Season 2: Historical Context

217: Abortion or, “Tough Life Choices”

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I’ve taught some version of a Current Events class for eight years. I’ve waded into the depths of almost every contemporary debate you can think of: immigration, gun reform, nuclear warfare, police brutality, sexual harassment and assault, privilege, white supremacy – you name it and I’ve taught it. To teenagers, thank you very much. But there has always been one issue that has been a big “No.” It’s too emotional; too personal; too rooted in faith and varying definitions of humanity. But apparently, state legislators across the country are desperate for me to do a podcast about the one topic I’ve tried to avoid at all costs. That’s right, today we’re talking about abortion.

I’m going to do my best to give you some historical context for the modern debate surrounding abortion in a way that is informative, relatively painless, and entertaining whenever possible and appropriate. How far back does this debate go? What exactly is Roe v. Wade? And is it in trouble? Now, at this point, you may be thinking: this doesn’t apply to me! Why do I need to know about this? Well, I would argue that we’re all listening to this podcast because we thinking that more knowledge is better than less knowledge. But, if you’re a numbers guy, then just know that ⅓ of all women have had an abortion by the age of 45. So… do you know three women? OK. Then this applies to you.

Now, before we get started I want to get some things out of the way. I normally don’t do this but it’s such a divisive topic that I don’t want there to be any confusion:

  1. I am pro-Choice. I think the only person who has a right to decide what a woman should do with her body is that woman, with the guidance of her doctor and her loved ones. And only 19% of people in the U.S. believe abortion should be entirely banned. So, for today’s episode I’m going to work under the assumption that those of you listening are somewhere with the majority – either you believe it should always be allowed, or at least allowed in some cases like rape, incest, or health of the mother. Basically, I’m assuming that everyone listening is mildly to extremely uncomfortable with the recent abortion restrictions like in Alabama and Georgia that have changed the law so that women or doctors who perform abortions are treated as murderers. In some cases, doctors who perform abortions could face the death penalty which… you know… kind of defeats the whole purpose. Anway.
  2. Abortion makes me really sad and uncomfortable. Just because I’m pro-Choice doesn’t mean I’m pro-Abortion. I think very few people are pro-Abortion – what a weird and terrible thing to be in favor of. As someone who just gave birth two years ago, this whole discussion is way more real to me than it’s ever been. So, I’m not going to go into detail about what – exactly – an abortion is: how it works, etc. If you want to know the scientific specifics, you’re listening to the wrong podcast. If you know anything about me, it should be that I know astonishingly little about science. But, I will tell you that 90% of abortions are in the first trimester (the first 3 months) and most of them are done by taking a pill. So, when we’re talking about abortion today, that is basically what we’re talking about – going to your doctor or an approved clinic, sitting in a room and swallowing a pill.
  3. I spent a lot of time researching this topic from all possible perspectives. If you go to my website and look at my sources, you’ll see that I gathered information from pro-Choice and pro-Life organizations. But, ultimately, if there is a dispute over facts – as a teacher I always fall on the side of Science. I may not understand it but I believe it exists and I trust in people who are way smarter than I am.
  4. If any of those things bother you, then please just stop listening now. Or keep listening, but definitely don’t send me your comments.

This is Anti-Social Studies; I’m Emily Glankler; settle in and let’s get some historical context on Abortion or, “Tough Life Choices.”

Act 1: US History – Uterus Edition

In the United States, the first laws regulating abortion started popping up in the mid-1800s. Up to that point, abortions were commonly performed before “quickening” – that means before a woman first feels the baby moving, which is normally 13-16 weeks. Now, we’re talking the 19th century here so obviously these procedures were dangerous – but not because abortion is inherently more dangerous than other procedures, but just because everything was dangerous in the 1800s. Like, it wasn’t until the late 19th century that scientists figured out that germs were a thing.

By the way, it wasn’t just that they were performed, they were openly advertised. One newspaper in Kansas ran an ad for “Female Pills” that helped bring on a woman’s period. Another doctor – a woman doctor whoa! – advertised her services to women who “with to be treated for obstruction of the monthly period.” Everyone knew what this meant and it was commonly understood that this was a normal procedure, although it was generally accepted that this would only be for married women… because obviously unmarried women didn’t start having sex until Woodstock. Anyway.

