FROM WHITE MALE PATRIOTISM TO THE ZONE OF PRIVACY: THE HISTORY OF ABORTION IN THE UNITED STATES
By Taylor Ciambra [dropcap background="no" color="#333333"]W[/dropcap]ith the recent death of Norma McCorvey, the infamous ‘Roe’ of Roe vs. Wade, comments from Oklahoma Representative Justin Humphrey referring to women as “hosts” for fetuses, our president’s threat to “punish women for abortion” and his recent decision to defund global access to abortion, the times seem to call for reflection. How did we get to where we are with abortion? Was it always this fraught with emotion and perceived morality?
The short answer? No.
Roe herself seemed to embody the tumultuous history of abortion here in America. Her The New York Times obituary sums it up best, “She was never the idealized Jane Roe crusader many Americans visualized. Some observers said she became a pawn used by both sides in the maelstrom of the abortion wars as her public views shifted from one side to the other.”
To examine the criminality of abortion, we’ve got to consult the groundbreaking 1997 book When Abortion was a Crime by Leslie Reagan. Apparently before 1880, abortions were widely practiced and legal. Reagan writes, “At conception and the earliest stage of pregnancy, before quickening, no one believed that a human life existed; not even the Catholic Church took this view.”
The reason for the shift? The patriarchy was feeling threatened.[divider type="short" spacing="10"]
Beginning in 1857, the American Medical Association (AMA) began its work to make abortion illegal except in the case of saving a woman’s life. Reagan cites a few different motivations, all of which having to do with restricting women’s advancement in the medical field and fearing change.
Midwives and homeopaths were seen by some physicians as competition. By restricting their mostly female peers, male physicians would have more professional power and control over the field. At this time, women were also lobbying for entrance into medical school which threatened obstetrics and gynecology practitioners as well.
With an increase in immigrants to the United States, eugenic philosophy was also on the rise. “The idea of being out-populated by "others" worried some anti-abortion activists…” Reagan adds to the case against legal abortion. The birth rate in the U.S. was declining adding to the fear of “race suicide”. Add the growing suffragette and birth control movements to social/political climate of the time and you can see how "white male patriotism” as Reagan puts it, removes women’s options not just in terms of abortion, but career and societal roles too.
AN UNDERGROUND NETWORK
Despite efforts to chain women to a traditional childbearing role, illegal abortions were still performed. Just as race and location impacts opportunities today, you had a better chance of getting a safer abortion if you were white, financially well off, and lived close to a city. This gave rise to incompetent practitioners and self inflicted abortions. Our Bodies, Ourselves lists some highly dangerous home abortion methods such as; “inserting knitting needles or coat hangers into the vagina and uterus, douching with solutions such as lye, or swallowing strong drugs or chemicals.”
In the 1960s and 1970s women and allies began to get more organized about performing abortions. Rabbis and pastors set up the Clergy Consultation Service on Abortion to refer women to safer abortion practitioners and feminist groups also set up their own networks with the same purpose. Abortion Counseling Service (codename: Jane) was founded by the Chicago Women’s Liberation Union in 1969 and was one of the most widespread and successful networks.
Between 1967 and 1973 states were beginning to repeal restrictive abortion laws. The permissible circumstances began to expand to rape and incest, no longer just to save the life of the mother. In 1970, just three years before Roe v. Wade, “the state of New York legalized abortion on demand through the 24th week of pregnancy. Hawaii had earlier legalized abortion through 20 weeks, but only for residents of that state, while Washington DC also allowed abortions,” Our Bodies, Ourselves summarizes. The states of Alaska and Washington would soon follow.
ROE V. WADE
Roe v. Wade might have set the current legal precedent for abortion, but it divided the nation.
In 1970, two University of Texas Law School graduates, Linda Coffee and Sarah Weddington, brought a lawsuit against Dallas resident Jane Roe, now revealed to be Norma McCorvey. The duo claimed that Texas law against abortion infringed upon Roe’s constitutional rights. As part of PBS’s Landmark Cases series, Roe v. Wade was examined:
“The Court reviewed the history of abortion laws, from ancient Greece to contemporary America, and therein found three justifications for banning abortions: "a Victorian social concern to discourage illicit sexual conduct"; protecting the health of women; and protecting prenatal life. The Court rejected the first two justifications as irrelevant given modern gender roles and medical technology. As for the third justification, the Court argued that prenatal life was not within the definition of "persons" as used and protected in the U.S. Constitution”
The decision was made 7-2 and written by Justice Harry Blackmun. It was ruled that Roe's constitutional right to privacy was violated by Texas law. This so called “zone of privacy” was defended as being protected by the First, Fourth, Ninth, and Fourteenth Amendments. PBS writes that, “the Court then argued that the "zone of privacy" was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
Ultimately, the ruling of Roe v. Wade determined that states could not outlaw abortions performed during the first trimester but they could enact regulations in the second and third trimesters. Those enacted in the second and third trimesters had to be related to maternal health and regulations in the third trimester had to be related to protecting the life of the fetus. In any situation however, exceptions can be made to protect the life and health of the mother.
ABORTION AFTER ROE V. WADE
After the passing of Roe v. Wade, states began passing their own laws limiting abortion such as:
Hyde Amendment, 1976
Congress passed this ban against using federal funding for abortion care. Most states followed suit and instituted bans in their state Medicaid programs.
Bellotti v. Baird, 1979
The Supreme Court ruled that states could insist minors need to obtain parental consent or the woman in question could persuade a judge that she is mature enough to make her own decision.
Planned Parenthood v. Casey, 1990
In this case, the Court upheld a Pennsylvania law that included mandatory waiting periods, parental consent, and the dissemination of biased information. However, it did conclude that spousal consent was an undue burden on the woman. It also abandoned the legal principles set forth in Roe by allowing laws that limited access to abortion at any stage of pregnancy.
Gonzales v. Carhart, 2007
Here, the Court upheld the Partial-Birth Abortion Ban Act. Though there is no medical procedure known as “partial birth abortion,” the law is interpreted as prohibiting doctors from performing an intact dilation and extraction abortion. Supreme Court Justice Ruth Bader Ginsburg commented on this case stating that: “Today’s decision is alarming … It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. It blurs the line, firmly drawn in Casey, between previability and post-viability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.” (From Our Bodies, Ourselves)
In fact, according to the Guttmacher Institute, since the Roe v. Wade decision, 1,074 abortion restrictions have been enacted by the states. Roughly one quarter of these restrictions were passed between 2010-2015. Unfortunately, the Affordable Care Act makes getting a cost effective abortion worse. The ACA extends the Hyde Amendment and permits providers to refuse to provide, pay, or refer for abortion services under federal refusal provisions.
EACH WOMAN ACT
In 2015, Congresswomen Barbara Lee (D-CA), Jan Schakowsky (D-IL), and Diane DeGette (D-CO), introduced the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act to ensure coverage of abortion for any woman, regardless of how much she earns or the type of insurance she has.
The future of safe, healthy, choices for women did not begin or end with Roe v. Wade.
If the past month of Trump’s presidency has taught us anything, it’s that the evolution of laws depends directly on us.
Call your Congressperson today to voice your support to end the Hyde Amendment and continue the development of the EACH Woman Act.