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Choices and rights, children and murder

By Leigh Ann Wheeler

Demonstration protesting anti-abortion candidate Ellen McCormack at the Democratic National Convention, New York City. Photo by Warren K. Leffler, 14 July 1976. Source: Library of Congress.
“Abortion is a Personal Decision, Not a Legal Debate!”
“My Body, My Choice!”
“Abortion Rights, Social Justice, Reproductive Freedom!”

Such are today’s arguments for upholding Roe v. Wade, whose fortieth birthday many of us are celebrating.

Others are mourning.

“It’s a child, not a choice!”
“Abortion kills children!”
“Stop killing babies!”

How did we arrive at this stunningly polarized place in our discussion — our national shouting match — over women’s reproductive rights?

Certainly it wasn’t always this way. Indeed, consensus and moderation on the issue of abortion has been the rule until recently.

Even if we go back to biblical times, the brutal and otherwise misogynist law of the Old Testament made no mention of abortion, despite popular use of herbal abortifacients at the time. Moreover, it did not treat a person who caused a miscarriage as a murderer. Fast-forward several thousand years to North American indigenous societies where women regularly aborted unwanted pregnancies. Even Christian Europeans who settled in their midst did not prohibit abortion, especially before “quickening,” or the appearance of fetal movement. Support for restrictions on abortion emerged only in the 1800s, a time when physicians seeking to gain professional status sought control over the procedure. Not until the twentieth century did legislation forbidding all abortions begin to blanket the land.

What happened during those decades to women with unwanted pregnancies is well documented. For a middle-class woman, a nine-month “vacation” with distant relatives, a quietly performed abortion by a reputable physician, or, for those without adequate support, a “back-alley” job; for a working-class woman, nine months at a home for unwed mothers, a visit to a back-alley butcher, or maybe another mouth to feed. Women made do, sometimes by giving their lives, one way or another.

But not until the 1950s did serious challenges to laws against abortion emerge. They began to gain a constitutional foothold in the 1960s, when the Planned Parenthood Federation of America and the American Civil Liberties Union (ACLU) persuaded the US Supreme Court to declare state laws that prohibited contraceptives in violation of a newly articulated right to privacy. By the 1970s, the notion of a right to privacy actually cut many ways, but on January 23, 1973, it cut straight through state criminal laws against abortion. In Roe, the Supreme Court adopted the ACLU’s claim that the right to privacy must “encompass a woman’s decision whether or not to terminate her pregnancy.” But the Court also permitted intrusion on that privacy according to a trimester timetable that linked a woman’s rights to the stage of her pregnancy and a physician’s advice; as the pregnancy progressed, the Court allowed the state’s interest in preserving the woman’s health or the life of the fetus to take over.

Roe actually returned the country to an abortion law regime not so terribly different from the one that had reigned for centuries if not millennia before the nineteenth century. The first trimester of a pregnancy, or the months before “quickening,” remained largely under the woman’s control, though not completely, given the new role of the medical profession. The other innovation was that women’s control now derived from a constitutional right to privacy — a right made meaningful only by the availability and affordability of physicians willing to perform abortions.

With these exceptions, the Supreme Court’s decision in Roe did little more than return us to an older status quo.  So why has it left us screaming at each other over choices and children, rights and murder?

There are many answers to this question, but a major one involves partisan politics.

On the eve of Roe, to be a Catholic was practically tantamount to being a Democrat. Moreover, feminists were as plentiful in the Republican Party as they were in the Democratic Party. Not so today, on the eve of Roe’s fortieth birthday. Why?

As the Catholic Church cemented its position against abortion and feminists embraced abortion rights as central to a women’s rights agenda, politicians saw an opportunity to poach on their opponent’s constituency and activists saw an opportunity to hitch their fortunes to one of the two major parties. In the 1970s, Paul Weyrich, the conservative activist who coined the phrase “moral majority,” urged Republicans to adopt a pro-life platform in order to woo Catholic Democrats. More recently, the 2012 election showed us Republican candidates who would prohibit all abortions — at all stages of a pregnancy and even in cases of rape and incest — and a proudly, loudly pro-choice Democratic Party.

In the past forty years, abortion has played a major role in realigning our major political parties, associating one with conservative Christianity and the other with women’s rights — a phenomenon that has contributed to the emergence of a twenty-point gender gap, the largest in US history. Perhaps, then, it is no surprise that we are screaming at each other.

Leigh Ann Wheeler is Associate Professor of History at Binghamton University. She is co-editor of the Journal of Women’s History and the author of How Sex Became a Civil Liberty and Against Obscenity: Reform and the Politics of Womanhood in America, 1873-1935.

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