The History of Abortion Rights in America: It Was Legal First
Quick Answer
What is the history of abortion rights in America? Abortion was legal under American common law until "quickening" (fetal movement, roughly 4-5 months) for most of the country's early history. States began criminalizing abortion in the mid-to-late 1800s, largely at the lobbying of the newly formed American Medical Association. Abortion remained illegal in most states until Roe v. Wade in 1973, which established a constitutional right to abortion under the 14th Amendment. Planned Parenthood v. Casey (1992) modified but upheld Roe. In June 2022, Dobbs v. Jackson Women's Health Organization overturned both decisions, eliminating the federal constitutional right and returning the question to individual states.
The history of abortion rights in America is not a straight line from restriction to freedom. It runs the other direction first. Abortion was broadly legal in early America, became illegal across most of the country over the course of a few decades in the late 1800s, was legalized again by the Supreme Court in 1973, and was eliminated as a federal right in 2022. Understanding where the law is now requires understanding how it got here, which is a longer and more complicated story than most of the people arguing about it acknowledge.
Early America: Legal Until Quickening
Under English common law, which formed the legal foundation of early American jurisprudence, abortion was not a crime before "quickening," the point at which the pregnant person could feel fetal movement, typically around 16 to 20 weeks. This was not a loophole or an oversight. It was the established legal framework. Abortion before quickening was considered unremarkable enough that it was advertised openly in newspapers and practiced by midwives and herbal practitioners throughout the colonial and early national period.
The first American laws restricting abortion appeared in the 1820s and 1830s, and they were narrow: they targeted the use of dangerous abortifacient drugs and primarily addressed the harm to the pregnant woman rather than a philosophical position on fetal life. Connecticut passed the first such law in 1821. New York followed in 1828. Even these early laws typically maintained the pre-quickening exception from common law.
The Criminalization Campaign: 1850s to 1880s
The systematic criminalization of abortion across American states happened quickly, in roughly a thirty-year period, and was driven primarily by one institution: the American Medical Association, founded in 1847. The AMA's campaign against abortion was intertwined with the broader project of professionalizing medicine and eliminating competition from midwives, homeopaths, and irregular practitioners who provided most abortion services at the time. Making abortion illegal would drive it out of the hands of competitors and into the hands of licensed physicians, who would decide when it was medically appropriate.
By 1880, abortion was illegal in nearly every state. By 1900, there were no states where abortion was broadly legal. The laws varied in their specifics but were consistent in their outcome: abortion went underground. It did not stop. It became dangerous.
The Comstock Act of 1873 added a federal dimension to the criminalization. Named for Anthony Comstock, a postal inspector and moral crusader, the law banned the mailing of "obscene" materials, which it defined to include contraception, abortion-related information, and anything Comstock personally found objectionable. Physicians could not mail information about reproductive health. Activists could not distribute literature. The law remained in effect, in various forms, for decades.
The Underground Era
Illegal abortion in America was not rare. Estimates from the mid-20th century, including those from the Kinsey Institute, suggest hundreds of thousands of illegal abortions were performed annually in the United States throughout the 1940s and 1950s. The CDC has estimated that unsafe illegal abortions caused the deaths of approximately 5,000 women per year before Roe, though estimates vary by source. What is consistent across all estimates is that women with money could access safer illegal procedures through discreet physicians, and women without money could not.
In Chicago, a group of women organized in 1969 into what became known as the Jane Collective, formally the Abortion Counseling Service of Women's Liberation. They began by connecting women with abortion providers and eventually trained themselves to perform procedures. Between 1969 and 1973, the Jane Collective performed an estimated 11,000 abortions. In 1972, seven members were arrested. Charges were dropped after Roe was decided. The Jane Collective is one of the clearest examples of what happens when people decide that an unjust law is not a sufficient reason to let people die.
