As the Supreme Court considers Roe v. Wade, a look at how abortion became legal

Nov 29, 2021
Originally published on November 29, 2021 6:54 pm

For nearly a half-century, abortion has been a constitutional right in the United States. But this week, the U.S. Supreme Court hears arguments in a Mississippi case that directly challenges Roe v. Wade and subsequent decisions.

Those rulings consistently declared that a woman has a constitutional right to terminate a pregnancy in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb. But with that abortion right now in doubt, it's worth looking back at its history.

Abortion did not become illegal in most states until the mid to late 1800s. But by the 1960s, abortion, like childbirth, had become a safe procedure when performed by a doctor, and women were entering the workforce in ever larger numbers.

Still, being pregnant out of wedlock was seen as scandalous, and women increasingly sought out abortions, even though they were illegal. What's more, to be pregnant often meant that women's educations were stunted, as were their chances for getting a good job. Because of these phenomena, illegal abortion began to skyrocket and became a public health problem. Estimates of numbers each year ranged from 200,000 to over a million, a range that was so wide precisely because illegal procedures often went undocumented.

At the time, young women could see the perils for themselves. Anyone who lived in a college dormitory back then might well have seen one or more women carried out of the dorm hemorrhaging from a botched illegal abortion.

George Frampton clerked for Justice Harry Blackmun the year that his boss authored Roe v. Wade, and he remembers that until Roe, "those abortions had to be obtained undercover if you had a sympathetic doctor" and you were "wealthy enough." But most abortions were illegal and mainly took place "in backrooms by abortion quacks" using "crude tools" and "no hygiene."

By the early to mid-1960s, Frampton notes, thousands of women in large cities were arriving at hospitals, bleeding and often maimed.

One woman, in an interview with NPR, recalled "the excruciatingly painful [illegal] procedure," describing it as "the equivalent of having a hot poker stuck up your uterus and scraping the walls." She remembered that the attendant had to "hold her down on the table."

The result, says Frampton, was that by the mid-1960s, a reform movement had begun, aimed at decriminalizing abortion and treating it more like other medical procedures. Driving the reform movement were doctors, who were concerned about the effect that illegal abortions were having on women's health. Soon, the American Law Institute — a highly respected group of lawyers, judges and scholars — published a model abortion reform law supported by major medical groups, including the American Medical Association.

Many states then began to loosen their abortion restrictions. Four states legalized abortion, and a dozen or so adopted some form of the model law, which permitted abortion in cases of rape, incest and fetal abnormality, as well as to save the life or health of the mother.

By the early 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as Frampton observes, "it wasn't a big political or ideological issue at all."

In fact, the justices in 1973 were mainly establishment conservatives. Six were Republican appointees, including the court's only Catholic. And five were generally conservative, as defined at the time, including four appointed by President Richard Nixon. Ultimately, the court voted 7-to-2 that abortion is a private matter to be decided by a woman during the first two trimesters of her pregnancy.

That framework has remained in place ever since, with the court repeatedly upholding that standard. In 1992, it reiterated the framework yet again, though it said that states could enact some limited restrictions — for example, a 24-hour waiting period — as long as the restrictions didn't impose an "undue burden" on a woman's right to abortion.

Frampton says that the court established the viability framework because of the medical consensus that a fetus could not survive outside the womb until the last trimester. He explains that "the justices thought that this was going to dispose of the constitutional issues about abortion forever."

Although many had thought that fetal viability might change substantially, that has not happened. But in the years that followed, the backlash to the court's abortion decisions grew louder and louder, until the Republican Party, which had earlier supported Roe, officially abandoned it in 1984.

Looking at the politicization of the Supreme Court nomination and confirmation process in recent years, one can't help but wonder whether Roe played a part in that polarization. What does Frampton think?

"I'm afraid," he concedes, "that analysis is absolutely spot on. I think they [the justices] saw it as a very important landmark constitutional decision but had no idea that it would become so politicized and so much a subject of turmoil."

Just why is abortion such a controversial issue in the United States but not in so many other countries where abortion is now legal? Florida State University law professor Mary Ziegler, author of Abortion and the Law in America, points out that in many countries, the abortion question has been resolved through democratic means — in some countries by national referendum, in others by parliamentary votes and, in some, by the courts. In most of those countries, however, abortions, with some exceptions, must be performed earlier, by week 12, 15 or 18.

But — and it is a big but — in most of those countries, unlike in the U.S., national health insurance guarantees easy access to abortions.

Lastly, Ziegler observes, "there are a lot of people in the United States who have a stake in our polarized politics. ... It's a way to raise money. It's a way to get people out to the polls."

And it's striking, she adds, how little our politics resemble what most people say they want. Public opinion polls consistently show that large majorities of Americans support the right to abortion in all or most cases. A poll conducted last May by the Pew Research Center found 6 in 10 Americans say that abortion should be legal in all or most cases. And a Washington Post-ABC poll conducted last month found that Americans by a roughly 2-to-1 margin say the Supreme Court should uphold its landmark Roe v. Wade decision.

