Mises Wire

Before Roe v. Wade, Abortion Had Always Been a State and Local Matter

In recent decades, anti-abortion advocates have increasingly claimed that the US Constitution provides protections to babies in utero via the 14th Amendment. That is, the Amendment would guarantee that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This argument was used by the state of Texas which claimed in the case of Roe v. Wade that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.”

The Supreme Court rejected this claim, but not on the grounds that the 14th Amendment did not potentially apply. The court simply denied that a fetus is a person. Furthermore, the court admitted that if personhood were legally established in this case, then the 14th Amendment indeed would apply. 

Consequently, anti-abortion activists have focused on establishing the personhood of humans in utero and of asserting that the 14th Amendment ought to apply even without an explicit declaration of personhood. Both Mike Huckabee and Ted Cruz repeated this view during the 2016 presidential primary season.

Some commentators have even gone so far as to suggest that babies in utero enjoyed Constitutional protections at some point in the past, as was the case with Michael New in National Review when he reported on a 2012 presidential primary debate: 

During the [Palmetto Freedom Forum on September 5, 2011], Princeton professor Robert P. George asked all five candidates whether they would support legislation, under Section Five of the 14th Amendment, that would restore legal protection for unborn children.

It’s unclear as to how closely New is quoting George here. But, the use of the phrase “restore legal protection” is problematic because babies in utero did not enjoy legal protections under the Constitution before Roe v. Wade, and one cannot restore that which never existed. Certainly, one can plausibly claim that these babies have always enjoyed rights in the moral sense. It’s also entirely possible that some state constitutions explicitly addressed the matter. And we know many state statutes did. But in the legal sense, it is clear there was no protection under the US Constitution. 

This idea of “restoring” lost rights to the unborn via federal law has been further extended into the idea that the US Constitution as originally imagined provided these rights. 

This, however, does not reflect the legal or ideological reality before Roe v. Wade when abortion was overwhelmingly considered a state and local matter. 

By attempting to apply the 14th Amendment to abortion cases, anti-abortion advocates are essentially agreeing with the Court that federal law ought to apply to abortion matters, in spite of them always having been state and local matters in the past. 

Even among jurists who oppose abortion, this federalization of abortion laws has seemed questionable at best. 

Most notably among those who hold this decentralist view, perhaps, is the late Antonin Scalia who asserted that on the matter of abortion “the Constitution says absolutely nothing about it.” 

Scalia’s view was that abortion was clearly the domain of the states and that abortion ought not be considered a federal matter

I will strike down Roe v. Wade, but I will also strike down a law that is the opposite of Roe v. Wade. You know, both sides in that debate want the Supreme Court to decide the matter for them. One wants no state to be able to prohibit abortion and the other one wants every state to have to prohibit abortion, and they’re both wrong ... that’s how I read the Constitution.1

Abortion Before Roe

The actual history of abortion in the United States supports Scalia’s view. 

The legality of abortion has often varied, depending on the era and state in which one lived. 

Some anti-abortion advocates today imagine that abortion was rare and taboo prior to Roe vs. Wade. The National Right to Life Committee (NRLC) says exactly this in its “abortion timeline” where it states “there is evidence of a few rogue doctors and midwives performing abortions in the U.S. as far back as the 1850s.” The timeline itself does not begin until 1959, thus implying that no notable legal or legislative battle took place before the mid-twentieth century. 

The NRLC’s version of the past, however, is very much at odds with the actual legislative history in which both abortion — and legislation impeding it — were widespread during the nineteenth century. What was different about these battles, however, was that they were waged at the state and local levels. 

Going back to the seventeenth century, prohibitions could be found, but as Janet Farrell Brodie writes in Contraception and Abortion in Nineteenth-Century America: “Convictions for abortion, however, were rare. Middlesex County in Massachusetts had only four convictions for attempted abortion between 1633 and 1699.” 

Brodie notes that technology and public knowledge related to abortion had changed significantly over time: 

How Americans learned about ways to control or prevent pregnancy was radically transformed in the decades after the 1830s by public lectures and new genres of literature giving contraceptive advice.

