Editor’s Note: In light of the forthcoming US Supreme Court decision on Dobbs v Jackson, Maeleigh Tidd provides her third contribution to the Pharmaceutical Inequalities series which considers its implications for women’s access to reproductive healthcare. In doing so, she reaches back to the 19th century to explore American women’s historical access to, and use of, contraception and abortion. The Pharmaceutical Inequalities series is funded by the Holtz Center and the Evjue Foundation.
As we approach the 50th anniversary of Roe v. Wade, a landmark decision of the United States Supreme Court ruling a women’s liberty to have an abortion, we were struck with a leaked draft of the Supreme Court’s opinion of overturning this Constitutional right for women. But, perhaps, this is only the beginning of the regression of women’s rights to sexual and reproductive health.
The practice of birth control is predated before we even understood and discovered the biological science behind human reproduction. In the earliest centuries, the oldest forms of birth control included mixtures of herbs, spices, oils, and even animal dung to make vaginal suppositories and douches. Contraceptives have only progressed since. Prior to the discovery of rubber in the 19th century, women were creating homemade “womb veils” (i.e., diaphragms and cervical caps) and condoms using animal bladders and intestines. These ancient practices paved the way for scientists’ technological interventions in the field. By 1870, a wide assortment of birth control devices were available to woman in the United States: rubber condoms, intrauterine devices, douching syringes, diaphragms, and cervical caps. These forms of contraceptives were distributed through catalogs, pharmacies, and even vending machines.
The early accessibility of birth control in the United States did not last long. In 1873, Congress enacted the Comstock Law – an anti-obscenity act that specifically lists contraceptives as obscene material, banning not only the dissemination of physical contraceptives but also education and information on contraception. This law was the first to criminalize birth control, and decades later united women to fight for their right to safe sexual health practices.
Throughout the 1900s, scientists continued their research in the field of women’s health, while activists begun their fight. Margaret Sanger and Katherine McCormick, the faces and voices of the birth control movement, worked together to educate and provide women [accessible and affordable] birth control through the first illegal, and then legal, birth control clinic – which antecedents Planned Parenthood. Sangers’ challenges to the Comstock Law progressed the legality of contraceptives from a complete ban (1873), to uses for therapeutic purposes (1918), and finally allowing their distribution by physicians and the recognition of their medical purpose (1936). By 1950 the contraception industry had massive improvements in the quality of condoms and diaphragms. Despite the anti-abortion laws that persisted, Americans were spending more than $200 million a year on contraceptives.
Sanger’s vision of a “magic pill”, McCormick’s inherited fortune, and the scientific advancements in drug development led to “the Pill project” in the early 1950s. The first birth control pill, Envoid, was approved by the Federal Drug Administration (FDA) in 1957 – with restriction and use for the treatment of “menstrual disorders”. It wasn’t until 3 years later, and over a half a million women mysteriously developing severe menstrual disorders, that the FDA approved the sale of Envoid as a contraceptive (1960).
Nonetheless, the Comstock Law was still endorsed in some states, prohibiting the sale of all contraceptives in eight states and the dissemination of information about birth control in Massachusetts and Connecticut. That is, until Estelle Griswold and Lee Buxton took their Connecticut case all the way to the U.S. Supreme Court – where the Court struck down the Connecticut law (7-2) prohibiting the use of birth control as a violation of a couple’s right to privacy. The Massachusetts law, prohibiting the sale of contraceptives to unmarried women, was then overturned by the 1972 U.S. Supreme Court ruling in Eisenstadt v. Baird – which declared that a state cannot stand in the way of distribution of birth control to a single person. Additionally, the 1965 Griswold v. Connecticut ruling, put forth the right to privacy and was crucial to the Courts subsequent decision in the case of Roe v. Wade in 1973.
