Abortion: Overview

Introduction

Abortion is the act of ending a pregnancy by removing a human embryo or fetus from the uterus before it is viable. It has been practiced in every culture throughout history, but has also often drawn intense controversy. Debate over abortion revolves around competing moral perspectives. Opponents generally argue that an embryo or fetus is a human life and therefore should be given every possible chance to survive; some critics assert that induced abortion is a form of murder. Supporters tend to consider a fetus as part of the mother at least until viable, and therefore argue that pregnant people should be able to choose an abortion as part of their fundamental reproductive rights and bodily autonomy. They further note that abortion can sometimes be medically necessary to protect a pregnant person's health, and that bans on the procedure tend to increase the rate of unsafe abortions and other negative public health outcomes. There is also considerable nuance within the abortion debate, with many people approving of abortion in certain cases but opposing it in others, particularly based on the stage of pregnancy.

The longstanding controversy over abortion has led to a wide range of laws on the issue, including in the United States. Historically, abortion was usually legal in the first few months of pregnancy before "quickening," or the point at which movement could be felt in the womb, and illegal after that point. However, it was not until medical science improved in the nineteenth century that the issue received significant legal attention. Beginning in the mid-1800s, every US state criminalized abortion in most cases. In the mid-twentieth century, as medical perspectives continued to shift and the feminist movement gained influence, some states began to take a more liberal approach, with proponents viewing abortion as both a public health and a women's rights issue.

In 1973, the landmark US Supreme Court ruling in Roe v. Wade established a constitutional right to abortion nationwide (although restrictions on the practice after the first trimester of pregnancy were allowed). This decision proved highly polarizing, turning abortion into one of the central sociopolitical issues in American society over the following decades. Anti-abortion activists consistently pushed for tighter abortion restrictions at the state level, with significant success, and worked to get a conservative majority on the Supreme Court with the aim of eventually overturning Roe. That goal was realized with the Supreme Court ruling in Dobbs v. Jackson Women's Health Center (2022), which returned the issue of abortion law entirely to the states. As a result, some states quickly moved to ban abortion in almost all cases, while others took steps to legally protect abortion access. Debate also continued at the federal level, with some anti-abortion activists continuing to push for a nationwide abortion ban while proponents of reproductive rights called for new federal abortion protections.

Understanding the Discussion

Elective termination: An abortion performed at the request of the pregnant person for reasons unrelated to personal health or safety.

Embryo: A fertilized ovum that has implanted in the uterus. Following the eight weeks of development after conception, the embryo becomes a fetus.

Fetus: In human reproduction, a term for offspring in the stage of prenatal development lasting from the ninth week after fertilization until birth.

Hyde Amendment: A 1976 US law prohibiting federal funding for abortions except in certain restricted situations (such as rape or incest, or when the pregnant person is experiencing dangerous complications of pregnancy).

Late-term abortion: A contested term referring to the removal of the fetus usually between the twentieth and twenty-seventh week of gestation, or late in the second trimester. Such procedures are typically performed in instances where the pregnant person's health is jeopardized.

Roe v. Wade: A landmark 1973 US Supreme Court decision that established a limited constitutional right to abortion in the United States. The 7–2 ruling overturned dozens of state laws outlawing abortion that were found to be in violation of the right to privacy provided by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court overturned Roe v. Wade in 2022 with its decision in Dobbs v. Jackson Women's Health Organization.

Therapeutic abortion: An abortion performed (usually in the second trimester) to preserve the health or life of the pregnant person, or when the fetus is determined to be nonviable or have significant congenital abnormalities.

Trimester: One of three periods of a pregnancy. The first trimester lasts approximately twelve weeks from the time of conception. The second trimester lasts approximately from the thirteenth week to the twenty-seventh week. The third and final trimester lasts approximately from the twenty-eighth week until birth.

History

Abortion has been practiced worldwide throughout history. However, it has also frequently been controversial, including in the predominant religious and legal traditions that influenced the development of Western culture and eventually American society. Notably, the Christian church determined abortion to be a sin in the first century CE. In the fifth century, however, Saint Augustine argued that the fetus did not have a soul before “quickening,” or the point at which a pregnant person can first sense movement in the womb (usually between the fourth and sixth months after fertilization). Reflecting that view, abortion until quickening was legal in most of Europe over the next several centuries. Abortion after quickening was often considered homicide, with punishment ranging up to execution. However, limited medical science meant that it was difficult to prove when quickening had occurred, so legal disputes involving abortion were relatively rare. Similar cultural and legal attitudes prevailed in the early United States.

Perspectives on abortion began to shift substantially in the nineteenth century, in part due to advances in medicine. As doctors became increasingly professionalized, many opposed abortion as a dangerous procedure. They recognized that individuals who attempt to induce miscarriages themselves or otherwise self-terminate a pregnancy risk numerous and serious potential complications, including inflammation, infection, hemorrhage, kidney failure, infertility, and an increased tendency toward future miscarriages. In the US, the early anti-abortion movement was spearheaded by the American Medical Association (AMA), which was founded in 1847 and passed a resolution that was sharply critical of abortion in 1859. Following this lead, by the late 1800s every US state had made abortion a felony. Religion also continued to influence views on abortion. In 1869, Roman Catholic pope Pius IX declared abortion at any point of a pregnancy to be murder, a position that would remain popular among many Catholics worldwide over the decades.

Despite the United States’ near-total ban on abortion, which lasted well into the twentieth century, illegal abortions continued, particularly among poor women without access to or knowledge of contraception or other family planning methods. By the mid-twentieth century, the medical establishment increasingly recognized the numerous health problems associated with illegal, unsafe abortions. The growing women's rights and feminist movements also brought more attention to issues of bodily autonomy and reproductive rights. Notably, in 1950 the AMA reversed its official stance on abortion and began to campaign for wider, safer access to the procedure. As abortion procedures were studied and improved, some states began to liberalize their abortion laws. However, others still forbade abortions except for cases in which the life of the pregnant person was threatened.

In 1970 Norma McCorvey, who lived in Texas, where elective abortions were still illegal, felt that the state government was encroaching on her rights by forcing her to either have a child she did not want or to travel to another state where she could obtain a legal abortion. McCorvey decided to sue the state of Texas under the pseudonym Jane Roe to protect her privacy. McCorvey’s attorneys relied on the Ninth and Fourteenth Amendments to frame their case. The Ninth Amendment says that people may be entitled to rights other than those specifically outlined in the Bill of Rights, and the Fourteenth Amendment declares that states are not allowed to "deprive any person of life, liberty, or property, without due process of law." The lawyers argued that Texas state law directly deprived pregnant people of their liberty to terminate an unwanted pregnancy. The attorneys for the state of Texas relied on these same rights—ascribing them, however, to the embryo or fetus, rather than to the pregnant person. They argued that human life begins at conception, and so denying the embryo or fetus the right to life violates the Fifth Amendment.

The case eventually reached the US Supreme Court, which ruled in Roe v. Wade (1973) in favor of a constitutional right to abortion under the principle of right to privacy. Since the justices were unable to determine when human life began, the court was unwilling to ascribe the same rights to embryos and fetuses as they would to persons who had been born. The landmark decision made abortion legal nationwide, subject to certain conditions depending on the stage of pregnancy. The Supreme Court determined that during the first trimester of pregnancy, the government had no legitimate interest in regulating abortions—with one exception: states could require that abortions be performed by a licensed physician in a “medical setting.” During the second trimester, the court held, certain "reasonable" abortion restrictions could be imposed. In the third trimester, when a fetus would usually be viable, states were free to ban abortion completely except when needed to protect the mother's life or health. In a companion case, Doe v. Bolton, “health” was defined as “all factors—physical, emotional, psychological, familial, and the woman's age.” This broad definition of health effectively made it possible to have a legal abortion at any time during pregnancy. 

Roe v. Wade immediately generated much controversy and brought the issue of abortion into the spotlight in American society. Supporters hailed it as an important step forward for women's rights, and eventually credited increased abortion access as a key factor driving improvements in gender equality over the following decades. However, even some proponents of reproductive rights were skeptical of the ruling's legal basis. A common criticism was that the outcome was rooted in judicial activism rather than clear constitutional precedent. Meanwhile, anti-abortion activists attacked Roe on moral grounds and quickly began campaigning to overturn the decision. The backlash had a strong influence on US politics; the Republican Party increasingly embraced anti-abortion views to rally support from religious social conservatives as well as critics of perceived federal overreach, while the Democratic Party generally supported abortion rights.

After Roe v. Wade legalized abortion, the abortion rate in the US initially increased sharply, peaking in 1981. However, the rate then declined steadily over the next three decades. Public health experts attributed this trend primarily to advances in technology and education and increased use of contraception. Opponents of abortion did also find some success with efforts to legally restrict the procedure. The Hyde Amendment of 1976 eliminated federal funding for abortions, and other legislation blocked foreign aid to family planning programs, which conservative critics saw as “pro-abortion.” In Webster v. Reproductive Health Services (1989), the Supreme Court upheld its ruling in Roe v. Wade, but sustained a rule forbidding the use of public facilities or public employees for carrying out abortions. The court also supported a requirement that a test for viability be done before any late-term abortion and ruled that states could ban funding for abortion counseling. Planned Parenthood v. Casey (1992) similarly upheld Roe while weakening some of its provisions, particularly by removing the strict trimester framework and therefore allowing some state abortion restrictions in the first trimester.

