The Untold History Of Roe V. Wade

On May 3, 2022, a draft opinion of the United States Supreme Court was leaked, which strongly suggested that the Court was planning to overturn the right to have an abortion in the United States, stating that "We hold that Roe and Casey must be overruled."

The right to abortion wasn't always a hot-button political issue. During the 1970s, the religious right rallied around anti-abortion after they lost the battle of school segregation. But this wasn't the first assault on abortion rights and reproductive justice in the United States.

Abortion has been practiced by people on the North American continent well before the inception of the United States, and even after American independence, abortions were considered commonplace. But if reproductive agency was once a normal practice, what caused the shift into criminalizing abortions to the point where the Supreme Court had to eventually get involved and legitimize the right to abortion? And what happened after that decision? This is the untold history of Roe v. Wade.

During the period of enslavement in the United States, Black people used a variety of methods to maintain reproductive agency or keep their children from being enslaved, ranging from avoiding sexual contact, inducing abortions, and infanticide. Across cotton plantations, some enslaved people chewed cotton roots to prevent pregnancy or induce an abortion. Others used calomel, also known as mercurous chloride, or turpentine. "In them days the turpentine was strong and ten or twelve drops would miscarry you. But the makers found what it was used for and they changed the way of making turpentine. It ain't no good no more," per the Lowcountry Digital History Initiative.

According to the PSU McNair Research Journal, because any successful attempt to limit reproduction "a loss of capital for their master, and a loss of population for the system itself [...] any reproductive choices that slave women made could affect their system of oppression and, therefore, should rightly be deemed as resistance to slavery."

But as Black Perspectives notes, there are unfortunately few records of the views of enslaved people regarding abortions. This is due to the fact that Black people would have to recount their experiences of slavery to interviewers or editors who were white men, which "limited their ability to speak openly about birth control and contraception."

Despite the anti-abortion laws enacted in the United States, abortion remained relatively common practice in the 19th century. According to "Abortion in America" by James C. Mohr, in the 1850s, it was estimated that one in every five pregnancies resulted in an abortion. Other estimates indicated that roughly 2 million abortions were performed in the United States every year. And even with the increasingly common anti-abortion laws, few doctors or midwives were ever arrested or convicted unless the person who had the abortion died, writes The Atlantic.

There were many abortion providers in the United States, but the most famous of them was Ann Trow, also known as Madame Restell. The Embryo Project Encyclopedia writes that Restell would provide herbal treatments by mail to induce abortions, with plants used for centuries for abortions, such as "pennyroyal, savin, black draught, tansy tea, cedar oil, ergot of rye, mallow, and motherwort."

Restell charged financially insecure people $20 for an abortion while wealthy women were charged $100. This amounts to roughly $660 to $3,300 in 2022, and is not unlike the cost of abortions in the 21st century. Restell reportedly provided abortions for up to 35 years, with offices in New York, Boston, and Philadelphia. In addition to providing abortion services, Restell also provided aid to people who wanted to carry the pregnancy to term. She offered a boarding house where people could give birth and afterwards would facilitate the adoption for an additional fee.

Following the assault by physicians and racists, Congress passed the Comstock Law of 1873, named after Anthony Comstock, the head of the Society for the Suppression of Vice. PBS writes that The Comstock Act defined contraceptives and abortifacients as obscene, and it was a federal offense to send anything that could be considered obscene, indecent, or immoral through the mail.  The punishment included imprisonment between six months and five years or a fine between $100-$2000. This was reportedly the first law of its kind in the Western world, and after the federal law was passed, 24 states followed suit and enacted state legislation as well to restrict the trade of contraceptives and abortifacients.

According to The Embryo Project Encyclopedia, the Comstock Act was enforced until it was overturned by the decision in Griswold v. Connecticut in 1965, which held that it was "unconstitutional to restrict access to birth control because it interfered with a person's right to privacy."

But by the beginning of the 20th century, every state in the United States had outlawed abortion, though there were some differences between the states as to what exactly was prohibited, such as exceptions if the life of the pregnant person was at risk, among other things.

On March 13, 1970, Hawai'i became the first American state to legalize abortion, allowing it to be performed if requested by a pregnant person as long as it was performed in a hospital by a licensed doctor before 24 weeks. However, according to the University of Hawai'i, it was also required a person to be a resident of the state for at least 90 days. Up until then, abortion was only allowed in Hawai'i if it was necessary to save the life of the pregnant person.

According to the 1976 congressional hearings on abortion, there were over 3,500 abortions performed in Hawai'i in the first year after legalization. And "there is considerable evidence that the present demand was not the product of the legalization, but had existed for some time prior to it."

In April 1970, New York also voted to legalize abortion, allowing them to be performed up through the first 24 weeks of pregnancy. But according to CQ Researcher, New York's law had neither a residence requirement nor a hospital requirement.

Both of the Supreme Court decisions regarding abortion were based on the right to privacy that was established by the 14th Amendment. According to the New Mexico Law Review, the Supreme Court stated in their decision that "the right of personal privacy includes the abortion decision," although they also asserted that "this right is not unqualified and must be considered against important state interests in regulation."

However, as Caitlin E. Borgmann notes in "Abortion, the Undue Burden Standard, and the Evisceration of Women's Privacy," this right to privacy was largely based around the doctor's office, considered to be the only appropriate private realm, and the Supreme Court seemed to be more concerned with "the right of the physician to administer medical treatment according to his professional judgement," than about underlining the agency of the pregnant person.

Abortion isn't the only thing that the Supreme Court determined falls under the right to privacy, though. Griswold v. Connecticut, which protected the ability of married people to buy contraceptives, Lawrence v. Texas, which found that it was unconstitutional to punish people for homosexuality, and Loving v. Virginia, which struck down interracial marriage bans, were all decided based on the idea of the right to privacy.

After abortion was legalized in the United States through Roe v. Wade in 1973, there was a violent backlash. Anti-abortion terrorists proceeded to target places that offered abortions, resulting in thousands of violent incidents. According to the National Abortion Federation, between 1977 and 2014, anti-abortion terrorists committed at least eight murders, 17 attempted murders, 42 bombings, 100 butyric acid attacks, 182 arson attacks, 663 anthrax or bioterrorism threats, and four kidnappings.

In 1996, anti-abortion terrorist Eric Rudolph made headlines after he bombed the Centennial Olympic Park in Atlanta, Georgia on July 27 during the 1996 Summer Olympics. The shrapnel from the bombing killed Alice Hawthorne and injured 111 other people, Atlanta Magazine reports. The Atlanta Journal-Constitution writes that in addition to bombing the 1996 Summer Olympics, Rudolph also bombed two clinics that provided abortions, one of them in Birmingham, Georgia, as well as an Atlanta lesbian bar.

After he was arrested, Rudolph pled guilty to the bombings and released an 11-page statement in which he cited abortion, gay rights, and the federal government as the motive for his attacks. In his statement, he claimed, "Abortion is murder. And when the regime in Washington legalized, sanctioned and legitimized this practice, they forfeited their legitimacy and moral authority to govern," per NPR.

On June 24, 2022, almost exactly 50 years after the Roe v. Wade ruling, the Supreme Court handed down its decision on Dobbs v. Jackson Women's Health. In a 6-3 vote along ideological lines, the court overturned both Roe v. Wade and Planned Parenthood v. Casey, meaning there was no longer a federal protection of the right to end a pregnancy in the United States. 

"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division," Justice Samuel A. Alito Jr. wrote for the majority, per The Washington Post. "It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

However, CNN reports that the pro-choice movement was given a poignant note in the dissent from the three liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, who closed out their dissent with the line: "With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent."