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Historical Background

In the nineteenth century, the average size of the U.S. family declined dramatically. A white woman in 1800 gave birth to an average of seven children. By the end of the century, the average was three-and-a-half children. In part, the decline was caused by the dissemination of scientific information on birth control. Many of the nineteenth-century proponents of family planning were radical social reformers who offended church and community leaders with their graphic descriptions of human REPRODUCTION.

Conservatives sought to curtail this information on birth control and abortion. The most prominent conservative watchdog was Anthony Comstock, a New York businessman who led a national reform effort against obscene materials. His work resulted in the federal COMSTOCK LAW OF 1873, which criminalized the transmission and receipt of "obscene," "lewd," or "lascivious" publications through the U.S. mail. The law specified that materials designed, adapted, or intended "for preventing conception or producing abortion" were included in the list of banned items. Some states passed "little Comstock laws" that prohibited the use of contraceptives.

Until the second half of the nineteenth century, few states had criminal laws against abortion. Women in colonial times had used abortion to dispose of the offspring of rape or seduction. Abortion was not illegal under the COMMON LAW as long as it was performed before "quickening," the period at about four months when the fetus begins to move in the womb.

State legislatures passed laws in the first half of the nineteenth century that adopted the quickening rule, and a few states allowed abortion after quickening to save the life of the mother. Abortions increased markedly in the 1850s and 1860s, especially among middle-class white women.

Religious leaders began to denounce abortion, but the AMERICAN MEDICAL ASSOCIATION (AMA) proved to be the most successful in ending legalized abortion. The AMA was formed in 1847, and the all-male professional group (women were not allowed to become doctors) made abortion law reform one of its top priorities. The AMA saw abortion reform as a way to increase its influence and to drive out unlicensed practitioners of abortion. By the 1880s, medical and religious leaders had convinced all-male state legislatures (women were not allowed to vote) to impose criminal penalties on persons performing abortions and, in some states, on the women who had abortions. The laws were based on the states' POLICE POWER to regulate public health and safety. This had some justification because abortion procedures of the time were dangerous, subjecting women to sterility and, in many cases, death. In response, women turned to birth control and to illegal abortions. The legal restrictions on birth control and abortion that were created in the late nineteenth century were not be removed until the 1960s and 1970s.

Restricting Antiabortion Protests

The legalization of ABORTION resulted in the creation of many groups opposed to the medical procedure. Some groups have sought to take away this reproductive right by LOBBYING Congress and state legislatures, and others have picketed outside clinics that offer abortion services. In the 1990s, groups such as Operation Rescue sought to prevent abortions by organizing mass demonstrations outside clinics and blockading their entrances, as well as confronting and impeding women seeking to enter the clinics.

Clinics responded by obtaining court injunctions that restricted how close abortion protestors could get to clinic property. Abortion protestors claimed that these court orders violated their FIRST AMENDMENT rights of assembly and free speech.

The U.S. Supreme Court, in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997), clarified what types of restrictions a judge could impose on abortion clinic protests. The Court upheld an INJUNCTION provision that imposed a fixed buffer zone around the abortion clinic. In this case the buffer zone affected protests within 15 feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, and driveways and driveway entrances. Chief Justice WILLIAM H. REHNQUIST ruled that the government had an interest in ensuring public safety and order, promoting free flow of traffic, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services.

The Court did strike down a provision concerning floating buffer zones. These zones, which prohibited demonstrations within 15 feet of any person or vehicle seeking access to or leaving abortion facilities, "burdened more speech than was necessary" to serve the government interests cited in support of fixed zones. Thus, protestors were free to approach persons outside the 15-foot fixed buffer zone.

In 2000, though, the Court again considered the issue of a buffer zone in Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). The Court upheld Colorado's 1993 statute, which prevented anyone from counseling, distributing leaflets, or displaying signs within eight feet of others without their consent whenever they are within 100 feet of a health-clinic entrance. The Colorado law was enacted, according to attorneys for the state, after abortion patients complained of being spat on, kicked, and harassed outside clinics. Those who challenged the law claimed it was a violation of their FREEDOM OF SPEECH under the First Amendment. The court found sufficient public and STATE INTEREST to uphold the restriction.


Briant, Keith. 1962. Marie Stopes: A Biography. London: Hogarth.

Korn, Peter. 1996. A Year in the Life of an Abortion Clinic. New York: Grove/Atlantic.


Abortion; Roe v. Wade.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Recovered memory to RepugnancyReproduction - Historical Background, Restricting Antiabortion Protests, Birth Control, Abortion, Pregnancy And Medical Developments, Reproductive Hazards In The Workplace