Abortions (or induced miscarriages), predates to ancient times, and followed similar remedies of those of birth control methods in the early centuries – mixtures of herbs (pennyroyal) and elixirs. In fact, surgical abortions date back to the 18th century. It was not until the late 1800s that states began to see abortion bans and restrictions, and by 1910 abortions in the U.S. became unlawful and were criminalized. However, the criminalization of abortions did not stop the process, it just sent the practice underground. In the mid-1900s unsafe, illegal abortions were the cause of an increasing death rate among women, particularly low-income and women of color.
The abortion reform movement started in the 1950s, bringing together activists and physicians to advocate for safe and medically necessary abortions. By the late 1960s, the abortion reform was a nationwide effort to expanding the exceptions of abortion. Activists proposed a criminal abortion statute, under the Model Penal Code, to allow abortions when childbirth was dangerous for the physical and/or mental health of a patient, fetal abnormalities, and/or when the pregnancy was the result of rape or incest. The overturning of the abortion restrictions saw small victories between 1967 and 1970, starting with decriminalization in Colorado and repealed criminal penalties in Alaska, Hawaii, New York, and Washington. The end of abortion bans was in sight. In 1970, Hawaii and New York became the first states to legalize abortion and New York was the first to offer abortions through Planned Parenthood – the first free-standing abortion center nationwide.
Abortion bans were still a barrier to many women receiving safe procedures in the states. During this time, women were either still seeking out dangerous underground abortions or, when accessible and affordable, traveling to the states with access to legal abortions for the procedure. Nevertheless, the fight for reproductive health rights persisted! That is, until the 1973 landmark decision of the U.S. Supreme Court ruling in Roe v. Wade – stating that the due process clause of the 14th Amendment protects the right to abortion in all 50 states. Specifically, the Court recognized the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.
Roe v. Wade marked a breakthrough in women’s reproductive health rights, allowing for accessible, safe abortions – followed by the Casey/“undue burden” rule. However, other policies and laws have since been enacted to barricade the affordability of safe abortions, such as the Hyde Amendment (1976) and the Global Gag rule (1984). Despite being granted their constitutional right to an abortion, women continue their fight for reproductive health rights – due to policies and laws like such, and other various individual state legislation. Which leads us to the current times of the awaiting final decision (June 2022) of the U.S. Supreme Court on the Dobbs v. Jackson Women’s Health Organization – a case on a Mississippi ban on abortion at 15 weeks. This case directly challenges Roe v. Wade, as the state of Mississippi has also asked the Court to overrule Roe and Casey entirely. If Roe is overturned and its protections are dismantled, the “right to choose” lands in the hands of individual state governments – posing a major threat to millions of women in accessing and affording, safe, legal abortions in the United States.
Specific concerns with overturning of Roe v. Wade should include its potential in exacerbating the racial disparities and inequities rooted in women’s sexual and reproductive health. Despite the overall decreasing trend of abortions in the U.S., women of color, particularly Black women, are getting abortions at higher rates (4x) than white women. Additionally, banning abortions poses risk for an increase in maternal and infant mortality, which already disproportionately impacts women of color. The maternal mortality rates among non-Hispanic Black woman is 3 times the rate for non-Hispanic white woman, and infant mortality rates among non-Hispanic Black woman is 6 times the rate for non-Hispanic white woman.
This drastic difference in abortion, maternal and infant mortality rates can be explained by structural racism and the inequities in accessing health care, effective birth control and adequate sex education. If the outcome of Dobbs v. Jackson Women’s Health Organization does result in favor of the ban on abortions, there is a crucial need to increase access to affordable birth control, pre-natal care, and labor/delivery and post-partum care. Not only does this awaiting decision have the potential to diminish the progress we have made in providing reproductive rights to women, but it also threatens the future in providing equitable sexual health and reproductive care to all women – as women of color, the poor, and other marginalized groups are expected to be most impacted by an overturning of Roe v. Wade and Casey.
Maeleigh Tidd is a PhD Student within the School of Pharmacy at the University of Wisconsin-Madison. Maeleigh’s research interests focus on LGBTQ+ health and health communication in pharmacy spaces and wider medical spheres. She studies the promotion of health information (between physician and patient, health education, and public health campaigns), health activism, and community/stakeholder engagement.