The pro-life community has been looking forward to it. Pro-choice groups have been loathing it. Now, it’s happened.
Roe v. Wade, the landmark 1973 U.S. Supreme Court decision that legalized abortion nationwide, was officially overturned by the Supreme Court Friday morning in the decision of Dobbs v. Jackson Women’s Health Organization.
The legality of abortion is now up to the states.
In Wisconsin, abortion is a felony except in an incredibly limited exception when the mother’s life is in danger. There are no exceptions for pregnancies resulting from rape or incest.
It remains legal to travel to other states to perform or receive an abortion. Abortion remains legal in Illinois.
Here’s how Wisconsin elected officials and organizations are responding:
Assembly Speaker Robin Vos, R-Rochester: “Safeguarding the lives of unborn children shouldn’t be controversial. Today’s decision reaffirms their lives are precious and worthy of protection. I agree with the justices in their opinion when they say, ‘The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.’ I urge those who disagree with the decision to remain peaceful.”
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U.S. Rep. Bryan Steil, a Janesville Republican whose district includes all of Racine and Kenosha counties: “I’m proudly pro-life. Today’s decision will bring this important issue back to the states. This is a great victory for life.”
Assembly Minority Leader Greta Neubauer, D-Racine: “Let’s call this what it is: a brazen, political act that rolls back essential human rights. By striking down a precedent of nearly 50 years, the U.S. Supreme Court has sent our country back to the 1970s and Wisconsin back to the 1840s. During Governor Evers’ special session on protecting reproductive care, we had an opportunity to protect Wisconsinites’ access to abortion, but legislative Republicans ignored the call and the will of the people of Wisconsin. Republicans’ unwillingness to act is inexcusable, and they will be directly responsible for the negative outcomes of this decision. The Supreme Court’s decision to throw out historically enshrined protections and the GOP’s inaction will have significant consequences for our friends, families, neighbors, and communities. Let me be clear: we will not stop fighting for access to comprehensive healthcare, including abortion. While today hurts, we will not be deterred in our pursuit of reproductive rights.”
Dr. Wendy Molaska, president of the Wisconsin Medical Society:
“Today’s decision raises concerns that could result in significant interference with the physician-patient relationship — the sanctity of which is the bedrock of our healthcare system. Defaulting to a law first created in 1849 is not the best path forward. Inevitable confusion over the continued validity
of that 19th century law makes proactive legislative action prudent.
“The Wisconsin Medical Society supports legislation that would acknowledge the right of a physician to perform and give advice on this medical procedure — or refuse to do so according to the physician’s training, experience and conscience.
“The health and safety of our patients is our top priority. Wisconsin law should reflect that priority and ensure physicians can have full and frank discussions with patients about their health care without fear of imprisonment.”
State Sen. Bob Wirch, a Somers Democrat whose district includes part of Racine County: “This is a sad day and I don’t believe that government should get in between women and their doctors when it comes to decisions. This is an arbitrary decision by the Supreme Court that the voters will remember in November.”
State Rep. Tip McGuire, a Kenosha Democrat whose district includes part of Racine: “If conservatives on the Supreme Court get their way, reproductive healthcare in this state will get sent back to the Dark Ages. Now is the time to take action so that our state does not mandate forced pregnancies, particularly in cases of rape and incest.”
Archdiocese of Milwaukee Archbishop Jerome E. Listecki: “As a Church that advances the Culture of Life and as members of a civil society, we welcome the decision of the U.S. Supreme Court in the Dobbs case. While no doubt we all feel a renewed hope for the future, let us also remember that our struggle to preserve the sanctity of human life is only just beginning. Abortion laws now return to the individual states. Our challenge is to continue to promote that human life begins at conception and needs to be protected at all times.
“The Church will continue to support all women — especially those experiencing unplanned pregnancies where abortion seems like the only or easy solution — by providing the spiritual, emotional and financial support necessary through our parishes, support networks and pregnancy centers. I appeal to all in our society to work together to make the thought of abortion not only unthinkable, but also unnecessary. More than 63 million children lost their lives to the scourge of abortion. May their souls, and all the souls of the faithful departed, rest in peace.”
