History of Abortion Laws in the United States: Roe to Dobbs

The history of abortion laws in the United States runs through four distinct eras: a colonial period governed by English common law that regulated the procedure only lightly, a 19th-century wave of state criminalization that lasted roughly a century, a 50-year stretch of federal constitutional protection beginning with Roe v. Wade in 1973, and a return to state-by-state control after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. As of 2026, 13 states enforce total or near-total bans, while nine states and the District of Columbia impose no gestational limit, and voters in several states have written protections directly into their constitutions.

Common Law and the Colonial Baseline

American courts in the colonial and early national period followed English common law, which drew its dividing line at “quickening,” the moment a pregnant woman first felt fetal movement, usually between the 16th and 20th week.¹ Ending a pregnancy before that point was not a criminal act. Courts in the late 1700s treated pre-quickening procedures as private health matters, and even post-quickening abortion was classified as a misdemeanor rather than a serious felony. Prosecutions were rare.

This lenience rested on practical grounds. Before quickening there was no reliable way to confirm a pregnancy, and women commonly used herbal preparations advertised as ways to “restore” a missed menstrual cycle. No colonial legislature passed a statute specifically targeting abortion, and the issue drew little formal legal attention during the country’s first decades.

The 19th-Century Push for Criminalization

Statutory restrictions began appearing in the early 1800s but were narrow at first. Connecticut enacted one of the earliest laws in 1821, prohibiting the administration of a “deadly poison” intended to cause miscarriage in a woman already “quick with child.” Punishment could reach life imprisonment, but the statute still applied only after quickening and targeted the person administering the substance rather than the pregnant woman.² Other states followed with similarly limited laws over the next two decades.

The decisive shift came in 1857, when the Boston physician Horatio Storer launched what historians call the Physicians’ Crusade Against Abortion. Storer persuaded the American Medical Association to appoint him chair of a Committee on Criminal Abortion, and in 1859 the AMA formally adopted his position that abortion at any stage of pregnancy should be treated as a crime. The campaign also had a professional dimension: criminalizing the work of midwives and apothecaries consolidated physicians’ authority over women’s healthcare. The AMA’s position remained the official stance of organized medicine until 1967.

The crusade produced results. Between 1860 and 1880, states and territories adopted more than 40 new anti-abortion statutes that eliminated the quickening distinction and made abortion a felony at any stage. By 1868, the year the Fourteenth Amendment was ratified, at least 26 of the 37 existing states had criminalized the procedure at all stages; by the late 1950s at least 46 states prohibited it except when necessary to save the mother’s life.³

The Comstock Act of 1873

Congress joined the criminalization movement in 1873 with the Comstock Act, which made it illegal to mail any “article or thing designed, adapted, or intended for producing abortion,” together with any written material describing how or where to obtain one.⁴ The prohibition covered drugs, instruments, advertisements, and descriptions of methods. A companion provision, 18 U.S.C. § 1462, extended the same restrictions to express companies and common carriers.

The Comstock Act is still on the books in 2026. For roughly a century, its abortion provisions were treated as a dead letter by federal prosecutors, but after the Supreme Court removed federal constitutional protection in 2022, arguments emerged that the law could be used to prohibit mailing abortion medication nationwide. That question is now working its way through the federal courts.

Mid-20th Century Reform

By the 1960s, the criminal framework built in the 1880s faced organized opposition from legal scholars, physicians, and clergy. The American Law Institute adopted its Model Penal Code in 1962, proposing that abortion be permitted when the pregnancy endangered the woman’s physical or mental health, when it resulted from rape or incest, or when the fetus had a serious abnormality.⁵ This was a sharp departure from existing laws, which allowed the procedure only to save the mother’s life.

Colorado adopted legislation based on the Model Penal Code in 1967. Between then and 1973, roughly one-third of states passed similar reforms.⁵ These laws typically required approval from a hospital committee or panel of physicians, creating regulated medical exceptions rather than broad access. New York went further. In 1970, three years before any Supreme Court ruling on the subject, it legalized abortion on request through the 24th week of pregnancy.⁶ Access depended almost entirely on geography.

Roe v. Wade and the Constitutional Right

The patchwork of state reform laws became largely irrelevant on January 22, 1973, when the Supreme Court decided Roe v. Wade. The Court held that the Due Process Clause of the Fourteenth Amendment protects a right to privacy broad enough to include a woman’s decision to terminate a pregnancy.⁷ The decision built on the privacy framework the Court had recognized eight years earlier in Griswold v. Connecticut, which struck down a state ban on contraception.⁸

Roe divided pregnancy into three trimesters. In the first, the government could not interfere with the abortion decision at all. In the second, it could impose regulations related to maternal health but could not ban the procedure. Only in the third trimester, after fetal viability (which the Court placed between 24 and 28 weeks), could the government prohibit abortion, and even then it had to allow exceptions to preserve the life or health of the mother.⁷ The ruling effectively struck down the criminal statutes that had governed the country since the 19th century.

