Reproduction and the Constitution in the United States

Mary Ziegler

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000542998
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Reproduction and the Constitution in the United States dissects the forces that shape US conflicts over birth control and abortion.

In 1973, the United States Supreme Court issued a decision in Roe v. Wade, a landmark decision that quickly became the most widely recognized case in the country. Examining the roots of ongoing struggles over reproduction in the United States, Mary Ziegler helps readers not only understand the importance of the Supreme Court's iconic decision in Roe but also places it in context, illuminating constitutional, political, and economic trends that have remade conflicts over abortion and the law. Written by one of the world's leading scholars in the field, this book synthesizes the latest scholarship in the field and provides an accessible and concise look at:

*Why the United States criminalized abortion and birth control in the nineteenth century.

* Why there has been a stark disconnect between the law of the land and actual practice when it comes to controlling reproduction.

* What Roe v. Wade said and how the law and politics of abortion have moved beyond it.

With an up-to-date Guide to Further Reading, Who's Who of crucial figures, and a Glossary of key terms, this book provides a crucial introduction to students of women's history, American history and legal history.

Introduction

DOI: 10.4324/9781003215936-2

Most conversations about abortion and the Constitution in the United States begin with Roe v. Wade. In that 1973 decision, the US Supreme Court struck down a Texas law allowing abortions only when a patient’s life was at risk. In a companion case, Doe v. Bolton, the Court invalidated a Georgia statute that made abortion legal only in cases of rape, incest, fetal abnormality, or a threat to patient health—and only when several physicians and a hospital committee signed off first. Seven justices—many of them nominated by Republican presidents—joined a majority opinion that upended the law and politics of abortion.

The Court in Roe relied on the idea of a fundamental right to privacy. The text of the Constitution did not say anything about privacy, but several times before, the Court had recognized rights to use birth control, get married, procreate, or raise children. In Roe, the Court held that whatever privacy the Constitution protected was broad enough to protect a woman’s decision to end a pregnancy. The majority spotlighted the harms that pregnant people would face if forced to continue a pregnancy—the difficulties and dangers of pregnancy, the stigma of unwed motherhood, and even the burdens of childcare.

The Court considered and rejected arguments made by leading opponents of legal abortion. Roe reasoned that an unborn child or fetus did not count as a person for constitutional purposes (and therefore did not have a right to equal protection or due process of law). The Court likewise concluded that the government did not have a compelling interest in protecting life from the moment that sperm fertilized an egg. Noting that medical experts, theologians, and philosophers disagreed about when life began, the Court suggested that Texas could not impose its view on everyone else.

The effect of the two decisions was seismic. At the time, the vast majority of states criminalized all or most abortions. Only a handful, including New York, had removed all restrictions. In the aftermath of Roe, almost every state had to rewrite its abortion laws.

Before 1973, most abortions happened in hospitals, under the tight supervision of multi-doctor committees that rejected many requests (and worked primarily with middle-class or wealthy patients). After 1973, freestanding abortion clinics opened nationwide. For a time, the abortion rate shot up.

Harry Blackmun, the judge who wrote the Roe decision, had hoped that the Court’s decision would help to deescalate the abortion conflict. After all, at the time Roe came down, proponents and opponents of legal abortion had fought a state-by-state war to determine policy in both legislatures and courts. Blackmun had clipped a newspaper story on a recent Gallup poll suggesting that more than two thirds of Americans believed that the abortion should be left to the woman and her doctor. If most Americans agreed with the result in the Roe decision, he thought, then the Supreme Court might help make the conflict less ugly.

Blackmun’s hope came to seem extremely naive. If anything, decades after Roe, fights have become even more bitter. After 1973, a movement opposed to legal abortion—already active for the better part of a decade—expanded. The pro-life or antiabortion movement promoted a constitutional amendment that would overturn Roe. Over time, abortion foes abandoned this quest in favor of an effort to change the Supreme Court itself. With different people on the High Court, it might be possible to reverse Roe.

Ever since 1973, discussions of abortion in the United States have revolved around Roe. Any time a vacancy opens on the Supreme Court, members of the Senate quiz a nominee about their views about Roe. In many such nominations, the Roe decision often looms larger than any other consideration. Many Americans know relatively little about the work of the Supreme Court; the same, of course, is true of those in other countries. Yet Roe is uniquely well-recognized. When many think of the US Supreme Court, they think of Roe.

Roe also helped to reshape party politics in the United States. Before the early 1980s, neither the Democratic nor Republican Parties had staked out a clear position on the abortion issue. By 1980, however, the Republican Party had proclaimed its opposition to both Roe and legal abortion, while the Democratic Party favored abortion rights. Abortion became the most visible wedge issue in US politics, helping to convince some Catholics, Mormons, and evangelical Protestants to switch parties.

On occasion, the fate of Roe could decide elections, with some voters prioritizing control of the Supreme Court when they went to the polls. Every year, in January, Americans protested or celebrated the Roe decision. Roe helped to launch a debate about whether there was a right to procreate, a right not to procreate, or a right to life. At the heart of the abortion battle were profound questions about the meaning of equality, autonomy, and personhood in the United States.

Both in the United States and abroad, Roe has defined conversations about reproductive health and the American culture wars. And yet our collective fixation on Roe obscures as much as it reveals.

This book takes our preoccupation with Roe as its starting point, studying both why Roe has such a hold on the US abortion dialogue and how fights about reproductive health in the country have moved beyond it. Roe primarily framed abortion as a medical matter determined in large part by expert physicians. Almost immediately, however, commentators made “Roe” stand for much more. In addition to reinterpreting Roe, politicians, scholars, and social movements created myths about Roe’s effects— arguing that Roe had created the antiabortion movement, the American Religious Right, or the so-called culture wars over contraception, sex, and religion.

Mythmaking about Roe gave it unique symbolic resonance for groups across the US political spectrum. But if we want a real grasp of the history, law, and politics of abortion and contraception in the United States, we have to understand that Roe is only part of a much more complex history. Indeed, when Americans talk about Roe, they only sometimes mean the 1973 Supreme Court decision. We often talk about Roe and miss a complicated story of abortion and the Constitution in America. This book provides an overview of that struggle.

We tend to view Roe as the starting point of conflicts about abortion in the United States. In truth, struggles over legal abortion began much earlier. Prior to the late nineteenth century, most states had allowed early abortions, prohibiting the procedure only after quickening, the point at which a doctor could detect fetal movement. In 1858, the American Medical Association, a group for physicians, launched a campaign to criminalize all abortions. This effort was a stunning success: by the end of the nineteenth century, almost every state made abortion a crime from the very beginning of pregnancy.

While abortions continued, few challenged the legal status quo until the 1960s. In 1959, the American Law Institute, an elite group of lawyers, proposed a law allowing abortions in cases of rape, incest, fetal abnormality, or a threat to the patient’s health. States began passing laws patterned on the American Law Institute model. Republicans and Democrats found themselves on both sides of the abortion divide.

While reform, as it was called, was popular, a movement formed to fight it. At the beginning, the so-called pro-life movement was predominantly Catholic—and at times, linked opposition to birth control with abortion. Over time, the antiabortion movement severed its formal ties with the Church and reframed its cause as a secular battle for civil rights for the unborn child. Most abortion foes were socially conservative on a variety of issues, and few fought for civil rights for people of color. Nevertheless, the fight for a right to life attracted a more diverse set of activists: smallgovernment conservatives and self-styled liberals who wanted more protections for unwed mothers and pregnant workers, Mormons and Protestants as well as Catholics.

Reformers, for their part, did not feel satisfied with the laws they had championed. In states that passed the American Law Institute’s style of law, the abortion rate hardly budged. A new generation of activists described abortion not just as a public health issue but also as a matter of women’s liberation—or a tool to curb out-of-control population growth. These advocates demanded the complete repeal of abortion restrictions. Before 1973, the two sides fought to a draw. While some states eliminated all criminal laws on abortion, others rejected repeal and reform. Some courts recognized a privacy right to access abortion, while others protected the government’s interest in preserving fetal life.