State Rep. Tod Ohnstad, D-Kenosha: “The decision to overturn Roe v. Wade now turns the clock in Wisconsin back over 150 years, with all abortions criminalized in our state — with no exceptions to rape or incest. The Legislature had the opportunity to repeal Wisconsin’s 1849 abortion ban through Governor Evers’ Special Session; however, Republicans gaveled in and out in under 30 seconds, refusing to even debate the issue.”
U.S. Rep. Tom Tiffany, R-Wis.: “Today’s landmark ruling is a historic victory for human rights. This decision paves the way for us to protect all life.”
Larry Dupuis, legal director at the ACLU of Wisconsin: “While today is an undeniably bleak day in our country’s history, we can not allow ourselves to give up the fight. Feelings of hopelessness and despair are understandable given the magnitude of the crisis we now find ourselves in. But even in moments like this one – where we may feel completely powerless in the face of grave injustice — we must remind ourselves that we still do have power. Everyone’s rights are on the line now, so it’s important for all of us to make our voices heard, and to get involved. We need the officials who represent us in local, state, and federal government – as well those we elect to the judiciary – to be firmly committed to defending bodily autonomy, reproductive freedom, and the other civil liberties we hold dear.”
Melinda Brennan, ACLU of Wisconsin executive director: “We encourage everyone to channel the righteous anger you may be feeling right now into action. There are elections set for this August and November, as well as a crucial state supreme court race next April. You can also talk with your neighbors, contact your legislators, get engaged and organize within your community.”
Adam Rogan of The Journal Times and Joe States of Lee Newspapers contributed to this report.
Abortion in America: How access and attitudes have changed through the centuries
Considering the fraught and deeply political ways in which abortion is discussed and legislated in the U.S. today, it’s easy to forget the issue was not always a partisan, or even a moral, one. Rather, attitudes toward abortion have changed over the centuries, often evolving alongside political and historical moments that reflect shifts in power and privilege.
In Colonial times, abortion was not a matter of federal or ethical significance, but a common decision made and acted upon by pregnant people and their midwives. Two centuries later, abortions were outlawed in every state. The matter of who gets to make decisions about abortion—whether it be the federal government, state legislators, or individuals—has historically been tied up in changing philosophies about bodily autonomy, the legacy of slavery and Jim Crow, the advent of the medical industry, and, eventually, the merging of religion and politics to form the party system we know today.
The question of who has access to abortion is also closely connected with race, socioeconomic status, and proximity to power. Because history has shown that the legal status of abortions does not deter people from having them, the criminalization of abortion most directly impacts those without access to financial resources; in other words, wealthy Americans have always had better and safer access to abortions, regardless of whether abortions are legal or not.
In order to trace the history of attitudes and policies around abortion in the U.S.—starting in colonial times and ending in the present—Stacker consulted historical records, scholarly research, court documents, medical journals, news reports, and data from the Guttmacher Institute, a reproductive rights research and advocacy organization.
A note on the use of gendered language in this article: In recent years, the language used to talk about gender has shifted to meet the understanding that gender is a spectrum. Likewise, matters historically categorized as “women’s issues,” such as pregnancy and abortion, don’t only impact cisgender women, but also trans, nonbinary, and gender-nonconforming people.
In an effort to stay true to the language used in historical accounts cited in this article, we have employed language as it was used during those times. However, for the parts of this article that refer to present-day issues, we have used more expansive terminology.
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Pre-1850: Abortions in early America are commonplace
British common law followed the colonists to North America and formed the basis of the original laws and customs in the American Colonies. Abortion, like birth, pregnancy, and other processes involving women’s bodies, fell largely in the domain of communities of women.
Knowledgeable midwives were responsible for guiding women through birth and did so with the participation of the woman’s female family and friends. This communal form of birthing, now referred to as “social childbirth,” benefitted the woman giving birth both psychologically and in terms of safety, according to the book “Lying-In: The History of Childbirth in America.” Since the group of attending women usually included those who had either given birth themselves or witnessed several births, they could provide a wealth of knowledge, experience, and comfort to the birthing woman.
