How to get Pregnant » History And Legality Of Abortion In The United States

History and Legality of Abortion in the United States

How to Get Pregnant

Most people are unaware of the fact that abortion in the United States was never really illegal. Although the ruling of the Supreme Court in Roe vs. Wade, 1973, ruled abortion legal in all states, the decision had previously been left within the jurisdiction of individual states. The only thing Roe vs. Wade served to do was take power away from states in the right to rule on the legality of abortion and place that power in the hands of the federal government. When seeking to understand the ongoing controversy surrounding abortion, it is necessary to understand the history and legality of abortion in the United States. There have always been proponents and opponents who held views from opposite poles to those who fell somewhere in the middle of the continuum.

Abortion in Colonial Times

During colonial times, the fetus was thought to be viable only after the time of "quickening."1 One of the men, James Wilson, who helped frame the Constitution, held that the right to life after quickening was protected by English common law. Quickening is a medical term that denotes the point at which the fetus moves in the mother's womb. This concept was upheld throughout the entire history of the U.S., with exception to independent states that adopted legislation to legalize abortion or not, on a state by state basis. These statutes began to surface as early as the first and second decade of the 1800s.

Scholars Disagree on the Motives for Early Legislation

Some scholars contend that early legislation was based on the fear of colonialists that immigrants from other nationalities2, non Anglo-Saxons, had a higher birth rate and would thus override the population. It is their belief that anti-abortion laws became lax so that these 'lower class' nationalities would be able to abort unwanted pregnancies. The problem was that those immigrants didn't want to abort their babies. It was the colonialists who wanted them aborted but had no legal recourse to demand it.

Roe vs. Wade to Present Date

As American citizens we are all aware of the ongoing legal battles in various states in the Union that oppose the right of the federal government to take over jurisdiction that should be theirs under the Constitution. The debate centers on whether or not abortion falls into the basic freedoms provided for in the document, or if it falls within the state's rights to rule on matters of health and welfare. At the present time, the federal government maintains the right to rule in these matters as upheld by the Supreme Court of the United States. Even legal analysts disagree as to where this issue rests. The end result is that while certain states are allowed to mold abortion laws to some degree, the federal government upholds the practice as legal in all 50 states and reserves the right to legislate accordingly.

The problem with history is that we can choose to use it to meet our needs. Dates and personages can't be distorted, but logic and motives can be contrived to validate either side of the issue. History can only show us that abortion, in some form or other, has always been legal. The real, underlying question is whether or not it is ethical. That's a question that history can't answer, but history can give us an idea of how the issue was viewed throughout time.


1. James Wilson, "Of the Natural Rights of Individuals" (1790-1792). Also see William Blackstone, Commentaries (1765): "Life ... begins in contemplation of law as soon as an infant is able to stir in the mother's womb."