But an NPR poll conducted in 2019 shows just how complex — and even contradictory — opinions are about abortion. The poll found that 77% of Americans support Roe. But that figure dropped to 34% in the second trimester. Other polls had significantly higher support for second trimester abortions. A Reuters poll pegged the figure at 47% in 2021. And an Associated Press poll found that 49% of poll respondents supported legal abortion for anyone who wants one "for any reason," while 50% believed that this should not be the case. And 86% said they would support abortion at any time during a pregnancy to protect the life or health of the woman.

All this would seem to suggest that there is overwhelming support for abortion rights earlier in pregnancy, but less support later in pregnancy, and overwhelming support for abortions at any time to protect the life or, importantly, the health of the mother. That, however, is not where the abortion debate is in the 25 or so states that have enacted very strict anti-abortion laws, including outright bans, in hopes that the Supreme Court will overturn Roe.

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MARY LOUISE KELLY, HOST:

For nearly 50 years, abortion has been a constitutional right in the United States, as long as the fetus is not viable, not able to survive outside the womb. But later this week, the U.S. Supreme Court hears arguments in a Mississippi case that directly challenges Roe v. Wade and subsequent decisions. With abortion rights in jeopardy, NPR legal affairs correspondent Nina Totenberg takes a look at how and why Roe v. Wade came to be.

NINA TOTENBERG, BYLINE: Abortion did not become illegal in most states until the mid-to-late 1800s. But by the 1960s, abortion was, like childbirth, a very safe procedure if performed by a doctor. Women were entering the workforce in larger numbers, but being pregnant out of wedlock was still seen as scandalous and shameful. As a result, illegal abortion was becoming a public health problem. The estimated number of illegal abortions each year ranged from 200,000 to over a million, a range so wide precisely because the procedure was illegal and often undocumented. George Frampton clerked for Justice Harry Blackmun, the author of Roe, the year it was argued and decided.

GEORGE FRAMPTON: Those abortions either had to be obtained under cover - if you had a sympathetic doctor, if you were wealthy enough - or more likely, illegally in back rooms by abortion quacks, crude tools, no hygiene. By the early-to-mid '60s, thousands of women in large cities were coming into hospitals, bleeding, risk of their lives, often maimed.

TOTENBERG: As one woman recalled, the procedure was terrifying.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: The best way I can describe it would be the equivalent of having a hot poker stuck up into your uterus and scraping the walls with that. It was excruciatingly painful. The attendant that was there held me down on the table.

TOTENBERG: The result, says Frampton, was that by the mid-1960s a reform movement had begun, aimed at decriminalizing abortion and treating it more like other medical procedures. Driving the movement were doctors concerned about the damage to women's health. Soon, the American Law Institute, a highly respected group of lawyers, judges and scholars, published a model abortion reform law supported by the American Medical Association, and many states began loosening abortion restrictions. Four states legalized it, and a dozen or so states adopted some form of the model law, which permitted abortion in cases of rape, incest, fetal abnormality and to save the life or health of the mother. By the early 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as George Frampton observes...

FRAMPTON: It wasn't a big political or ideological issue at all.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #2: Mr. Chief Justice, and may it please the court.

TOTENBERG: In fact, the justices back in 1973 were mainly establishment conservative figures. Six were Republican appointees, including the court's only Catholic, and five were generally viewed as conservative, including four appointed by President Nixon. Ultimately, the court voted 7-2 that abortion is a private matter to be decided by the woman in consultation with her doctor during the first two trimesters of pregnancy.

That framework has remained in place ever since, with the court repeatedly upholding that standard and adding in 1992 that states could enact some restrictions as long as they didn't impose a, quote, "undue burden on a woman's right to abortion." Frampton says that the court established the framework because of the medical consensus then and now that a fetus could not survive outside the womb until 22 to 24 weeks.

FRAMPTON: The justices thought that this was going to dispose of the constitutional issues about abortion forever.

TOTENBERG: In the years that followed, however, the backlash grew louder and louder to the point that the Republican Party - which early on had supported Roe - in 1984 officially abandoned it. And when you look at how the Supreme Court nomination and confirmation process has been politicized, you can't help but wonder whether that would still be true without Roe. I put that question to Frampton.

FRAMPTON: Well, I'm afraid that your analysis is absolutely spot on. I think they saw it as a very important landmark constitutional decision but had no idea that it would become so politicized and so much a subject of turmoil.

TOTENBERG: Why such political controversy in the United States and not in many other countries where abortion is now legal? Mary Ziegler, author of "Abortion And The Law In America," says there are a number of reasons, among them that those countries provide easy access to abortion through national health insurance.

MARY ZIEGLER: So that it's realistic to have people be forced to seek abortions in the first, whatever, 12, 15, 18 weeks and actually be able to get the procedure done by then, whereas in the United States, there's no such health insurance.

TOTENBERG: More on all these issues Wednesday at the Supreme Court. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF HIDDEN ORCHESTRA'S "FLIGHT") Transcript provided by NPR, Copyright NPR.