Roe did not start the abortion conflict, and as early as the 1970s, the fight had moved partly beyond Roe. At the time, abortion foes fought to amend the US Constitution. Leaders of the movement wanted to define the word “person” to include fetuses or unborn children. If this gambit had succeeded, the Court would have had to give unborn children due process and equal protection. That would have made abortion illegal nationwide. But the constitutional amendment process was onerous. Three-fifths of the House and Senate had to propose the amendment, and three-quarters of the states had to ratify it. At the time, Congress lacked a majority opposed to abortion, much less willing to push an outright ban.

So, the leaders of antiabortion groups like the National Right to Life Committee and Americans United for Life searched for a different way to reduce the abortion rate. These groups began to promote restrictions that would make it harder to access abortion. Laws required patients to get the consent of their husbands or parents. Others imposed a waiting period or required doctors to recite certain statements before performing an abortion. The most influential affected the Medicaid program, a government program that provided health insurance to low-income Americans. In 1976, Congress passed a bill to fund the federal Department of Health, Education, and Welfare. A rider to the bill, the Hyde Amendment, prohibited Medicaid reimbursement for most abortions. States soon introduced Medicaid funding prohibitions of their own.

The antiabortion movement had been active since the 1960s. Much like the abortion-rights movement, abortion foes had long focused on a constitutional right, the right to life from fertilization to natural death. Self-proclaimed pro-lifers pointed to the nation’s Declaration of Independence, which recognized a right to life, liberty, and happiness. But the laws of the 1970s did not some seem to advance a right to life. All of the new laws allowed people to get abortions, subject to certain restrictions. Antiabortion leaders argued instead that Roe v. Wade permitted a wide range of abortion restrictions. If successful, this argument would make it much easier for states to limit access to abortion. As important, if Roe did not stop states from eliminating abortion access, abortion foes believed they would have an easier time arguing later that the Supreme Court should overturn the decision altogether.

The Supreme Court upheld some of these incremental restrictions (including the Hyde Amendment) and thereby began to transform what abortion rights meant in the real world. The Court ushered in a period in which access increasingly depended on a patient’s race, income, and zip code.

These cleavages deepened in the 1980s as the Democratic and Republican Parties’ positions on abortion diverged. Throughout the 1960s and 1970s, neither party had a clear position on abortion, but by 1980, it was no longer possible to confuse the parties’ positions. Ronald Reagan ran as a pro-life president and supported a constitutional amendment banning abortion. His opponent, Jimmy Carter, endorsed Roe as the law of the land.

The shifting party politics of abortion changed the pro-choice and pro-life movements. Many abortion opponents had long been profoundly conservative on social and racial issues. But even those who identified as liberal had to realign their priorities when the antiabortion movement came to rely on the GOP. By aligning with the Republican Party, abortion foes could not lobby as effectively for more robust protections for pregnant workers, better access to contraception, or more support for the poor, at least without alienating their political patrons. The antiabortion cause became increasingly identified with the destruction of Roe and nothing more.

Throughout the 1980s, abortion foes continued chipping away at Roe and hoping that Republican presidents would reshape the Court. By the early 1990s, six conservatives sat on the nation’s highest court, and it seemed that abortion rights would not last for long.

After 1992, however, Roe no longer defined the law on abortion, but not because the Supreme Court reversed it. The book takes readers through the Court’s landmark decision, Planned Parenthood v. Casey, which preserved the idea of an abortion right but put in place a new test, the undue-burden standard, that made it much easier for lawmakers to pass abortion regulations. Under Casey, a law was unconstitutional only if it had the purpose or effect of creating a substantial obstacle for a person seeking abortion. After Casey, the debate turned less on whether the Constitution protected a right to abortion and more on what an “undue burden” meant.

After Casey, the pro-choice and pro-life movements battled to define an undue burden. Abortion foes believed that the Court had saved abortion rights because the justices believed that women relied on abortion access to lead more equal lives. To reverse Casey and Roe, anti-abortion attorneys developed a plan to prove that abortion actually hurt women. The antiabortion movement began with laws like one upheld in Casey itself: statutes requiring patients to hear certain information before securing an abortion. Over time, antiabortion lawmakers included more and more controversial statements in informed-consent laws: arguments that abortion increased the risk of breast cancer, suicidal ideation, or post-traumatic stress. Leading medical organizations and published studies refuted these conclusions, but abortion foes maintained that scientific authorities and mainstream media ignored the evidence because of their pro-choice commitments.

In the mid-1990s, fights about the line between science and politics intensified when states began outlawing a procedure that opponents called partialbirth abortion. In the early 1990s, Dr. Martin Haskell gave a paper on a relatively unknown abortion technique. Abortion opponents in Minnesota saw the paper, added line drawings of the procedure, and labeled it partial-birth abortion. By the mid-1990s, Republicans in Congress and the states had begun an initiative to ban the procedure. While supporters of abortion rights insisted that the procedure sometimes best protected patients’ health, abortion foes responded that the science on the subject was too uncertain and supplied experts and evidence of their own.

In the mid-1990s, some feminists of color saw struggles over partial-birth abortion as another sign of their movement’s mistakes. Since the 1960s, both the pro-choice and pro-life movements had been predominantly white, although prominent people of color had worked for organizations on both sides of the abortion issue.

It was no surprise that women of color had long questioned the strategies pursued by larger pro-choice organizations. Some people of color questioned the historic ties between pro-choice leaders and populationcontrol organizations, which sometimes espoused eugenic and racist aims. Other people of color believed that the pro-choice movement’s single-issue agenda—and focus on the idea of self-determination—disserved communities of color. For people confronting racism or poverty, free choice was not a reality but an aspiration. To have the ability to make autonomous decisions about reproduction, activists of color demanded protection from forced sterilization, access to birth control, neonatal, and maternal care, and the means to raise the children. Demands for a more comprehensive approach to reproductive health began before Roe, but in the 1990s a more organized movement took shape. Groups like the SisterSong Reproductive Justice Collective coined their approach reproductive justice: a recognition that, for communities of color, reproductive freedom and social justice were interdependent and equally important.

As the reproductive justice movement launched, the Supreme Court weighed in on partial-birth abortion, reinforcing concern about the politicization of science. The Court upheld a federal ban on the procedure. A majority reasoned that Congress could seek to protect women from regretting abortions. As important, the justices reasoned that when a matter was scientifically uncertain, lawmakers had more latitude to regulate. Abortion foes sought to establish that the safety of specific abortion procedures—or of terminating any pregnancy—was scientifically uncertain. In this way, the antiabortion movement could justify new restrictions and build the case for reversing Roe and Casey.

As antiabortion groups began arguing that much about abortion was scientifically uncertain, new technologies shook up the abortion debate. In the 1980s and 1990s, unplanned pregnancies in the United States remained high, especially among teenagers. Research on new birth control methods stalled in the face of resistance from conservative Christians, pro-life forces, and groups that advocated for parents’ rights. Questions about the safety of contraceptives—together with major medical failures involving devices like the Dalkon shield, an intrauterine device, scared off companies that might have invested in birth control research.

The arrival of new contraceptive methods in the 1990s and beyond escalated conflicts about abortion—and the difference between birth control and abortion. Some presented RU 486, a medication used in a two-pill abortion, as a form of birth control. By the time the US government approved RU 486 in the 2000s, hundreds of thousands of European women had already used the drug. New intrauterine devices (IUDs) also arrived on the market. While the Dalkon Shield had caused serious complications in the 1970s, newer models like Mirena (introduced in 2001) and Skyla (introduced in 2013) were safer and more effective.

Some abortion foes insisted that some blocked the imp...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Chronology
• Who's Who
• Part I Introduction
• Part II Analysis
• 1 Criminalizing abortion and birth control
• 2 The reform battle and the right to privacy
• 3 The fight for Roe v. Wade
• 4 Planned Parenthood v. Casey and undue burdens
• 5 The politics of science
• 6 Religious liberty and the intractable conflict
• Part III Assessment
• 7 An abortion debate without end
• Part IV Documents
• Glossary
• Further reading
• Index