetuses were only considered potential lives before quickening. In the absence of modern medicine tools, it was the only means to confirm a pregnancy.
The woman was the final authority when it came to quickening. She was the one to know because only she could feel it. Due to this, even though abortions post-quickening were illegal, prosecutions were minimal.
Historians believe that the quickening doctrine was designed to protect women as abortions in later stages were synonymous with high maternal mortality, in contrast to early abortions via herbal concoctions.
In the mid-1800s, the field of medicine was highly unregulated and a variety of healers and midwives competed with physicians in the business, especially regarding reproductive care.
The anti-abortion movement finds its roots in a coalition of male doctors looking to distinguish themselves from female healers and midwives.
The American Medical Association (AMA) was formed in 1847 and argued that doctors possessed superior knowledge about the female body and should be the final authority on abortion. In addition to pushing states to pass anti-abortion laws, the physicians used the AMA to discredit their competition.
The following decades involved the criminalisation of abortion at each stage of pregnancy. This fostered a cottage industry for abortion in the States.
According to the Guttmacher Institute, the number of illegal abortions in the 1950s and 1960s fall between 200,000 and 1.2 million per year. Doctors provided illegal medications and surgical abortions that became progressively safer with the advent of penicillin but remained dangerous and deadly.
The black market had an even darker downside. People seeking abortion did encounter doctors well versed in the latest medicine or trained midwives. But it was often hard to ascertain who one was dealing with and several instances show pregnant people being roped in by opportunists.
In 1965, deaths due to illegal abortions accounted for 17 per cent of all maternal deaths. Historians believe that the number of deaths was much higher than reported.
In the early 1970s, the AMA and many clergy bands and female activists decided to repeal abortion bans. Colorado became the first state to change its law in 1967, followed by California in 1967 and New York in 1970.
In 1973, the Supreme Court legalised abortion in all fifty states with the Roe v. Wade decision. The decision enabled states to regulate abortion from “approximately the end of the first trimester.”
The Roe judgment, while monumental, was still aloof from the reality of the people whose life the judgment was legislating. However, the autonomy that came with the landmark Roe was short-lived.
The Hyde Amendment of 1976 was the first blow in the post-Roe world.
The amendment prohibited federal funds from covering abortion services for people enrolled in Medicaid, Medicare and the Children’s Health Insurance Program (CHIP). It is a discriminatory policy that Congress has included in annual spending bills since 1976.
At present, the amendment affects people in 34 states of the US who do not have access to state-funded abortion via Medicaid.
It has furthered systemic racism as women of colour in the US are disproportionately likely to have low incomes and to be insured through Medicaid.
Among reproducing people aged 15-49, 29 per cent of black women are insured through Medicaid compared to 15 per cent of white women, according to another Guttmacher Institute report.
On average, an abortion at 10 weeks costs $550, equating to an individual’s monthly rent in the US. Costs keep skyrocketing as the pregnancy progresses, making it virtually impossible for people to access termination of pregnancy services.
In addition to Hyde, related bans withhold abortion coverage from millions of people who obtain their health coverage or care through other federal programs, says the report.
The bans affect federal employees, military personnel and veterans, people imprisoned or detained by the federal government, Native Americans, Peace Corps volunteers, and low-income people living in the district of Columbia.
While affirming the constitutional right to abortion in 1993, the SCOTUS enabled states to pass more restrictive abortion laws with the ruling of Planned Parenthood of Southeastern Pennsylvania v. Casey.
In the plurality opinion, the SCOTUS affirmed the “essential holding” of Roe v. Wade (a woman’s right to obtain an abortion prior to foetal viability) but rejected the trimester-based framework of the judgment.
The ruling allowed states to curb the availability of abortion in favour of a more flexible medical definition of viability.
The decision reaffirmed that the privacy of person’s right to choose abortion was derived from the due process clause of the Fourteenth Amendment to the US constitution. The clause places individual decisions about abortion, family planning, marriage, and education within “a realm of personal liberty which the government may not enter.”
Ultimately, the court upheld all the provisions of the Pennsylvania statute under attack except for the requirement of spousal notification.
Post-Roe, 22 states in the US have laws that can be used to restrict the legal status of abortion. In 13 states, post-Roe laws ban nearly all forms of abortion.
In the absence of safe and legal procedures, funds or even supportive health personnel, people in the US will be more likely to proceed with unwanted pregnancies.
The ripple effect of the judgment will likely jeopardise several individuals’ financial standings, overburden the US’s clogged foster system and increase abuse rates.
The overturning of Roe v. Wade will include abortion clinics and hospitals turning away almost a million people every year who have been denied their right of choice.
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