Abortion in American History

In Dobbs v. Jackson Women’s Health Organization (2022), the United States Supreme Court overturned nearly 50 years of precedent permitting pregnancy termination. The court characterized Roe v. Wade as an anomaly, asserting that abortion had historically been prohibited, condemned, and punished. As evidence, the Supreme Court appended a long list of 19th-century state statutes criminalizing abortion in all stages of pregnancy—laws that had been adopted by nearly all states by 1900. To the court’s majority, this historical record settled the issue.

For historians, however, the 19th-century criminalization of abortion is only the beginning of the inquiry. What did these statutes say? What local circumstances drove criminalization in each state? Why did it take nearly 80 years for the states to align? Most importantly, were these laws actually enforced through prosecutions and punishments? Answering these questions requires moving beyond statute books to examine the broader historical context of abortion’s legal history.

On Jan. 17–18, The Huntington will host a research conference titled “Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries before Roe v. Wade.” The conference will explore more than a century of abortion history in the United States before 1973. The participants—historians engaged in new research—will examine the complex story of reproductive practices and choices as women confronted their pregnancies. Given the Supreme Court’s reliance on originalist interpretations, understanding this history accurately has never been more crucial. Nearly half of the conference panelists have contributed to amicus curiae (friend of the court) briefs, both in Dobbs and subsequent state court cases since the 2022 decision returned abortion law to the states.

Before 19th-century state statutes criminalized abortion, American colonies and early states followed Anglo American common law, which criminalized abortion only after quickening—the point when fetal movement is first felt. The common law was silent about the months before quickening. In colonial times, private medical events were rarely recorded in newspapers or family letters. Induced and spontaneous miscarriages typically went unnoted, and very few documented legal cases involved post-quickening abortions.

By the 19th century, societal changes made abortion more visible. One major factor was the explosion of print media. Some newspaper editors, vying for readers, sensationalized sex-crime news, publishing testimony from coroners’ inquests and trials. These stories emphasized the dangers of abortion. Yet, at the same time, this reporting made the public more aware of abortion as an option for addressing unwanted pregnancies.

A second factor was the growth and professionalization of medicine. While laywomen continued to provide most childbirth care, medical schools began training men for midwifery, offering instruction in obstetrics and women’s diseases. Medical textbooks introduced such developments as anesthetics and invasive tools, which could also be used for abortion. Although some prominent urban abortion providers, such as New York City’s Madame Restell, were women, trial records reveal that many male physicians at all levels of training also participated in the lucrative practice of abortion.

A third factor was demographic change in the mid-19th century. Among native-born whites, the average age of first marriage rose and family size began a long-term decline; a marked increase of immigrants exhibited opposite trends, fueling anxieties over differential birth rates. These fears, compounded by a national lobbying campaign by the American Medical Association in the 1860s, spurred a wave of state laws criminalizing abortion in the 1860s and 1870s.

At the conference, panelists will examine such topics as New York City’s central role in publicizing abortion, the diversity of state statutes, and the alarm fomented by the American Medical Association’s campaign of 1860. Other discussions will explore the 14th Amendment’s implications, the legacy of the 1873 Comstock Act, the role of 20th-century women physicians in the West, therapeutic exceptions in California, and the underground abortion network of the 1960s.

The conference will also highlight a remarkable resource that The Huntington acquired in 2016: the Lawrence D. and Betty Jeanne Longo Collection in Reproductive Biology. The collection comprises some 2,700 rare books, 3,000 pamphlets and journal articles, a dozen manuscripts, and a major trove of reference works that delineate dramatic shifts in knowledge about women’s health and health care from the late 15th to the 20th century. The collection provides an unparalleled view of the evolving understanding of reproductive health and disease. Among the 19th-century professional journals, researchers can trace doctors’ debates on prenatal development and abortion, a controversy that continues to resonate today.

Read more about the conference and register to attend.

Funding for this conference has been provided by the USC-Huntington Early Modern Studies Institute and the Molina Family Foundation.

Patricia Cline Cohen is professor emerita of history at the University of California, Santa Barbara.