Roe v. Wade (1973)
The legal challenge that became Roe v. Wade originated in Texas, where a woman challenging the state's near-total abortion ban under the pseudonym Jane Roe sued Dallas County District Attorney Henry Wade. The Supreme Court heard the case and in January 1973 ruled 7-2 that the Constitution protected a woman's right to choose to have an abortion, grounded in the right to privacy implied by the 14th Amendment's due process clause.
Justice Harry Blackmun wrote the majority opinion, which created a trimester framework: in the first trimester, the state had no compelling interest and could not restrict abortion; in the second trimester, the state could regulate abortion to protect maternal health; in the third trimester, after fetal viability, the state could restrict or ban abortion except where necessary to protect the life or health of the pregnant person. The decision was joined by Chief Justice Warren Burger and Justices Douglas, Stewart, Powell, Brennan, and Marshall. Justices White and Rehnquist dissented.
The immediate practical effect was the legalization of abortion across the country. The immediate political effect was the beginning of the organized anti-abortion movement, which spent the next five decades working systematically to reverse the decision.
The Decades Between: Hyde, Casey, and TRAP Laws
The anti-abortion movement's strategy after Roe operated on multiple tracks simultaneously. In Congress, Representative Henry Hyde of Illinois attached a rider to the annual Health and Human Services appropriations bill in 1976 banning the use of federal Medicaid funds for abortion except in cases of rape, incest, or life endangerment. The Hyde Amendment, as it became known, was not a law in the traditional sense. It was a rider renewed annually. It has been renewed every year since 1976. Its practical effect was to make abortion financially inaccessible to women on Medicaid, who are disproportionately poor, young, and women of color.
Planned Parenthood v. Casey (1992) brought the most significant modification to Roe before Dobbs. The Supreme Court upheld Roe's core holding that women had a constitutional right to abortion before viability, but replaced the trimester framework with an "undue burden" standard: states could regulate abortion as long as they did not place an undue burden on access. The decision, written by Justices O'Connor, Kennedy, and Souter, also gave states more latitude to regulate pre-viability abortions and allowed a 24-hour waiting period and parental consent requirements that Roe had not contemplated.
Following Casey, anti-abortion advocates developed a strategy of passing Targeted Regulation of Abortion Providers laws, known as TRAP laws, at the state level. These laws imposed requirements on abortion clinics, admitting privileges at nearby hospitals, surgical center building standards, mandatory ultrasounds, waiting periods, and specific hallway widths, that were justified as protecting patient safety but were designed to close clinics. Whole Woman's Health v. Hellerstedt (2016) struck down Texas TRAP laws as imposing an undue burden, but the strategy continued in other states.
The longer game was judicial appointments. The Federalist Society, founded in 1982, and the Heritage Foundation built the infrastructure for identifying, vetting, and placing conservative federal judges, with the specific goal of building a Supreme Court majority that would overturn Roe. Project 2025, which our Project 2025 post covers in detail, is among the most explicit recent expressions of this project applied to federal policy.
Dobbs v. Jackson Women's Health Organization (2022)
The case that overturned Roe originated in Mississippi, which had passed a law banning most abortions after 15 weeks, directly challenging Roe's viability standard. The Supreme Court, in a majority opinion written by Justice Samuel Alito and joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett, held in June 2022 that the Constitution does not confer a right to abortion, that Roe and Casey were wrongly decided, and that the authority to regulate abortion belongs to the individual states.
Chief Justice Roberts concurred in the judgment but would have stopped short of overturning Roe entirely, upholding the Mississippi 15-week ban without reaching the broader question. Justices Breyer, Sotomayor, and Kagan dissented, writing that "whatever the exact scope of the coming laws, one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens."
Dobbs triggered "trigger laws" that had been passed in advance in anti-abortion states, taking effect automatically when Roe was overturned. Within weeks, abortion was banned or severely restricted in approximately half the country. By the end of 2022, 13 states had near-total bans in effect. Access to medication abortion, which accounts for more than half of all abortions in the United States, became the next major battleground.