Abortions in early America were ubiquitous—some historians estimate between 20% and 35% of pregnancies in the 19th century were aborted. They were also uncontroversial from a moral and legal perspective, up until the quickening, which was when a pregnant woman could first feel the fetus move or kick in the womb, usually around 20 weeks into the pregnancy.
Although quickening was the point at which many considered a fetus to be viable, even the abortion of a “quick fetus” was never “firmly established as a common-law crime,” Justice Harry Blackmun would later write in the Supreme Court’s majority opinion on Roe v. Wade. Abortions were most often seen as a decision to be made by a pregnant woman and her midwife, and were most often induced using herbs known for “restoring the menses,” historian Leslie Reagan wrote in her 1997 book “When Abortion Was a Crime.”
There was no real legislation regarding abortion until the early 1800s. The legal right to an abortion prior to quickening was reaffirmed in the 1812 Massachusetts court case Commonwealth v. Bangs. This pre- and post-quickening distinction would set a precedent for a series of laws passed in the 1820s and 1830s, starting with an 1821 Connecticut abortion law.
This law was the first to officially criminalize medicinal abortion after quickening. However, it only penalized the provider of the abortifacient, not the pregnant woman, and was largely seen at the time as a means of protecting women from often-lethal abortion medicines.
Mid-1800s: Birth of the American Medical Association shifts abortion, pregnancy oversight from midwives to doctors
Despite new restrictions around the sale of abortifacients, abortions became more commercialized by the 1840s, with doctors and pharmacists advertising their services—both medicinal and instrumental—in newspapers. The shift from abortions being performed at home, often using home-grown herbs, to being performed or accessed more publicly, was already underway.
But it wasn’t until halfway through the 19th century that matters of pregnancy, birth, and abortion shifted away from a social- and community-oriented model steered by midwives, and toward a male-dominated medical model controlled by doctors.
The single most influential factor in this societal shift was the founding of the American Medical Association in 1847. In the years before the AMA began, more medical schools opened and white male physicians with medical training sought to distinguish themselves from the types of medical practitioners people were used to relying on—namely midwives, herbalists, and local healers—by dismissing their work. These alternative providers were seen as both a threat to the authority of the burgeoning medical establishment and, in a business sense, as competitors for potentially lucrative services.
When the newly formed AMA was met with derision by the general public, who did not take the group seriously, the association tried a new tactic to boost its appearance of professional credibility: the criminalization of abortion.
In 1857, the AMA established a Committee on Criminal Abortion, which launched a campaign to discredit midwives’ work and elevate the AMA’s practices to an “elite” status. To achieve this end, the AMA argued for making abortion a matter that should be decided and performed by physicians, not women and midwives.
At around the same time, changes in the Catholic Church’s official position on abortion coincided with discussions amongst AMA members about whether the life of a fetus began at quickening or conception.
While Pope Sixtus V, who came to power in 1585, decreed abortion to be considered homicide—a crime that warranted ex-communication from the Church—this stance only lasted about three years, as Sixtus’ papacy ended shortly thereafter. In 1591, Pope Gregory XIV reversed this decree, instead asserting that abortion was only homicide after “ensoulment,” which occurred at quickening, or what Pope Gregory XIV determined to be roughly 24 weeks.
This remained the Church’s official stance on abortion for the next 278 years until it was forbidden once more in 1869 by Pope Pius IX—a stance that remains in force today.
1880: Every state has laws restricting or banning abortions
The Catholic Church’s reversal on abortion coincided with the AMA’s campaign to restrict abortion. The AMA’s Committee on Criminal Abortion quickly adopted a moral argument that sought to cast doubt upon women’s knowledge of their own bodies and pregnancies. It circulated a report that lampooned “a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.”
