ABORTION IN US HISTORY

Janet Farrell Brodie

The June 24, 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization ending the constitutional right to abortion stated incorrectly that “the right to abortion is not deeply rooted in the Nation’s history and tradition.” The right to abortion may not have been deeply rooted in the nation’s laws, but in practice and availability, abortion has indeed been deeply rooted in American history and tradition. Some of the methods used historically bear a striking resemblance to mifepristone, the abortifacient at the center of controversy today.

Before the mid-19^th century, abortion in the U.S. generally was treated according to common law tradition which held that the procedure was legal before “quickening” (when fetal movement could be discerned). Abortions procured after quickening might be viewed as high misdemeanors for the abortionist if the woman died but they rarely were considered felonies. Prosecutions for women procuring abortions were unusual.

From the 1840s through the 1860s some states began to impose stricter regulations to punish abortionists but, still, rarely the pregnant woman involved. For example, the Iowa Supreme Court ruled in 1863 that the state law regulating abortion did not apply if the pregnant woman induced the procedure. In 19^th century medical and popular beliefs, a delayed menstruation could have various causes other than pregnancy, and women often sought abortions because they believed such delays endangered their general health. Thus, for decades in the 19^th century, U.S. abortion continued to be quietly practiced in private life and occasionally acknowledged in public discourse.

Information about pills, powders, oils, and potions as well as written instructions for their abortifacient use circulated widely, albeit often quietly, in U.S. newspapers, advertisements, books, pamphlets, and circulars. Material about abortion was frequently included with equally desirable (and equally semi-licit) information about contraception. Itinerant lecturers, male and female, crisscrossed swaths of rural and urban America speaking on sexual, physiological, anatomical, marital, and maternal matters. Some quietly dispersed information about procuring abortion (and some quietly sold abortifacients).

By today’s standards, of course, the nineteenth century’s abortion methods were far from safe or reliably effective. However, the dangers of those methods need to be assessed against the dangers of repeated pregnancies and childbirth in earlier eras. The continuing availability, indeed the growth in the numbers of purported abortifacients document the public’s continued willingness to try them—and to persevere in those trials even as the laws about abortion fluctuated.

In 1873, Congress passed the “Comstock Law” to suppress obscene literature and “articles of immoral use,” making it a felony to provide information about contraception and abortion. As a result, numerous states strengthened their laws against abortion, in some cases punishing the recipients as well as the senders of illegal information, books, medicines, and instruments. The forbidden articles included “any article whatever for the prevention of conception or for causing unlawful abortion.” Until the Supreme Court’s 1973 Roe v. Wade ruling, abortion was illegal, although prosecutions varied greatly by place and over time. Sporadic and unpredictable as they were, the prosecutions were often well-publicized, especially if they focused on the abortionists.

Mifepristone is far safer and far more predictably effective than earlier abortion medications. Like them, it is available by mail. As a result, women do not have to travel to designated medical clinics or providers (which do not exist in some states); they do not have to take off time from paid employment; and they do not have to face harassment from anti-abortion protesters outside medical facilities.

Although the drug has been legal in Europe for several decades, it did not win approval from the Federal Drug Administration (FDA) until 2000, and for many years women seeking mifepristone were required to visit an authorized medical facility and to undergo a medical examination. Access to the medication changed dramatically in December 2021 when court rulings made it legally obtainable through the mail via “telehealth.” Today, mifepristone’s “telehealth home abortions provide 67 percent of all US abortions. That is why anti-abortion activists focus on removing mail access to mifepristone even as its overall legality also comes under increasing attack. Since 2020, thirty-seven states have preserved the legality of the drug; thirteen have outlawed it, and twenty-six have restricted its availability.

Meanwhile, controversies surrounding all forms of abortion have escalated. In the summer of 2021 a new Texas law allowed citizens to file civil suits against those who aided access to abortion. Some anti-abortion activists have even proposed resuming enforcement of the Comstock law. In response, pro-abortion groups have used new forms of resistance including advocating for the adoption of state “shield laws” to protect those who provide abortion information or pills across state lines.

The Supreme Court, too, has become increasingly involved in the mifepristone battles. In January 2021 the Court reinstated restrictions on mail order mifepristone but then loosened them three months later. After the Fifth Circuit Court upheld a Louisiana law removing mail order access to mifepristone in May 2026, the Court issued a stay. At this time, therefore, the new attempts to reinstate national rules against mail order dispensing of mifepristone have been put on hold. The pause is not a victory for advocates of mifepristone. Rather, abortion opponents’ focus on removing mail order mifepristone is a first step in the broader goals of outlawing any medication abortion even in states where abortion is legal.

Whatever the near future holds, American women today, like those in the 19^th century, remain committed to obtaining abortions, while advocates continue to challenge attempts to outlaw them.

Sources

Anna Bernstein, Kimya Forouzan, Emma Stoskopf-Ehrlich, “Attacks on Shield Laws are the Next Step in Criminalizing Abortion Care,” Guttmacher, Sept. 10, 2025.

Borris, Eileen, “History on Trial: the Abortion Wars,” Women’s History Review, 19 Oct. 2022.

Brodie, Janet Farrell, “Mifepristone in the Context of American Abortion History,” Women and Politics 24:3 (2002): 101-119.

Brodie, Janet Farrell, “Menstrual Regulation in the Nineteenth-Century U.S.,” in Etienne Van deWalle and Elisha P. Renne, Regulating Menstruation: Beliefs, Practices, Interpretations. University of Chicago Press, 2001.

Brodie, Janet Farrell, Contraception and Abortion in 19^th-Century America. Cornell University Press, 1994.

Cohen, Patricia Cline, “What the Dobbs Decision Got Wrong Abou the History of Abortion Law Before Roe,” Washington Post, June 24, 2022.

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Mary Ziegler, After Roe: the Lost History of the Abortion Debate. Harvard University Press, 2015.

Janet Farrell Brodie is professor emerita of US history at Claremont Graduate University. Her most recent book is: The First Atomic Bomb: the Trinity Site in New Mexico (University of Nebraska Press, 2024).