Through the late twentieth century and into the twenty-first, much of the debate about abortion continued to revolve around the question of whether an embryo or fetus is a person (or at what point it becomes one). Many opponents of abortion believe that human life begins at conception. Proponents of abortion rights tend to believe that the fetus does not become a person until a point of viability, when it could potentially live outside the uterus. However, there is no universal cutoff point for viability, especially with ever-improving lifesaving technologies. Many experts in the medical and scientific communities place viability around the twenty-fourth to twenty-eighth week of pregnancy, but some place it as early as twenty weeks. To that end, anti-abortion advocates consistently pushed for states to restrict abortions as early as possible. Some also sought to overrule Roe v. Wade legislatively by declaring the unborn fetus a “person” under the Fourteenth Amendment and therefore entitled to its equal-protection guarantees.

A federal bill banning certain late-term abortion procedures was signed into law in 2003 by President George W. Bush. The law, known as the Partial-Birth Abortion Ban Act, prohibited doctors from committing an "overt act" designed to kill a partially delivered fetus even if the pregnant person’s health was at risk or if the child would be born with ailments. It particularly targeted a form of the dilation-and-extraction (D&E) procedure, generally performed in the second or third trimester, known as intact D&E, which involves puncturing the fetus’s skull. Abortion-rights groups argued that the law had overly broad language that could criminalize several safe and common procedures, a possible first step to eventually banning all abortions. The act's constitutionality was challenged, but was ultimately upheld by the Supreme Court in a 5–4 vote. Anti-abortion activists subsequently promoted even tighter restrictions at the state level, and several states passed bans on all forms of D&E.

Abortion remained a hotly debated issue through the 2010s. The Democratic administration of President Barack Obama (2008–17) was generally supportive of reproductive rights, although Obama's signature Affordable Care Act health care reform law maintained the Hyde Amendment prohibition of federal funding for elective abortions or for any health insurance plans that cover abortions. There was also much ongoing legislative activity at the state level, particularly by conservative administrations enacting stricter abortion laws. In 2011 alone, eighty-nine state-level abortion restrictions were enacted. According to one analysis, more than one-quarter of the 1,074 abortion restrictions enacted between 1973 and 2015 were enacted in the five years between 2011 and 2015. In some cases, such laws faced legal challenges in federal court. For example, in June 2016, the US Supreme Court struck down a 2013 Texas law mandating that abortion providers have hospital admitting privileges and that clinics where abortions are performed adhere to the same standards as ambulatory surgical centers.

The future of abortion in the United States was widely questioned after Republican Donald Trump was elected US president in 2016, with former Indiana governor Mike Pence as vice president. Both campaigned as vocal opponents of abortion, with Pence in particular stating his support for a total ban on the practice. One of Trump's first orders after taking office in January 2017 ended all US funding to any foreign non-government health organization that offered abortion counseling or that advocated for the right to seek an abortion. In 2018, Trump's second Supreme Court appointment, Brett Kavanaugh, solidified the court's conservative majority and intensified speculation that the court would overturn Roe v. Wade. A number of states, anticipating the overturn of Roe, introduced new laws limiting abortion, including bans after a certain gestational age or after a fetal heartbeat was detectable, bans on specific procedures, and eliminations of exceptions for cases of rape or incest. 

Abortion Today

According to the Guttmacher Institute, the number of legal abortions performed in the United States fell during the first two decades of the twenty-first century; in 2020, 930,160 legal abortions were performed, down from 1.06 million abortions in 2011 and from 1.31 million in 2000. The Centers for Disease Control and Prevention (CDC) reported that in 2021, the latest year available, the abortion rate was 11.6 abortions per 1,000 women aged fifteen to forty-four, not including illegal abortions. Individuals in their twenties accounted for 57 percent of abortions. About 93.5 percent of abortions were performed at or before thirteen weeks' gestation. About 12.7 percent of those who obtained abortions were married, and 39.3 percent had no previous live births.

The anti-abortion movement continued to gain momentum in the 2020s. President Trump's third Supreme Court nominee, Amy Coney Barrett, was confirmed in 2020, further deepening the court's conservative majority. Alabama, Georgia, Mississippi, Ohio, and Texas were just a few of the states passing unprecedentedly tight abortion restrictions, including bans after six weeks of pregnancy with no exception for cases of rape and incest. A Texas six-week law passed in 2021 also allowed for lawsuits against anyone believed to have aided another in violating the ban. In 2021, the Supreme Court agreed to hear a challenge to Mississippi's fifteen-week restriction.