The campaign to place abortion and birth in the hands of white male doctors was bolstered by language that stoked racial fears about declining birth rates amongst white populations, an influx of immigrants to the U.S., and the recent emancipation of formerly enslaved Black people, according to historian Leslie Reagan.
Horatio Storer, who orchestrated the AMA’s campaign to criminalize abortion, wrote that the settling of the American West and “the destiny of the nation” rested on “the loins” of wealthy white women—a mission being jeopardized by these women having too many abortions.
This was not the only way in which the AMA’s white supremacist stance impacted reproductive rights. In 1876, James Marion Sims, who is generally regarded as the founder of modern gynecology, became president of the AMA.
Sims became famous for surgically repairing certain complications from childbirth—innovations he made after doing unanesthetized forced experiments on several enslaved Black women in the mid-1800s. In 2021, the AMA acknowledged this legacy, writing that Sims’ experiments “reinforced essentially racist misconceptions in medical science, specifically regarding the biological differences of feeling pain between Blacks and whites that still persist to this date.”
By 1880, every state had passed legislation that made abortion a crime, except in cases where the mother’s life was at risk. This kicked off the “century of criminalization”—from 1880 to when Roe v. Wade was decided in 1973—forcing abortions underground.
Mid-1960s: ‘Back-alley butchers,’ underground network provide illegal, often unsafe, abortions to the desperate
With abortion outlawed in every state, people seeking to terminate their pregnancies were forced to do so in frequently unsafe conditions. People who resorted to self-inducing abortions using a notoriously grisly array of techniques—the infamous coat hanger among them—were often poor, and could not afford the steep fee of employing an “abortionist” to perform the procedure.
A study of low-income women in 1960s New York City found that, of those who reported having an abortion, 77% had attempted to self-induce. The danger of illegal abortions disproportionately impacted people not just across class lines, but also along racial lines. The illegal abortion mortality rate for women of color was 12 times higher than for white women between 1972 and 1974.
Even those who paid someone to perform their abortion were often injured in the process; the phenomenon was so common, in fact, that most big-city hospitals had septic abortion wards—sometimes referred to as “septic tanks”—specifically meant for people ailing from botched abortions. While the exact number of illegal abortions in the years leading up to Roe is unknown, due to underreporting, estimates from the Guttmacher Institute place the number anywhere between 200,000 and 1.2 million per year in the 1950s and ’60s.
The plenitude of people seeking abortions can be attributed in large part to the fact that contraceptives were not accessible for most of the 20th century. In 1965, Griswold v. Connecticut made the use of birth control legal for married couples. And it wouldn’t be until 1972, one year before Roe v. Wade, that Eisenstadt v. Baird legalized contraceptives for unmarried people, removing penalties around pre-marital sex for the first time.
A wide range of people performed underground abortions during the first half of the 20th century: both untrained providers and discreet physicians, with motivations ranging from greed and a desire to exploit vulnerable people, to compassion for those in need of assistance.
But not all underground abortion providers fit the stereotype of the “back-alley butcher.” Some reproductive rights activists developed ways of helping people access safe and affordable abortion care. The Jane Collective of Chicago, group of pro-abortion activists, famously formed in the ’60s and set up a call line, which connected those seeking abortions with the group’s own provider. After a while, the women realized they could learn to perform the procedure themselves, allowing them to expand their services to more people at a much lower cost. In the years leading up to 1972, when members of the collective were arrested for administering abortion services, Jane provided roughly 11,000 abortions to people in the Chicago area.
1960s: Pressure from activists creates reform in some states ahead of Roe v. Wade
The 1960s ushered in a new era of social and political change—the civil rights, women’s liberation, and anti-Vietnam War movements converged to create a sense of optimism and energy, particularly among younger generations. The sexual revolution in particular began to shift conservative norms around what kinds of sexuality were acceptable, and questions about women’s sexual empowerment entered mainstream conversation. The advent of the birth control pill coincided with these new beliefs and allowed (married) people to control their fertility more effectively than ever before.