The Early Abortion Debate

But in the middle of the 19th century, states began passing bans on abortion – starting with Connecticut in 1821. By 1910, all but one state had criminalized abortion, except when necessary to save the life of the mother. The question I had was… why? Not why did they pass bans? Frankly, I was really surprised that abortions bans didn’t always exist in our little Puritan democratic experiment. I wanted to know what changed in the middle of the 1800s to make states feel the need to pass these laws. Based on my research, here’s what I found:

Reason #1: Religion. Obviously. Now, the U.S. had always been a religious population but the mid-1800s was at the tail end of a massive Protestant religious revival known as the Second Great Awakening. The late 1700s – the years of the Revolution and the Founding Fathers – had been dominated by Enlightenment ideals like rationalism and deism, or the belief that God basically set the universe – and the laws of science and nature – in motion and then left it alone. Basically, society was becoming more secular. So new religious leaders rose who appealed to emotion, enthusiasm, and an interest in the supernatural to gain new members in Protestant churches – especially Baptists and Methodists. This led to a wave of new, fervent Christians who felt impassioned to bring their faith into public life, including legislation.

Reason #2: Immigrants. The 1800s saw waves of immigrants coming to the industrializing U.S., especially immigrants from places that aren’t Britain. Uh oh. There was a nativist fear that the children of immigrants would “overtake” WASP Americans and so some people believed that it was your patriotic duty to have as many true American babies as possible. Oof.

Reason #3: Doctors wanted to corner the market. This is a really interesting viewpoint. Essentially, abortion was commonly performed by “competitors” to trained doctors – especially midwives. And so, the AMA (American Medical Association) – newly founded in 1847 – argued for the full criminalization of abortion, calling it “immoral and dangerous.” It should be noted, that this was at the same time that abortion procedures were actually becoming safer, as advancements thanks to the Industrial Revolution improved medical practices overall. So why would doctors side with anti-Abortion advocates? Well, the state bans criminalized all forms of abortion except those deemed medically necessary by… you guessed it… doctors. And so, abortion went from being a relatively simple “outpatient” procedure that a midwife or other sort of healer could perform, to being a “physicians-only” practice.

And finally, I wouldn’t be the raging feminist I am if I didn’t point out that abortion bans popped up around the country precisely in the era when women were beginning to push for more involvement in public life. Just one year after the AMA was founded – in 1848 – a group of women and men met at Seneca Falls, NY to found the modern women’s rights movement with a document called “The Declaration of Sentiments.” As women began pushing for more rights, especially suffrage, many other groups in society worried that our nation was losing sight of traditional morality. What would happen to the family unit – an important source of stability in a democracy – if women left their domestic sphere? And so, these state laws banning abortion have to also be understood as a way to attempt to maintain the status quo in regards to gender roles.

Importantly, just because abortion was criminalized by the early 20th century didn’t mean that women stopped getting abortions. In the first half of the 20th century, before Roe v. Wade, it is estimated that rates of illegal abortions were as high as 1.2 million per year. These “back alley” abortions were obviously much less safe, especially for women who couldn’t afford a private doctor who could pull some strings and perform the procedure without fear of legal consequences.

So, from the mid-1800s until 1973, abortion was effectively illegal in the United States. So, what happened to make the Supreme Court upend a century of state laws in Roe v. Wade?

The Reproductive Rights Movement

As with most things that liberals support, it all goes back to the 1960s. After the suffragettes achieved their primary goal in 1920 with voting rights for women, the women’s rights movement splintered. It should be noted that conversations around contraception and reproductive rights were ongoing – Planned Parenthood was founded in 1916 – but there wasn’t a nationwide movement yet.

But after WWII, women began entering the workforce at higher rates and throughout the 1950s many women developed careers for the first time. This brought back into the national conversation the role that motherhood plays in a woman’s working life. In 1960, the birth control pill was approved and in 1963 Betty Friedan published The Feminine Mystique, the book that launched the modern feminist movement. Many women began to see reproductive rights, specifically the right to decide when and how they start a family, as crucial to their ability to gain equal status in society.

In order to understand abortion in the U.S., there are three Supreme Court cases you need to know. The first one is not about abortion at all – it’s about birth control. So, before 1965, a lot of states had made it illegal to use contraception. Connecticut – again Connecticut, why are they so obsessed with uteruses up there? – had a law that prohibited a doctor from giving married couples any information, instruction, or medical advice on contraception. Opponents argued that the state didn’t have the right to tell a married couple what they could or couldn’t do in the bedroom and the Supreme Court agreed.

