The Criminalization of Abortion in America: The Insidious Effect on Black Women

Abortion in the United States is not a new subject. In the 15th century, abortion was practiced using herbs or medications and was viewed as socially unacceptable but not illegal.^10,11 By the mid-1800s, a campaign, spearheaded by the American Medical Association, began to criminalize abortions and was referred to as the “century of criminalization.”^10,12 They argued abortion was both immoral and dangerous due to the alleged “incompetence” of physicians that practiced abortions.^10,12 Skilled Black midwives practicing obstetrics were viewed as a “threat” to white men entering the field and midwifery was called a “degrading means of obstetrical care” mostly because it was coming from Black women, specifically.¹⁰ Not only did it become a battle of abortion’s legality but also between the “elite” physician versus the “irregular” provider and white versus Black.^10,13 As the face of obstetrics turned white and male, Black women were denied from being both doctors and patients of renowned hospitals.¹³ By the 1910s, abortion was illegal in every state; abortion bans had exceptions to save a patient’s life, however, this decision could only be made by physicians, who at the time, were principally men.¹²

Simultaneously, the U.S. was experiencing an influx of immigrants, which made legislators support abortion bans to force upper-class white women to have children.¹² After abortion criminalization, each state passed its own statutes that indicated when a woman could seek an abortion, which created a highly volatile climate that led to more problems due to uncertainty surrounding the legality and availability of abortions depending on their locations and variations in law.10 Because of the uncertainty during this time, many women turned to illegal abortions – thus estimating about 1.2 million illegal abortions occurring in the pre-Roe era.10 Because of the illegality of abortions, they were performed through unsafe practices causing almost 18% of maternal deaths in 1930.¹²

Throughout the 1950s to 1970s there was national advocacy for abortion law reform, which led to some states repealing their abortion bans or expanding their abortion exceptions.12 In 1970, New York became the first state to legalize abortion and had the first free-standing abortion center.¹² At the same time in 1970, Jane Roe filed a lawsuit against Henry Wade who at the time was the District Attorney in Dallas County.¹⁴ She challenged the Texas law that made abortion illegal except by doctor’s orders to save the mother’s life. In 1973 the Supreme Court ruled that the state laws were vague and negated her right to privacy protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.¹⁴ The Fourteenth Amendment upholds the individual right to privacy and a woman’s right to choose an abortion is protected under this amendment.¹⁴ Under this law the state could not regulate the abortion decision in the first trimester, regulations related to maternal health could be imposed in the second trimester, and in the third trimester once the fetus reaches “viability” a state can regulate or completely prohibit abortion.¹⁴

From 1992 to 2020 there were several Supreme Court cases that upheld the precedent of Roe v. Wade. Planned Parenthood of Southeastern Pennsylvania v. Casey upheld the Constitutional right to abortion however it introduced the “undue burden” framework that made it challenging to protest laws that were not an absolute prohibition of abortion.¹² The undue burden framework says that challenges must prove that a law would completely hinder someone from receiving an abortion. After Casey, several states implemented medically unnecessary abortion restrictions because they do not contribute to “undue burden”.¹² In 2007 the Supreme Court upheld the first federal legislation that criminalized abortion in the cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America.¹² These cases allowed Congress to ban second-trimester abortion procedures and overruled a key component of Roe in that patient’s health had to be the greatest concern in restrictive abortion laws.¹² In Whole Woman’s Health v. Hellerstedt (2016) and June Medical Services v. Russo (2020) the Supreme Court struck down medically unnecessary abortion restrictions that would cause abortions to be inaccessible in Texas and Louisiana.¹²

On June 24, 2022, the Supreme Court ruled that the Constitution does not mention abortion and therefore does not grant abortion as a right.¹⁵ This overturned the previous precedent cases of Roe v. Wade and Planned Parenthood v. Casey. By overturning Roe, the Supreme Court removed any federal abortion protections that disallowed states to prohibit abortions before viability.¹⁵ Because Roe recognized a fundamental right to privacy, the overturning of Roe also brings up questions of other rights, including the right to decide on partners and contraception, furthering the disparities among Black women by limiting their access to healthcare and autonomy over their sexual and reproductive choices.^16,17