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Ourselves Unborn: The Legacy of Roe v. Wade

This Saturday is the 38th anniversary of Roe v. Wade. Believe me when I say that I could write for days on the significance of the decision, and even more about recent news and the current state of reproductive rights. If I tried, I could probably recount verbatim the conversation I once had with Sarah Weddington (the lawyer who argued Roe at the young age of 26!). But I won’t. For now, I will simply offer the following excerpts from Ourselves Unborn: A History of the Fetus in Modern America by Sara Dubow. To those of you who celebrate it, I wish you the happiest of Roe Days.     –Lauren Appelwick, Blog Editor

For most of the twentieth century, abortion was simultaneously proscribed and practiced. In 1953, Alfred Kinsey reported that nine out of ten premarital pregnancies ended in abortion and that 22 percent of married women had had an abortion while married. In 1955, the continuing demand for abortion motivated Planned Parenthood’s medical director Dr. Mary S. Calderone to organize a conference featuring women testifying about the hardships of dangerous and unwanted pregnancies, and physicians advocating for liberalized abortion restrictions. Whereas the American Medical Association (AMA) had led the nineteenth-century movement to criminalize abortion, it was now in the vanguard in an incipient movement to legalize it. In 1960, physicians at the AMA annual convention argued that laws against abortion were unenforceable, thus undesirable, and in 1962 the American Law Institute (ALI) endorsed the liberalization of abortion laws.

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Not satisfied with reforms that kept the power to grant or refuse an abortion in the hands of doctors and hospital boards, grassroots activists began advocating for the repeal of all abortion restrictions. In 1969, the National Association for Repeal of Abortion Laws (NARAL) was founded at the First National Conference on Abortion Laws, and the radical feminist group Redstockings held the first speak-out on abortion.  In 1970, the New York state legislature legalized abortion, an act endorsed by Republican governor John D. Rockefeller.  In 1971, a national poll showed that more than half of Americans favored legalizing abortion, the American Bar Association issued a statement supporting the legalization of abortion up to the twentieth week of pregnancy, and the Supreme Court heard the first round of oral arguments in Roe v. Wade. On January 22, 1973, the Supreme Court ended the nearly century-long prohibition against abortion in the United States. In his majority opinion, Justice Harry Blackmun made clear the Court’s desire to remove the abortion question from the abstract realms of philosophy, theology, and morality and place it in the concrete realm of law:

“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Locating abortion within the doctor-patient relationship, the Court argued that it was protected by the woman’s constitutional right to privacy, a right that the state could, subsequent to the viability of the fetus, override in order to protect its interest in “potential human life.”  But in skirting a set of questions about the origins of human life, the court had implicitly raised a second set of questions about the meaning and determination of viability. The court had, perhaps, hoped to simplify and depoliticize the issue of abortion by stripping it of its metaphysical meanings, but as the history of fetal discourses should have made clear, and as the post-Roe years quickly showed, it would prove difficult to separate theological questions about life from biological questions about physiology from political questions about personhood.

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Other hospitals did not ban later-term abortions, but instead passed policies that made them prohibitively expensive. Beth Israel Hospital of New York, for example, began mandating that lifesaving equipment be on hand during any second-trimester abortion, even while acknowledging that “this new policy would add hundreds of dollars a day to the cost of an abortion.” Hospital superintendent Donald H. Eisenberg explained this policy by saying that “doctors who perform abortions want assurances that their best medical efforts will not end in criminal charges. We can’t guarantee that so we have to protect them in other ways.” For Dr. William J. Curran, professor of legal medicine at Harvard, this policy, soon adopted by hospitals across the country, raised troubling questions:

“What about the mother who thinking she was having an abortion was later handed a child, one with a substantial risk of being braindamaged? Who will pay the bills that can reach $500 per day in the limited number of intensive care units to keep premature infants alive? The mother? The hospital? The state?”

Stymied not at all by these kinds of question, or by the Supreme Judicial Court of Massachusetts’s reversal, but aware of the growing national consensus in support of Roe, pro-life activists took heart from hospitals’ self-imposed restrictions and began focusing their attention on limiting access to and availability of abortions as a more achievable strategy than overturning the Supreme Court decision. Their first success was the passage in 1977 of the “Hyde Amendment,” named for Illinois Republican Congressman Henry Hyde, which banned the use of federal funds for abortions and therefore targeted low income women receiving Medicaid. Similar restrictions on using federal funds to provide abortion services subsequently targeted Native-American women, federal employees and their dependents, Peace Corps volunteers, residents of Washington, D.C., federal prisoners, and military personnel and their dependents.

