A Legal History of Abortion in America


A.    ≤ 1900
1. Ancient Law (5th BC-4th Cent. AD) Ancient Greeks via Aristotle thought of the “soul” as “mover” of the body. This substance dualist view treated the quickening as the point at which distinctly human life begins. Abortion is taboo/ condemned in several ancient sources (Sibyline Oracles [6th BC], Hippocratic Oath [5th cent. BC], Sentences of Pseudo-Phocylides [50BC-50AD], 1st Enoch 1–2 cent BC, Josephus [1st cent. AD].
2. Medieval Law (5th-16th cent.) the quickening view dominates as it’s widely agreed upon among Christian, Jewish and Muslim thinkers (though it’s not universal).
3. British Common Law (17th-mid. 18th century) Abortion is taboo, and while not universally permitted it is widely allowed prior to either  40 days gestation or to the quickening as fetology at the time was not clear about when human life began. It was widely thought life began only when mother detects fetal movement (quickening), or when soul infused the body (ensoulment), although, abortion was still considered taboo even before the quickening See, Marvin Olasky (Abortion Rites).


B.  20th Century
1. Lochner v New York (1905) NY Worker’s Union case. Court ruled for individual liberty on basis of “substantive due process.” This ruling was decried by later Supreme Court verdicts (1937>) for reading economic theories into the constitution; instead, civil rights are the more proper domain for these kinds of rulings.
2. State courts (1850-1960) All states pass laws banning abortion. A common exception is in case of mortal threat to the mother.
3. Sherri Finkbine (1962) Unwittingly taking Thalidomide (A.K.A., “monster maker”), Finkbine carries a deformed child in utero. Seeking legal abortion she’s denied in U.S. raising sympathy for abortion in the U.S.
4. State Courts (1962-1973) 17 states pass/amend laws opening abortion to cases of rape, health risks, and fetal damage. Four states, AK, HI,NY,WA, allow it at woman’s and doctor’s discretion. Only PA kept full abortion ban.
5. Griswold v Conn. (1964) Married couples have a right to use contraceptives. Privacy is an implied constitutional right.
6. Eisenstadt v Baird (1971) Singles (non-married & non-couples) have right to contraceptives. Right to privacy is extended.
7. Roe v Wade (1-22-1973) Legalized Abortion on demand by way of right to privacy. Fetus’s are declared “non-persons,” not covered by the 14th Amendment of the Constitution.
8. Doe v Bolton (1-22-1973) Expands abortion legally to include any distress as a health reason, incl. “Psych. Distress”
9. Planned Parenthood v Danforth (7-1-1976) Supreme court overturns a Missouri law requiring husband’s consent for abortion.
10. Beal v Doe (1-11-1977) States aren’t required to pay for non-therapeutic (medically unnec.) abortions by Medicaid
11. Belotti v Baird (7-2-1979) MA ruling striking down parental consent
12. Harris v McRae (6-30- 1980) Supreme court upholds Hyde Amendment (Social Securities act) restricting Medicaid funding for abortion to cases of life endangerment, rape, or incest.
13. H.L. v Matheson (3-23-1981) States may require doctors to inform the parents of a teenager’s planned abortion.
14. Thornburgh v Amer. Coll. Of Obst. & Gyn. (6-11.1986) Supreme court strikes down the PA Abortion Control Act (1982) which required two consenting doctor’s opinions and reading of informational packets before abortion would be granted.
15. Webster v Reproductive Health Services (7-3-1989) Affirmed that, “The life of each human being begins at conception.” States have regulatory rights but can’t outlaw abortion. These include banning use of public facilities and employees to perform abortions. Also states must test for viability at 24 weeks of gestation.
16.  Hodgson v MN (6-25-1990) Minnesota law is upheld requiring parental consent for abortion.
17.  Planned Parenthood v Casey (6-29-1992) State rights extended to include making laws requiring counsel, parental consent, and waiting periods so long as they do not involve “undue burden” or “substantial obstacle” to the mother.