In 1965, Griswold v. Connecticut struck down the state law and they did so by arguing that Americans have a right to privacy. Now, this is nowhere in the Constitution, but the liberal court argued that privacy was a basic right in a democracy and it was implied in the language of the Founding Fathers. This is a huge precedent that paves the way for a lot of legal discussion, but it also paves the way for Roe v. Wade. (Side note: in 1972, the Supreme Court established that unmarried people could also use contraception. That blows my mind.)

Before we move onto the big Supreme Court case, I want to take a moment to talk about a woman you may not remember from history class but you definitely should. Her name is Margaret Sanger.

The Tale of Margaret Sanger

Margaret Sanger was born in 1879, one of eleven children. Her mother, a devout Roman Catholic, died at the early age of 50 and Sanger always saw her mother’s death as the result of the physical toll of living a life of poverty in addition to… you know… ELEVEN pregnancies. Good God.

Sanger eventually became a nurse, married an architect and moved to New York City where she became involved in the growing Progressive Movement to address social inequality that was the result of the unbridled industrial boom of the Gilded Age. Through her work as a nurse and her involvement in the growing labor movement, she came to understand that one of the most powerful ways that a family could pull itself out of poverty was if the woman had the ability to control her family size. Because, you know, kids are hella expensive.

In 1914, she launched a feminist publication called The Woman Rebel (dibs band name!) which began advocating for birth control. She was charged with violating a federal law that prohibited the distrubution of “obscene” material through the mail, and this included information on birth control. She fled to England, continued authoring pamphlets teaching women about contraception, eventually went to trial in the US but the unexpected death of her five-year-old daughter made the public more sympathetic to her and they demanded the charges be dropped. (Side note: this law that she violated – the Comstock Law – wouldn’t be repealed until 1971.)

In 1916, she opened the first birth control clinic in Brooklyn – she was arrested, gained a ton of media attention and the support of a few very wealthy people who helped fund her venture. Through her trial, the courts eventually ruled that doctors could prescribe women contraceptives for medical reasons – a loophole that led to her opening another clinic in 1923. She staffed it with all female doctors (badass) and it eventually became known as the Planned Parenthood Federation of America.

Throughout the 1920s she was active in politics and gaining support for her American Birth Control League. Eventually, contraception was legalized and became widely used across the United States because of her efforts. It should be noted that her reputation has been re-evaluated and slightly tarnished because of her association with the eugenics movement. She was interested in the value of birth control to prevent birth defects, but there were many others in the movement who wanted to use birth control to prevent “undesirable” racial and socioeconomic groups from procreating, which – you know – is awful. Again, there is no evidence that she held these views, but the fact that she worked with this movement for a time isn’t the greatest.

She eventually retired as a nurse and public activists but she continued to pull strings and push her movement. In the late 1950s, she got funding from an heiress to recruit a researcher Gregory Pincus, who used that money to develop the birth control pill. “The pill” was approved by the FDA in 1960, revolutionizing reproductive rights for women. Basically, Margaret Sanger almost single-handedly created the modern reproductive rights movement. If you are pro-Choice, or just appreciate that the pill helped clear up your acne like it did for me when I was in high school, you should know who she is. So now you do.

She died in 1966 at the age of 86 and I’m really sad that she didn’t live for just a few more years to witness what she would have considered the most astounding Supreme Court decision of her lifetime.

Act 2: Roe v. Wade

So what was going on in the late 1960s/early 1970s that made it the right time for activists to bring up abortion, again? Well, again, the women’s rights movement was going full steam ahead. Family planning in general had become fairly accepted as an important aspect of female empowerment – although abortion was, obviously, the most contentious topic underneath that umbrella. And while around a dozen states had liberalized abortion laws, most other states continued to criminalize it. After years trying to lobby state legislatures unsuccessfully, activists realized that this was an issue that probably wouldn’t be changed by politicians, so they started looking to the courts, instead.