The Hyde Amendment

Roe established a right but did not guarantee public funding. Starting in 1977, Congress began attaching a rider to its annual appropriations bills prohibiting the use of federal Medicaid funds for abortion except in cases of rape, incest, or danger to the woman’s life.⁹ Known as the Hyde Amendment after its original sponsor, Representative Henry Hyde, this restriction has been renewed every year since. It is not a permanent statute but an annually reenacted funding limitation, and its practical effect has been to place the procedure out of financial reach for many low-income women who depend on Medicaid.

Casey and the Undue Burden Era

In 1992, the Supreme Court reshaped the framework in Planned Parenthood v. Casey. The Court reaffirmed what it called the “essential holding” of Roe, that women have a constitutional right to choose abortion before viability, but it abandoned the trimester system. In its place came the “undue burden” test: a law is unconstitutional if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before viability.¹⁰ The ruling also acknowledged that medical advances had moved the point of viability earlier than in 1973.

Casey opened the door to state regulations that Roe‘s stricter framework would not have permitted. Mandatory waiting periods, parental consent requirements for minors, informed consent rules with specified disclosures, and facility regulations proliferated. As long as these measures did not amount to a substantial obstacle, they survived judicial review. The procedure remained constitutionally protected everywhere, but the practical difficulty of obtaining one varied by state.

The FACE Act

The years around Casey saw rising violence against abortion providers, including arsons, bombings, and murders. Congress responded in 1994 with the Freedom of Access to Clinic Entrances Act, which made it a federal crime to use force, threats, or physical obstruction to interfere with anyone obtaining or providing reproductive health services. A first offense carries up to one year in prison, and if bodily injury results the penalty increases to up to ten years.¹¹ The FACE Act remains in effect and continues to apply to clinics in states where abortion is legal.

Medication, Late-Term Bans, and Clinic Rules: 2000 to 2016

Three developments during the Casey era reshaped the practical and legal landscape.

The FDA approved mifepristone (sold as Mifeprex) in 2000, making medication abortion available as an alternative to surgical procedures. The approval came with safety restrictions that eventually became a formal Risk Evaluation and Mitigation Strategy, requiring certified prescribers, patient agreement forms, and dispensing only through certified pharmacies.¹² Over the following two decades, medication abortion grew to account for the majority of all abortions in the United States, and the FDA modified its requirements in 2023 to allow certified pharmacies to dispense the drug and to permit telehealth prescriptions with mail delivery.

In Gonzales v. Carhart (2007), the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003, which prohibited a specific late-term procedure. The Court sustained a ban that contained no exception for the health of the mother, departing from the principle in both Roe and Casey that health exceptions were constitutionally required.¹³

In Whole Woman’s Health v. Hellerstedt (2016), the Court struck down Texas regulations that required abortion clinics to meet surgical-center standards and doctors to hold hospital admitting privileges, holding that these rules imposed substantial obstacles with no meaningful health benefits.¹⁴ The ruling clarified that courts must weigh a regulation’s burdens against its actual benefits rather than simply deferring to the legislature’s stated justifications. It was the last major victory for abortion rights at the Supreme Court.

Dobbs and the End of Federal Constitutional Protection

The federal framework that had governed abortion for nearly 50 years ended on June 24, 2022, when the Supreme Court decided Dobbs v. Jackson Women’s Health Organization. The case involved Mississippi’s ban on abortion after 15 weeks of pregnancy, which directly contradicted the viability standard from Roe and Casey. Rather than simply upholding the 15-week ban, the majority overruled both precedents entirely, holding that “the Constitution does not confer a right to abortion” and returning “the authority to regulate abortion to the people and their elected representatives.”³

The majority’s historical argument drove the decision. The opinion concluded that the right to abortion was not “deeply rooted in this Nation’s history and traditions,” citing the widespread criminalization of the procedure by the time the Fourteenth Amendment was ratified in 1868 and the near-universal bans in place by the late 1950s.³ The dissenters contested this reading, arguing that the common law tradition before the 19th-century criminalization campaign told a different story and that the majority’s historical test would threaten other unenumerated rights the Court had recognized, including contraception and marriage equality.

The practical effects were immediate. Thirteen states had enacted “trigger laws” designed to ban abortion automatically if Roe were overturned. Missouri’s attorney general issued a proclamation on the day of the decision, and Arkansas certified its trigger ban the same day. Other states had trigger mechanisms tied to 10-day or 30-day clocks that began running the moment the opinion issued. Elsewhere, pre-Roe criminal statutes from the 19th or early 20th century that had never been repealed became enforceable again.