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In 1988 and 1989, the Pennsylvania legislature amended its abortion law to require doctors to provide particular information about the health risks and possible complications of an abortion,  establish a twenty-four-hour waiting period prior to the procedure, and require parental consent for minors and spousal notification for married women. Challenged by a group of abortion clinics and physicians, the laws were upheld first by a federal appeals court in 1991 and then by the Supreme Court in 1992. In a 5–4 ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe while also upholding all of the provisions except the spousal notification requirement.

Three justices—Sandra Day O’Connor, David Souter, and Anthony Kennedy—wrote the plurality opinion, which established a new standard to determine whether laws restricting abortion were a violation of women’s constitutional right to an abortion as determined by Roe v. Wade. The Casey decision held that states could regulate abortion in accordance with their “compelling interests” so long as those regulations did not have the purpose or effect of imposing an “undue burden,” defined by the court as a “substantial obstacle in the path of a woman seeking an abortion.” Whereas the Roe decision had required states to completely rewrite their abortion statutes, most often dramatically liberalizing them, the Casey decision offered states the opportunity to revisit those statutes, and to construct new laws that did not constitute an “undue burden” but did restrict the availability of abortions.

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On November 6, 2006, South Dakotans voted on the Women’s Health and Human Life Protection Act, a bill that prohibited all abortions except those intended “to prevent the death of a pregnant mother,” and claiming to “fully protect the rights, interests, and health of the pregnant mother; the rights, interest, and life of her unborn child, and the mother’s fundamental natural intrinsic right to a relationship with her child.” One month later, on December 5, 2006, the Republican-controlled House of Representatives of the 109th Congress voted on the Unborn Child Pain Awareness Act, which, invoking notions of “informed consent” and a women’s “right to know,” required physicians to tell women seeking abortions after the twentieth week of pregnancy that “Congress finds that there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain, even though you receive a pain-reducing drug or drugs.” Two days later, in the joined cases of Gonzales v. Planned Parenthood of America and Gonzales v. Carhart, the U.S. Supreme Court heard arguments about the constitutionality of the 2003 Partial Birth Abortion Ban Act, an act that described the procedure as one that “is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances their lives.” Although the details and outcomes of these efforts differ—South Dakotans voted down the ban; Congress sent the bill back to committee; and the Supreme Court upheld the act—collectively, their shared assumption that abortions were dangerous and damaging to women, and their shared argument that these restrictions and regulations were intended to protect women, reconceptualized the maternal-fetal relationship in ways radically different from the one dominant in the post-Roe era while eerily similar to the one dominant in the late nineteenth-century movement to criminalize abortion.

Beginning in the 1980s, two new claims—that women were psychologically traumatized by abortion and that the fetus experienced pain during an abortion—were woven together by some antiabortion activists into a new rhetorical strategy that emphasized the ways that abortion hurt women and fetuses. In 1984, Dr. Bernard Nathanson used that strategy in his film The Silent Scream, in which he videotaped and narrated an abortion procedure performed on a twelve-week-old fetus. In the 1990s, it emerged in a series of congressional debates about banning partial-birth abortions. By 2006, the South Dakota ban, the Unborn Child Pain Awareness Act, and the arguments for the constitutionality of the Partial Birth Abortion Ban, explicitly linked the interests of the woman with the interests of the fetus. And in 2007, in the Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc., et al. decision, the Supreme Court gave their imprimatur to that link. This rhetorical strategy was developed and deployed within a new political context—the growing influence of the religious right on the Republican Party, as reflected first in the 1980 election of Ronald Reagan, and subsequently in the 1994 election of a Republican majority in Congress, the increasing number of Republican controlled state legislatures, and the 2000 and 2004 election of George W. Bush. It was also shaped by a new cultural context, represented by the increasing public presence of and pressure from the “family values” movement, as championed by organizations like the Moral Majority, the Christian Coalition, the Family Research Council, the Eagle Forum, and Focus on the Family. This strategy also operated within a new legal context, illustrated by the fact that Republican appointees constituted the majority of judges on ten out of thirteen federal appeals courts, and the replacement of the liberal Supreme Court Justice Thurgood Marshall with a conservative one, Clarence Thomas in 1991; and the replacement of the moderate defender of Roe, Sandra Day O’Connor with a conservative and vocal opponent of Roe, Samuel Alito in 2006.

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