C.    21st Century
1. Stenberg v Carhart (6-28- 2000) Nebraska ban on partial birth abortion is struck down invalidating similar laws in 30 other states.
2. Partial-Birth Abortion Act (11-5-2003) GW Bush signs law prohibiting certain abortion procedures, namely, partial birth abortion.
3. McCorvey v Hill (2-22-2005) Norma McCorvey (Jane Roe) sought to overturn the ruling of Roe v. Wade. The Supreme Court upheld the decision of Roe v. Wade.
4. Gonzalez v Carhart, & v Planned Parent. (4-18-2007) The ban on partial birth abortion is upheld, departing from past rulings that struck down any such bans if they did not carry exceptions for protecting women’s health (generally).
5. Ultrasound Act (2007-pending) Passed in various forms in 12 states. This act requires ultrasound before giving an abortion.
6. Protect Life Act (10-13-2011) Prevents federally funded hospitals from having to provide abortions and prevents insurance providers from covering abortions.
7. Pain Capable Unborn Child Protection act (2012) Passed in several states including GA, NE, AL, KS, and ID banning abortion after the 20th week of pregnancy but it’s allowed if the mother’s life is in danger.
8. Arkansas Human Heartbeat Protection act (1-31-2013) Arkansas law which states that a test must be done and if a fetal heartbeat is detectable the abortion cannot be done. Puts fetal protection between 6 and 12 weeks.
9. Human Heartbeat Detection Act (3-27- 2013) North Dakota law which states the child cannot be aborted once fetal heartbeat is detectable and identifies this as 6 weeks. Most time/development restrictions set the cut-off at 20 wks or later.
10. Gosnell vs. PA (5-13-2013) Kermit Gosnell convicted of 3 counts of murder aborting late term babies ex utero. Touted as an ex. of media bias: He is the most prolific mass murdered in US history yet major media barely reported it
11. Born Alive Bill (4-30-2013) Bill passes in FL protecting babies against infanticide who were born alive in botched abortions.
12. HB2/SB5 Omnibus Abortion Bill (7-13-2013) TX abortion bill passed which banned most abortions after 20 wks, requires oversight for the 2nd dose of RU486. Also requires abortion service providers to have admitting privileges with a local hospital and to meet certification requirements for emergency care. Allegedly, its implementation would close all but 8 providers in TX. It’s currently being litigated federally.
13. Fetal Dismemberment Bill (4-17-2015) Bill passed in Kansas which bans dismemberment abortions (typical of 2nd and 3rd trimester).


About intelligentchristianfaith

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This entry was posted in Abortion Cases, Abortion Laws, Abortion Practices, Contraception Practices, Terms and Definitions and tagged . Bookmark the permalink.

5 Responses to A Legal History of Abortion in America

  1. Pingback: A Legal History of Abortion in America | World4Justice : NOW! Lobby Forum.

  2. Chris Griffin says:

    The mass slaughter of prenatal children is the most horrific and vile perversion ever conjured into existence by our species.

    All five million unborn babies alive in America today can be killed tomorrow, legally and unstoppably, on the whim of their mothers
    Who can comprehend the depths of intolerable evil of this vicious slaughter in America today? The government approves it and funds it. One million mothers pay blood money to choose it every year. Medical professionals execute it. The mothers commit murder and the babies are murdered with little resistance from Americans.


    Chris Griffin, Charlotte NC, chrisgriffin523@gmail.com


  3. You need to read up more on this topic, as there are errors. Abortion was not completely legal prior to quickening. I refer to Joseph Dellapenna’s Dispelling the Myths of Abortion History, a book that every pro-lifer interested in history should read.

    I would also add that quickening is a uniquely British concept. Nobody outside the British isle care about it. Ensoulment was the principle idea that was upheld to criminalize abortion as homicide, and it was believed– at least in France– that ensoulment occurred when the body was formed– so at about 40 Days.

    I have my own history website at http://www.historyoftheunborn.com and my facebook page at http://www.facebook.com/ProLifeHistory


    • Hey, thanks for the feedback. I’ll look into that source you recommended, Dellapenna’s book.

      Regarding ensoulement and the quickening, my impression was that ensoulment was thought to be identified by felt movement of the baby (the quickening). The 40 day mark was supposedly the date in which the quickening occurred. Am I mistaken?


    • I made some edits consistent with your recommendations (see the British Common Law section).

      Looking over the post, the chart isn’t specifying that British common law is the only law-code operating in the world. It is instead tracing the dominant legal history behind U.S. abortion-policy, and British Common Law was a bigger influence in U.S. governance than was French, German, or any other European law code.

      Did you see any other errors or problems that I should look into?


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