The Post-Dobbs Landscape

As of early 2026, the legal map of abortion in the United States is more fractured than at any point since 1973. Thirteen states enforce total or near-total bans: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. Nine states plus the District of Columbia impose no gestational limit: Alaska, Colorado, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Oregon, and Vermont. The remaining states sit somewhere in between, with gestational limits ranging from six weeks to viability.

State Constitutional Amendments

Voters have moved to settle the question through state constitutions. In 2022, California, Michigan, and Vermont approved constitutional amendments protecting reproductive rights, while Kansas and Kentucky defeated amendments that would have denied a state constitutional right to abortion. In 2024, voters decided 10 abortion-related constitutional measures. Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York approved protections. Florida’s amendment fell short of the supermajority required for passage. The Missouri result was particularly notable, as the state had been among the first to enact a trigger ban.

Private Civil Enforcement

Some states have adopted an enforcement model virtually unknown in American abortion law before 2021. Rather than relying solely on government prosecutors, these laws empower private citizens to file civil lawsuits against anyone who performs or “aids and abets” an abortion. The most prominent example allows any person, regardless of connection to the patient, to sue for a minimum of $10,000 per violation. Shifting enforcement to private plaintiffs was designed to make it harder for providers to obtain court orders blocking the laws, since there is no single government official to sue.

EMTALA and Emergency Care

One of the most consequential unresolved questions is whether federal law requires hospitals to perform emergency abortions even in states that ban them. The Emergency Medical Treatment and Labor Act, a 1986 federal law, requires any hospital receiving Medicare funds to stabilize patients who arrive with emergency medical conditions. The Biden administration argued that this obligation supersedes state bans when a pregnancy complication threatens serious harm to the mother, even if her life is not in immediate danger. The Supreme Court took up the issue in a case involving Idaho’s ban but dismissed it in 2024 without resolving the underlying question, leaving a temporary injunction in place. In June 2025, the Department of Health and Human Services rescinded the prior administration’s guidance, though the HHS Secretary stated that “EMTALA continues to ensure pregnant women facing medical emergencies have access to stabilizing care.”¹⁵

Medication Abortion and a Revived Comstock Act

The future of medication abortion by mail is unsettled. In 2024, the Supreme Court unanimously ruled in FDA v. Alliance for Hippocratic Medicine that the plaintiffs challenging the FDA’s approval of mifepristone lacked legal standing, leaving the drug available for the time being.¹⁶ New litigation followed. Louisiana brought a separate challenge arguing that the FDA’s allowance of telehealth prescriptions and mail delivery undermines state bans. The Fifth Circuit sided with Louisiana, but in May 2026 the Supreme Court blocked that ruling while the case continues, allowing mail delivery to continue for now. Whether the Comstock Act’s 1873 prohibition on mailing abortion-related materials can be revived to block medication shipments nationwide is one of the defining open questions of this legal era.⁴

The current landscape returns the country to the kind of state-by-state variation that existed before Roe, but with important differences. Medication abortion, interstate telehealth, and constitutional ballot initiatives create legal conflicts the 19th-century framework never had to address. Federal statutes like the Comstock Act, EMTALA, and the FACE Act add layers that did not exist during the previous era of state control. How courts and legislatures resolve these overlapping authorities will shape the next chapter of this legal history.

1
Cleveland Clinic. Quickening in Pregnancy
2
Connecticut State Library. History Day – Civil Rights and Human Rights: Reproductive Rights
3
Supreme Court of the United States. Dobbs v Jackson Womens Health Organization
4
Office of the Law Revision Counsel. 18 USC 1461 – Mailing Obscene or Crime-Inciting Matter
5
Congressional Research Service. Abortion Law Development: A Brief Overview
6
The State of New York. Abortion in New York State: Know Your Rights
7
Justia. Roe v Wade, 410 US 113 (1973)
8
Justia. Griswold v Connecticut, 381 US 479 (1965)
9
Congress.gov. The Hyde Amendment: An Overview
10
Justia. Planned Parenthood of Southeastern Pa v Casey, 505 US 833 (1992)
11
Office of the Law Revision Counsel. 18 USC 248 – Freedom of Access to Clinic Entrances
12
U.S. Food and Drug Administration. Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation
13
Justia. Gonzales v Carhart, 550 US 124 (2007)
14
Justia. Whole Womans Health v Hellerstedt, 579 US 582 (2016)
15
Society for Maternal-Fetal Medicine. Medical Emergencies and Access to Abortion Care
16
Supreme Court of the United States. FDA v Alliance for Hippocratic Medicine