In consumer-driven America, this led to growing industries making contraceptive and abortion services more widely available. Brodie continues: 

Abortion instruments, like drugs, were readily available through the mails or from a variety of retail establishments, particularly drugstores, and wholesale druggists’ catalogues carried a considerable variety of styles and models in uterine sounds and dilators. Newspapers regularly carried advertisements for abortion-inducing drugs.

By mid century there was a growing number of professional abortionists, and not only in large cities, as W.M. Smith, a physician in the small farming town of Atkinson, Illinois (population 300) noted in 1874. ... Smith estimated that his town had one abortion for every ten live births.

Just how widespread was abortion? Not surprisingly, nineteenth-century statistics on the matter are sparse. But, as James Mohr writes in Abortion in America: the Origins and Evolution of National Policy, a number of contemporary researchers concluded that numbers were quite high by historical standards:

Dr. P.S. Haskell, in a report to the Medical Association of Maine ...”suggest[ed] a ratio of one abortion for every six live births at a minimum.” ... Horace Knapp wrote in 1873, “There can be no doubt that more children are destroyed annually in their mother’s womb than are born alive.” ... By the of the decade of the 1870s, medical writers began to suggest earlier estimates had been, if anything, too low. In 1878 physicians testifying in the murder trial of an abortionist in southern Illinois set the ratio at 25 percent of all pregnancies .... [this was followed by] still another upward revision of the Storer and Heard ratio of one abortion in every five pregnancies made by the Michigan State Board of Health two years later.

Physicians in Michigan, according to a special committee of the Board of Health, were directly aware of “seventeen abortions to every hundred pregnancies” and were also convinced that at least “as many more ... never come to the physician’s knowledge. ... Occasionally during the 1880s a physician might estimate an abortion rate as low as “ten percent of all pregnancies,” but most writers arrived at calculations of at least as high as the Michigan rate of one-third. A doctor who had practiced in Philadelphia for twenty-five years “stated as his firm conviction that more than one-half of the human family dies before it is born.” 

Some of these figures are comparable to modern-day abortion ratios reported by the Guttmacher Institute. During the 1990s — a high-abortion period — ratios reached 25 abortions per 100 pregnancies. In 2014, after several years of decline, the ratio fell to 18.8 per 100 pregnancies. 

Seeking better confirmation of his historical statistics, Mohr looked to the birthrates of the time:

The record of birthrates in the United States during the nineteenth century underlies all the foregoing contemporary evidence and offer a final reason to believe that the United States experienced a great upsurge in the incidence of abortion that began around 1840 and continued roughly through the 1870s. The data are circumstantial to be sure, but striking nonetheless, especially when combined with the conclusion of modern demographers about the population trends in other societies ... the average American women bore 7.04 children in 1800; 3.56 by 1900. The steepest decennial drop in this long decline, which had been a slight trough the first three decades of the century, occurred between 1840 and 1850, exactly when abortion information, abortion services, and abortion itself came out in to the open. 

The Legislative Response 

Faced with what was apparently a period of considerable growth in abortion, many social reformers attempted to implement legislative restrictions. 

These legislative changes, however, were done at the state level, and were often accompanied by efforts to regulate medical procedures and facilities overall. It was the newly organized American Medical Association that led the charge in 1857. In When Abortion Was a Crime, Leslie Reagan notes that “Through the 1870s, regular physicians across the country worked for the passage of new criminal abortion laws. In securing criminal abortion laws, the Regulars won recognition of their particular views as well as some state control over the practice of medicine.”2

In spite of this nationwide drive for abortion restrictions, federal law remained generally untouched. Notable exceptions were the so-called Comstock Laws which prohibited the use of the US Postal Service to send abortifacients through the mail. Note, however, that federal authority ended with the federal government’s postal service. Any direct prohibition of abortion was seen as having to originate with state laws. 

