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Abortion Rights: A Legal History

On June 24th, 2022, USA, the land of the free, stripped its women of their rights over their bodies, binding them in the shackles of the state's obligations that they refuse to receive, and imposing the beliefs of the rulers over the ruled. Reproductive rights, which give individual freedom relating to reproduction have been highly contested in America for the last five decades, inducing a number of lawsuits and blurring the line of political division. This contention comes on the ground that it seeks to bid the life of an unborn fetus against the life of living breathing women, largely because the religion of Christianity regards a fetus to have a life from the moment it is conceived, and killing it would make it no less than a gruesome murder.


The assault on abortion rights hasn’t always been motivated by religious sentiments, but by the fact that in the 1800s there existed absolute no restrictions on abortions, causing an increase in the number of abortions being done by unmarried women who bore a child out of wedlock, or by married women, both of which was disapproved by the traditionalist. The first legislation regulating the increased number of abortion was passed in 1821 in Connecticut, but by the early 1900s, this common practice considered to be a private matter concerning women were carved into strict legislation in every state of the US. Physicians in the US felt disregarded. Often disregarded for its unreliability, well-trained physicians had a hard time catching up with the amateurs (untrained physicians, healers, midwives) who were often preferred for conducting an abortion largely because well-trained physicians considered it to be a violation of their Hippocratic Oath. However, it was also a loss of business and power over the practice and profession, which could be controlled only by outlawing abortion practice altogether. This movement, often regarded as a crusade to criminalize abortion was led by Dr. Horatio Robinson Storer, a Harvard Medical School graduate. Born as a utilitarian, he converted to Catholicism in the 1880s. Instilled by religious values, he campaigned to muster public opinion and lobbied the American Medical Association (AMA) to criticize abortion and further professionalize the industry. He was so successful in convincing the lawmakers that even when he left the movement to treat his deteriorating health, his ideas caused the establishment of anti-abortion statutes in 40 states by 1880.


With the abortion statute in place, what followed was the tussle between what was regarded as a private matter just concerning the person, or a public matter requiring state intervention. The question of privacy was not well stated in the American constitution, with a far-fetched reference to it only in the fourth amendment, where even the word “privacy” was not used. It was the fourteenth amendment of 1868, that recognized no state could deny a person life, liberty, or property without due process of law. It was the claim of liberty that paved the way for the establishment of privacy, with no sure exactness of what it constituted but a heavy value attached to it concerning the lives of a number of people. Privacy as a part of liberty claim was first argued back in 1923, in Meyer vs Nebraska case, where the plaintiff was convicted for teaching German to a 10-year-old under the Nebraska statute that outlawed teaching a foreign language to student who had not yet completed the eight-grade. The court however ruled the statute to be unconstitutional as it infringed on the liberty of the plaintiff, claiming that the 14th amendment denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. This judgment made space to claim privacy in areas with unwanted state control.


The Comstock Act of 1873, which made “obscene”, “immoral” and “indecent” publications illegal, including anyone selling, prescribing or even writing about contraception and ways to control pregnancy was arrested, marking a major hindrance in the lives of a married couple, who sought to control the size of their family. In the second half of the 20th century, this statue began to be seen as an intrusion of the state into the sacred marital relations between a man and his wife, thus was challenged in Griswold v. Connecticut (1965). This case famously inferred that the American constitution holds the shadow of the idea of “privacy”. In its broad interpretation, it founded the contraception to be protected under the right to privacy which was an emanation from the first, third, fourth, fifth, and ninth guarantees which create a “penumbra”, and in general a “right to privacy”. Seven years later, this right to privacy was recognized for single people as well, in Eisenstadt v. Baird, 1972. These cases, in their constant attack on state interventions, set the stage for women to fight for their bodily autonomy.


The strict statute that sought to prevent abortion had triggered a black market of illegal and unsafe abortion by opportunist, often sought by economically disadvantaged women. The Guttmacher Institute reported that unsafe, illegal abortion resulted in the death of 2,700 women in 1930, equating to 1 out of every 5 recorded maternal deaths that year. By 1940, the death toll declined to just under 1,700 (owning to medical advancement). However, owing to the cases attacking state interventions and the rise of a feminist movement all across the US, there was an uproar for change. The change came in name of Norma McCorvey, from Texas, who in autumn of 1969, became pregnant for the third time, wanting to get an abortion, but her home state's abortion laws were restrictive. Mc Corvey turned to young lawyers Sarah Weddington and Linda Coffee, who took her case to the district court (where she was called Jane Roe to protect her identity) which ruled in their favor but refused to strike down the Texas abortion law, which led them to appeal the decision in the supreme court.