When she went before the U.S. Supreme Court for the first time in 1971, the 26-year-old Sarah Weddington became the youngest attorney to successfully argue a case before the nine justices—a distinction she still holds today.
Weddington was the attorney for Norma McCorvey, the pseudonymous “Jane Roe” of the 1973 Roe v. Wade decision that recognized the constitutional right to abortion—one of the most notable decisions ever handed down by the justices.
Weddington understood the ordeal many women faced when obtaining a clandestine procedure, although she kept that knowledge secret for decades. As she has subsequently written and talked about extensively, in 1967 Weddington (née Ragle) became pregnant when she was working three jobs and attending law school.
Without recourse to legal abortion in Texas, she and her partner drove from Austin across the border to a small building at the end of a series of dirt alleys in the town of Piedras Negras. Although Weddington was able to return to Austin and resume law school shortly after obtaining an abortion, the experience wiped out her meager savings. Many other women have told similar stories of pre-Roe abortions they, or someone they knew, experienced. For some women, especially those who were too poor, too young or otherwise unable to find a source of safe care, the clandestine procedure resulted in serious injury or even death.
The pre-Roe era is more than just a passing entry in the history books. More than 40 years after Roe v. Wade, antiabortion politicians at the state level have succeeded in re-creating a national landscape in which access to abortion depends on where a woman lives and the resources available to her. From 2011 to 2016 state governments enacted a stunning 338 abortion restrictions, and the onslaught continues with more than 50 new restrictions so far this year. At the federal level, the Trump administration and congressional leaders are openly hostile to abortion rights and access to reproductive health care more generally. This antagonism is currently reflected in an agenda that seeks to eliminate insurance coverage of abortion and roll back public funding for family-planning services nationwide.
Restrictions that make it more difficult for women to get an abortion infringe on their health and legal rights. But they do nothing to reduce unintended pregnancy, the main reason a woman seeks an abortion. As the pre-Roe era demonstrates, women will still seek the necessary means to end a pregnancy. Cutting off access to abortion care has a far greater impact on the options available and the type of care a woman receives than it does on whether or not she ends a pregnancy.
The history of abortion underscores the reality that the procedure has always been with us, whether or not it was against the law. At the nation's founding, abortion was generally permitted by states under common law. It only started becoming criminalized in the mid-1800s, although by 1900 almost every state had enacted a law declaring most abortions to be criminal offenses.
Yet despite what was on the books, abortion remained common because there were few effective ways to prevent unwanted pregnancies. Well into the 1960s, laws restricted or prohibited outright the sale and advertising of contraceptives, making it impossible for many women to obtain—or even know about—effective birth control. In the 1950s and 1960s between 200,000 and 1.2 million women underwent illegal abortions each year in the U.S., many in unsafe conditions. According to one estimate, extrapolating data from North Carolina to the nation as a whole, 699,000 illegal abortions occurred in the U.S. during 1955, and 829,000 illegal procedures were performed in 1967.
A stark indication of the risk in seeking abortion in the pre-Roe era was the death toll. As late as 1965, illegal abortion accounted for an estimated 17 percent of all officially reported pregnancy-related deaths—a total of about 200 in just that year. The actual number may have been much higher, but many deaths were officially attributed to other causes, perhaps to protect women and their families. (In contrast, four deaths resulted from complications of legally induced abortion in 2012 of a total of about one million procedures.)
The burden of injuries and deaths from unsafe abortion did not fall equally on everyone in the pre-Roe era. Because abortion was legal under certain circumstances in some states, women of means were often able to navigate the system and obtain a legal abortion with help from their private physician. Between 1951 and 1962, 88 percent of legal abortions performed in New York City were for patients of private physicians rather than for women accessing public health services.
In contrast, many poor women and women of color had to go outside the system, often under dangerous and deadly circumstances. Low-income women in New York in the 1960s were more likely than affluent ones to be admitted to hospitals for complications following an illegal procedure. In a study of low-income women in New York from the same period, one in 10 said they had tried to terminate a pregnancy illegally.
State and federal laws were slow to catch up to this reality. It was only in 1967 that Colorado became the first state to reform its abortion law, permitting the procedure on grounds that included danger to the pregnant woman's life or health. By 1972, 13 states had similar statutes, and an additional four, including New York, had repealed their antiabortion laws completely. Then came Roe v. Wade in 1973—and the accompanying Doe v. Bolton decision—both of which affirmed abortion as a constitutional right.
The 2016 Supreme Court decision in Whole Woman's Health v. Hellerstedt reaffirmed a woman's constitutional right to abortion. But the future of Roe is under threat as a result of President Donald Trump's commitment to appointing justices to the Supreme Court who he says will eventually overturn Roe. Should that happen, 19 states already have laws on the books that could be used to restrict the legal status of abortion, and experts at the Center for Reproductive Rights estimate that the right to abortion could be at risk in as many as 33 states and the District of Columbia.
To be sure, abortion and the after care a woman receives have changed dramatically since the pre-Roe era. The alternatives outside a traditional medical setting now available to women involve safer methods, including the use of drugs such as misoprostol for ending a pregnancy. Even so, the truth remains that restricting or banning abortion will not make it go away. These actions will perpetuate inequality because poor women and women of color are more likely than white or wealthy peers to be denied access to care and face legal penalties for seeking alternatives.
In light of state and federal policy makers' hostility to abortion, a commonsense policy goal would be to provide all women access to quality, affordable contraceptive care. In addition to respecting women's human rights and yielding significant health, social and economic benefits, this step would also lead to fewer unintended pregnancies. In 2014 the U.S. abortion rate reached its lowest level ever recorded, and strong evidence suggests that the steep drop in abortion between 2008 and 2014 was driven largely by improved contraceptive use. Notably, these declines happened in almost all 50 states, including those such as California and New York that are broadly supportive of abortion rights.
Good policy follows where the evidence leads. But the Trump administration and congressional leaders are moving in the opposite direction by pursuing plans that would undermine women's ability to obtain the contraceptive care they need. These attacks include attempts to roll back the many gains of the Affordable Care Act, gut Medicaid and undercut the critically important Title X national family-planning program, even while attacking Planned Parenthood, a trusted provider of contraceptive services for millions.
Instead of repeating the mistakes of the past, we need to protect and build on gains already made. Serious injury and death from abortion are rare today, but glaring injustices still exist. Stark racial, ethnic and income disparities persist in sexual and reproductive health outcomes. As of 2011, the unintended pregnancy rate among poor women was five times that of women with higher incomes, and the rate for black women was more than double that for whites. Abortion restrictions—including the discriminatory Hyde Amendment, which prohibits the use of federal dollars to cover abortion care for women insured through Medicaid—fall disproportionately on poor women and women of color.
These realities are indefensible from a moral and a public health standpoint. The time has come for sexual and reproductive health care to be a right for all, not a privilege for those who can afford it.