By the late ’60s, the work of activists, changing attitudes around sex, and the impact of Griswold v. Connecticut were beginning to have an impact on how lawmakers and the general public viewed abortion. Over the course of that decade, abortion had gone from a taboo subject people whispered about, to something shouted about in protests.
Activists argued the precedent set by Griswold, which protected married people’s right to contraception through their right to privacy, should, by the same token, extend to abortion. In 1967, Colorado reformed its abortion law, triggering a string of other states to do the same in the years leading up to 1973. In 1970, the AMA formally reversed its earlier stance when it voted in favor of legal abortion.
New York repealed its abortion law altogether in 1970, allowing for abortions up to 24 weeks, or at any point in the pregnancy if the life of the mother was in danger. The state, and particularly New York City, quickly became a hub for out-of-state people seeking abortions. Estimates from health officials between 1970 and 1972 attribute roughly two-thirds of all abortions performed to non-New York residents.
While this dramatically improved the safety outcomes for those who had the means to fly to New York, pay the cost of the procedure and lodging, and fly home—mainly wealthy white women—people with fewer resources in more restrictive states continued to suffer from unsafe and unregulated abortion services.
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1973: Roe v. Wade makes abortion safe and legal in all 50 states
On Jan. 22, 1973, the Supreme Court handed down its 7-2 decision on Roe v. Wade, rendering restrictive abortion laws across the country unconstitutional.
Despite the overarching implications of the ruling, public reaction was reportedly muted. This was, in part, due to the fact that abortion had not yet become a partisan or deeply politicized issue. In fact, many of the justices who voted in favor of Roe were conservatives and Richard Nixon appointees, including Justice Harry Blackmun, who delivered the majority opinion. The news of the Roe decision was largely overshadowed by the fact that Lyndon B. Johnson, who had served as president just four years earlier, died that same day.
Then-President Nixon’s private reaction to the Roe v. Wade decision was infamously captured in a secret audio recording by one of his aides: “I know there are times when abortions are necessary … I know that—when you have a Black and a white, or a rape,” he said. Nixon didn’t make a public comment about the ruling. In the immediate aftermath of the decision, the majority of the criticism of Roe came from the Catholic Church.
Abortion access improved quickly after Roe v. Wade. The septic abortion wards that had sprouted up in hospitals to treat complications from unsafe abortions were closed and replaced by clinics. Complication rates went down, and because of improved access to abortions early on in the pregnancy, the rate of abortions after the first trimester dropped from around 25% in 1970 to 10% in the first 10 years post-Roe.
Late-1970s: Racial fearmongering creates rise of the ‘Moral Majority’
The decade after Roe v. Wade saw the beginnings of a shift in political and social allegiances around the issue of abortion. Prior to Roe, and even in the few years after, evangelical Christians did not oppose abortion—in fact, many Southern Baptists supported legal abortion. Abortion was not a major political issue for the right at that time, and most Catholics, the most outspoken anti-abortion voter bloc, tended to vote Democratic prior to 1970.
A few key events changed the priorities and demographics of the political parties. The first, and perhaps most influential, was the elimination of tax exemptions for segregated private schools. Referred to as “segregation academies,” these schools cropped up in the aftermath of the Brown v. Board of Education decision, as white evangelical families pulled their children out of public—now integrated—schools. After Black Mississippi families sued in 1970, the IRS was pressured to crack down on segregation academies by removing their tax-exempt status in the late ’70s.
Another Supreme Court case contributed to a growing backlash amongst white evangelical Christians: Engel v. Vitale, a 1962 ruling that prohibited public schools from sponsoring schoolwide prayer. As the Republican party increasingly became the socially conservative “party of family values,” the issue of abortion became a convenient—and more socially acceptable—proxy through which the right could channel its discontents around desegregation, growing sexual liberalness, and civil rights. Adopting an anti-abortion stance also helped the Republican Party convince more socially conservative Catholics to break with the Democrats.
By the end of the 1970s, these issues had converged to aid the rise of the Moral Majority, a right-wing movement headed by televangelist Jerry Falwell. The Moral Majority merged fundamentalist social and political conservatism and mobilized the Christian right, aiding in the election of Ronald Reagan in 1980 and ushering in a new era of American politics.