On June 24, 2022, the Supreme Court ruled 6-3 to overturn Roe v. Wade, ending the constitutional right to an abortion in the United States. A draft opinion of the case, known as Dobbs v. Jackson Women's Health Organization, was leaked to the public in May, though the public outcry in response did little to change the minds of the six conservative justices. Justice Samuel Alito, the author of the opinion, argued that the court had ruled incorrectly in Roe, writing that "the Constitution makes no express reference to a right to obtain an abortion." Thus, the legality of abortion again became a state-by-state matter, with three states—South Dakota, Kentucky, and Louisiana—having earlier passed trigger laws that immediately outlawed most abortions after the ruling. In other states, trigger laws were due to take effect after a waiting period of up to thirty days after the ruling. Several states, such as Georgia and South Carolina, had bans in place before the ruling that were temporarily blocked; following the Supreme Court's decision, those bans could now be enforced. In nine states, the fate of abortion restrictions remained uncertain following the Supreme Court decision and were dependent on the outcome of new legislation or a change in leadership.

In the aftermath of Dobbs decision, antiabortion groups celebrated, while abortion-rights advocates held demonstrations around the US to voice their anger over the historic ruling. Meanwhile, abortion clinics in many states scrambled to help patients before trigger laws went into place, and several major corporations announced new policies to cover travel expenses for employees seeking abortions in other states. Given the passions on both sides of the issue, the debate over abortion was expected to continue for the foreseeable future. Shortly after the ruling, in July, President Joe Biden issued an executive order calling on the Department of Health and Human Services (HHS) to take such actions as expansions of reproductive rights awareness as well as emergency contraceptives access. It also established the Interagency Task Force on Reproductive Healthcare Access. That same month, the HHS put out guidance designed to clarify emergency medical care rights, though that guidance began being challenged and even blocked by federal judges in some states such as Texas. Around the same time, it was also announced that the company Perrigo had filed a request for the Food and Drug Administration (FDA) to consider approval of its daily birth control pill for sale over the counter rather than by prescription; the FDA ultimately agreed to review the proposal and set up a committee. To further secure access to reproductive health care, Biden issued another executive order in August providing support for those who must travel out of state to receive care, ensuring health-care provider compliance with federal anti-discrimination law, and instituting research into the impact of newly restricted access.

During the 2022 midterm elections, voters supported abortion rights in the six states with abortion-related ballot questions. In California, Michigan, and Vermont, voters approved state constitutional amendments that established abortion rights, while voters in Kansas, Kentucky, and Montana rejected This was true even in red states such as Kansas, where voters rejected a proposed state constitutional amendment that would have explicitly eliminated the right to an abortion.

By the end of 2023, fourteen states enforced total bans on abortion and seven other states restricted access in ways that would have been unconstitutional before the Dobbs decision, according to the Guttmacher Institute. The institute also reported that twenty-two states and the District of Columbia passed measures to protect abortion access. That November, Ohio voters approved an amendment to the state constitution that enshrined abortion rights to the point of fetal viability. With the ballot initiative's passage, Ohio lawmakers' ban on most abortions after about six weeks of pregnancy could not take effect in the state.

In December 2023, the Supreme Court announced that it would hear its first abortion-related case since Dobbs: a review of two cases involving mifepristone, a drug first approved by the FDA in 2000 for use in medication abortions, which by 2022 accounted for 54 percent of all abortions in the US. In 2016, the FDA made it easier for patients to access mifepristone by allowing doctors to prescribe it via telemedicine appointments and in 2021, it allowed patients to receive it by mail. In its review, the Court assessed whether the Alliance for Hippocratic Medicine had standing to sue the Food and Drug Administration (FDA), whether the FDA's decisions to expand the approved use of mifepristone in 2016 and 2021 were "arbitrary and capricious," and whether a lower court's injunction on the FDA's actions was appropriate. In June 2024, the Supreme Court voted unanimously that the plaintiffs did not have the standing to sue the FDA, thus preserving access to mifepristone.

In January 2024, a panel of the Fifth US Circuit Court of Appeals unanimously ruled that, in Texas and other states that had banned abortion, the federal government cannot force emergency room doctors to perform abortions to stabilize their patients under the guidance issued by the Biden administration regarding the federal Emergency Medical Treatment and Active Labor Act (EMTALA). The circuit court ruled upheld an August 2022 lower court ruling that EMTALA did not specify guidelines for doctors facing conflicts between the health of the pregnant person and the fetus and that doctors should thus follow Texas's abortion ban, which includes exceptions "to save the mother's life or prevent serious bodily injury in some cases," according to Brendan Pierson for Reuters. In a separate 2023 court case, a group of Texas physicians and patients sued the state to make sure patients with complicated pregnancies and the doctors treating them were exempt from the ban, arguing that the state law was unclear regarding which conditions qualified as medical emergencies.

In July 2024, the Supreme Court's decision in Moyle v. United States reinstated EMTALA protections for pregnant women having a medical emergency. The Court's ruling did not settle whether state abortion bans override federal law, however. Following the ruling, the Biden-Harris administration issued a statement directing emergency room physicians to perform emergency abortions when needed to stabilize a pregnant woman's health.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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