And, when state laws were passed, enforcement was haphazard, to say the least. Reagan continues: 

The underlying structure of medicine and the law at the time of the century fostered the practice of abortion everywhere. When the Chicago Times focused on the business of abortion, it ignored the exception in the state criminal abortion law that allowed physicians to perform therapeutic abortion. The law itself contributed to the medical practice of abortion. The Illinois abortion statute exempted “any person who procured or attempts to produce the miscarriage of any pregnant women for bona fide medical or surgical purposes.” What constitutes a bona fide reason, however, was left undefined.

By the 1890s, anti-abortion doctors were again attempting to re-invigorate a movement which some saw as faltering again. 

The second wave, as described by Reagan, also focused again on state and local laws: 

The new antiabortion crusade pursued a three-pronged strategy. Medical efforts focused, first, on reeducating American women and then public about the immorality and dangers of abortion. This cultural campaign took place in physicians’ offices and patients’ homes during individual encounters as well and in public group forums. Second, antiabortion physicians worked internally within medical societies to eliminate abortionists from the medical profession. Third, the antiabortion campaign moved its focus from state legislatures to the local level, where the new laws were enforced. The new activists sought an alliance with the state officials in enforcing the law. Antiabortionists identified an entire group of practitioners they believed responsible for illegal abortion: immigrant midwives. The attempt by specialists in obstetrics to restrict their competitors was the most visible and public aspect of the new campaign. The purging of the profession was treated as a private problem...

Abortion was not a political issue in the sense that it has become today; it neither played a role in national presidential elections no reached the U.S. Supreme Court. Yet during the Progressive Era, abortion became a contested issue of interest to politicians and target of new legislation at both the local and state levels.

Recognizing the limitations of legislation to change what was widely-accepted behavior, the reformers focused often on non-state solutions. 

Nor was victory assured. While some doctors stressed the medical risks of abortion, many doctors nevertheless saw opposition to abortion as the “Christian duty” while some admitted that their patients were not necessarily open to what physicians had to say. As one Colorado doctor of the time admitted, “Some people ... will laugh at the doctor for telling them that it is murder to kill an unborn infant.”3

The Federalization of Abortion 

By the mid-twentieth century, the cultural and professional factors that had driven the anti-abortion movement in the nineteenth century began to disappear. The AMA and its physicians no longer pushed for continued restrictions on abortion as they once had. Pro-abortion activists began to successfully push for the repeal of state-level restrictions. 

Anti-abortion activists experienced a loss of influence with both cultural and political institutions that had driven the anti-abortion movement two generations earlier. 

The Pew Research Center provides a brief history of the turning point: 

 In 1967, Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By 1970, 11 additional states had made similar changes to their abortion laws and four other states — New York, Washington, Hawaii and Alaska — had completely decriminalized abortion during the early stages of pregnancy.

Even into the early 1970s, abortion continued to be a state-level issue. Roe v. Wade changed all that. 

When the Supreme Court handed down the Roe decision in 1973, it took abortion matters out of the states and placed them into the hands of federal law-enforcement agencies, federal courts, and Congress in a way that had never been done before. As is the usual modern practice in American politics, this revolutionary rewriting of the Constitution was done without a Constitutional amendment, and thus cut short any national debate that was taking place in state legislatures and local institutions.

Pro-abortion advocates, of course, are happy with this status quo because they are on the winning side — for now. Unfortunately, by nationalizing abortion politics, the Court also raised the stakes in each presidential election, so that now every national election is seen as a referendum on which groups will control the Supreme Court and whether or not one side will rewrite the federal laws that are then imposed on 320 million people. 

An American peering into the future from the year 1910 would likely look upon such a state of affairs with amazement. He or she might think “robbery and murder are matters for state and local law, but abortion laws require the Supreme Court and Congress?” It might appear to this observer that Americans had become totally incapable of self-government by the twenty-first century. This assessment would probably be correct. 

  • 1Antonin Scalia, Remarks at the Pew Research Center Forum, A Call for Reckoning: Religion and the Death Penalty, Session Three (Jan. 25, 2002).
  • 2“Regulars” were physicians that were usually part of the AMA mainstream, as opposed to “irregular” physicians who did not have credentials from the AMA or similar organizations. 
  • 3See Reagan, page 84.
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