Where Things Stand
The post-Dobbs landscape is a patchwork. Roughly half of U.S. states have significant restrictions or near-total bans. The other half have protected or codified abortion rights to varying degrees. People in restricted states travel to access-protected states in increasing numbers. Medication abortion, which can be prescribed via telehealth and mailed from states where it is legal, has become a significant part of how people in restricted states obtain abortions.
The legal fights are ongoing. The Satanic Temple has filed multiple lawsuits in various states arguing that abortion restrictions violate their members' religious freedom, using the same Religious Freedom Restoration Act that anti-abortion advocates have relied on for decades. Their argument: TST holds as a sincere religious belief that the body is inviolable and subject to one's own will. Forced waiting periods and mandatory counseling that contradicts medical evidence violate that belief. The full breakdown of how that legal strategy works is in the What Is the Satanic Temple? post.
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Frequently Asked Questions
Was abortion always illegal in America?
No. Under English common law, which governed early American legal practice, abortion was not a crime before "quickening," the point of felt fetal movement at roughly 16 to 20 weeks. Abortion before quickening was openly advertised and practiced in the colonial and early national period. Systematic criminalization happened in the mid-to-late 1800s, driven largely by the American Medical Association's campaign to professionalize medicine and eliminate competition from midwives and alternative practitioners. By 1880, abortion was illegal in nearly every state.
What did Roe v. Wade actually say?
Roe v. Wade (1973) was a 7-2 Supreme Court decision holding that the Constitution protected a woman's right to choose to have an abortion, grounded in the right to privacy implied by the 14th Amendment's due process clause. The decision created a trimester framework: no state restriction in the first trimester, regulation to protect maternal health in the second trimester, and the ability to restrict or ban abortion after fetal viability in the third trimester, except when necessary to protect the pregnant person's life or health. The decision was written by Justice Harry Blackmun.
What is the Hyde Amendment?
The Hyde Amendment is a legislative rider attached to annual federal appropriations bills since 1976 that bans the use of federal Medicaid funds to pay for abortions except in cases of rape, incest, or life endangerment. It is not a permanent law but has been renewed every year for nearly five decades. Its practical effect is to make abortion financially inaccessible to women on Medicaid, who are disproportionately low-income, young, and women of color. People with private insurance or the ability to pay out of pocket are not affected.
What did the Dobbs decision do?
Dobbs v. Jackson Women's Health Organization (2022) was a 5-4 Supreme Court decision that overturned both Roe v. Wade and Planned Parenthood v. Casey, eliminating the federal constitutional right to abortion. The majority opinion, written by Justice Samuel Alito, held that the Constitution does not confer a right to abortion and that states have the authority to regulate it as they choose. The decision triggered pre-passed "trigger laws" in anti-abortion states, and within months of the decision, roughly half of U.S. states had banned or severely restricted abortion access.
Is abortion completely banned in some states?
Yes. Following Dobbs, multiple states have enacted near-total abortion bans with very limited exceptions. The specific laws and exceptions vary by state. Some states ban abortion from the moment of fertilization; others ban it after cardiac activity is detectable (often called a "heartbeat bill," typically around six weeks, before many people know they are pregnant); others ban it after 12 or 15 weeks. As of 2024, roughly 14 states have near-total bans. Legal challenges to specific state laws are ongoing in multiple states.
What is medication abortion and how has it been affected?
Medication abortion uses two drugs, mifepristone and misoprostol, taken in sequence to end a pregnancy. It accounts for more than half of all abortions in the United States. The FDA approved mifepristone in 2000 and updated its rules in 2021 to allow it to be prescribed via telehealth and dispensed by mail-order pharmacies. Following Dobbs, some states banned medication abortion; others explicitly protected it. Access to medication abortion via telehealth from states where it remains legal has become a significant pathway for people in restricted states. Federal court challenges to the FDA's approval of mifepristone have been filed but have so far not succeeded in removing it from the market.