2022: Supreme Court poised to overturn Roe v. Wade
On May 2, 2022, Politico published a leaked Supreme Court initial draft majority opinion overturning Roe v. Wade. Although final rulings sometimes differ from initial drafts, the document inspired panic and protest amongst supporters of legal abortion and preliminary celebration for opponents of Roe.
But legal challenges to Roe began long before the Supreme Court decided to hear Dobbs v. Jackson Women’s Health Organization back in 2021. Starting in the 1980s, cases like Harris v. McRae and Webster v. Reproductive Health Services were already introducing restrictions to the access Roe initially promised.
Harris v. McRae restricted Medicaid funding for abortions to cases of rape, incest, and life endangerment, while Webster v. Reproductive Health Services upheld Missouri’s limitations on who could perform abortions, as well as where.
The 1992 ruling for Planned Parenthood v. Casey both reaffirmed Roe while also introducing a loophole through which states could restrict access to abortions: As long as state laws did not pose an “undue burden” on people seeking abortions before the point of fetal viability, those restrictions could be acceptable. This reworked the trimester framework established by Roe, which ensured access to abortion during the first two trimesters and allowed for states to decide on restrictions or bans on third-trimester abortions.
In 2000, the Supreme Court heard Stenberg v. Carhart, which challenged a Nebraska ban on a late-term abortion method called dilation and extraction—controversially referred to as “partial-birth abortion.” The Court ruled the ban was unconstitutional, because it posed an “undue burden” on those seeking an abortion, as defined in Planned Parenthood v. Casey. But only seven years later, this decision was contradicted by the Supreme Court’s Gonzales v. Carhart ruling, which upheld the passage of the Federal Partial Birth Abortion Ban Act. The act criminalized the dilation and extraction abortion method, the first time a specific technique was banned.
Since Planned Parenthood v. Casey and Gonzales v. Carhart, states have passed increasingly restrictive laws around abortion, including banning other specific abortion methods, and introducing mandatory waiting periods and counseling, gestational limits, parental consent for minors, and compulsory ultrasounds.
The future of abortion access could mean long car rides across state lines and the rise of self-managed abortions-by-mail
For many people living in states with restrictive abortion laws, the reality of getting an abortion over the past several years has already resembled a pre-Roe world: where having the means to drive or fly across state lines and pay for abortion services, as well as other associated travel costs, is often a dealbreaker.
Some things will change, however, if the Supreme Court overturns Roe v. Wade. The distances people will need to travel to receive abortion care will increase manifold. Current estimates from the Guttmacher Institute indicate that 26 states are likely or certain to ban abortion if Roe is overturned. These states are concentrated in the South and Midwest, and would effectively create hundreds of miles-long abortion deserts in parts of the U.S. Residents of Louisiana, Florida, and Texas in particular could see an increase of hundreds of miles to the nearest legal clinic.
But accessing an abortion in the event of a 26-state ban does not mean returning to the days of back-alley butchers and coat-hanger abortions. Abortion services have evolved significantly since the century of criminalization, and have become increasingly safe and simplified. Reliance on surgical abortion has decreased: as of 2020, over half of all U.S. abortions are medication-based. The most common medication abortion is an FDA-approved combination of two drugs—mifepristone and misoprostol—which are usually administered during the first 10 weeks of pregnancy.
Self-managed abortions—abortions performed by the individual at home—using mifepristone and misoprostol are likely to become more popular. Through-the-mail abortion pill and telemedicine consultation services like Plan C, Hey Jane, AidAccess, and Women on Web have emerged to improve access in abortion deserts.
The right to an abortion is codified in state laws or constitutions in 16 states, including New York, Illinois, California, Oregon, and Colorado, as well as Washington D.C. Many of these states are preparing for a surge in the number of out-of-state visitors seeking abortions, or have already seen an uptick in recent years as restrictions on abortions have tightened in neighboring states.
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