It should be noted that most “radical” social change happens through the federal courts, not the state legislatures. Desegregation, voting rights, even same-sex marriage to some extent… all of those had some success in the states but they eventually stalled out as conservative states with conservative constituents refused to budge. Just like Brown v. Board of Education ruled segregation unconstitutional – even though the majority of white voters in the South didn’t see it that way – reproductive rights activists hoped that the federal courts might have a more philosophical, and friendlier, view toward their case than entrenched politicians and voters. And they were right!

Norma McCorvey and lawyer Gloria Allred on the steps of the Supreme Court, 1989
Lorie Shaull [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)]

Who, exactly, was Roe? Well, it was a pseudonym – Jane Roe, a common play on the typical false name John or Jane Doe – for Norma McCorvey. At 21, she became pregnant for the third time. Her first child had been relinquished into her mother’s custody because she was only 16 at the time and her second child was given up for adoption immediately. She didn’t want to go through another unwanted pregnancy and so she applied for a legal abortion, using the exception in the case of rape. By all accounts, including her own later on, she was not raped but she believed – and accurately – that claiming she was was the only way she might be granted an abortion. She was denied, again – an accurate decision considering she was lying.

At the same time, there were two young female lawyers who had been looking for a case to possibly challenge Texas’s strict abortion laws. This is something students don’t typically ever learn about. It’s rare that the citizen in question is the one who sues and drives their case up through the courts. Norma McCorvey never attended a single trial related to her own case – it was all handled by her lawyers. Typically, activists, lawyers, or other organizations seek out test cases that they think might be the one they need to change a law they want changed.

For example, Rosa Parks was not the first to refuse to give up her seat to a white person on the bus – a teenager named Claudette Colvin had done the exact same thing in Montgomery just a few months before. She was also arrested and the NAACP considered her for the test case to possibly strike down bus segregation, but when they found out she was 15 and pregnant – allegedly with the child of a married man – they decided she couldn’t be an effective face for their desegregation campaign. Enter: Rosa Parks.

Anyway, back to Roe. So lawyers Sarah Weddington and Linda Coffee – amazing names, by the way. They sound straight out of an old feminist women-in-the-workplace movie, 9 to 5 style – shoulder pads and all. Anyway, Sarah Weddington and Linda Coffee – they were 26 and 31, respectively – took on the case suing Dallas District Attorney Henry Wade. After two years, the case made it up to the Supreme Court.

(I want to point out that Norma McCorvey had her baby during this time, who was immediately put up for adoption. The baby girl would be a 46-year-old woman today and, as far as we know, knows nothing about her connection to this historic case. And thank God the public doesn’t know who she is – I can’t imagine going through your life with that kind of a spotlight. Fairly soon after she gave birth, Norma entered into a long-term relationship with Connie Gonzalaz but if you’re thinking this story ends with a loving long-term lesbian partnership, then just hold on to that thought for a second.)

Before we get back to Norma’s life, what was the ruling in Roe v. Wade? Well, remember Griswold v. Connecticut? Of course you do; I talked about it, like, 4 minutes ago. In basic terms, the liberal Supreme Court ruled that the criminalization of abortion violated a woman’s constitutional right to privacy – the precedent that had been established just a few years earlier in Griswold. The majority argued that the right to privacy included the right of a woman to decide whether to have children and that it was up to the woman and her doctor to make that decision without state interference.

I want to make sure we’re all clear, because it’s important for the future of Roe v. Wade: there is no mention of a right to privacy anywhere in the Constitution. So the Roe decision is, essentially, a loose interpretation of another loose interpretation of the Constitution. That’s fine – especially if you’re a liberal – but it means that the ruling could fall apart if a later Court determines that that original interpretation of privacy was too… loose… eroding the basis for the Roe decision. More on that in a minute.

Interestingly, the Supreme Court took up another abortion case on the same day as Roe and in Doe v. Bolton they defined “health” as “all factors” that affect the woman, including physical, emotional, psychological, and familial health. So when states made exceptions about the “health of the mother,” according to this decision that shouldn’t just mean “if the woman is going to die without an abortion.” Nice to see mental health making its way into the national conversation…

Now, Roe v. Wade did not determine that a woman can have whatever she wants whenever she wants. The Supreme Court isn’t Oprah. What they said was that during the first trimester, the state does not have a “compelling interest” in the health of the woman or the fetus and so the government cannot regulate abortion during that stage. But, in the second trimester, and more so in the third, the Court did allow for restriction. So, anyone who thinks that Roe v. Wade lets women freely abort fully developed and viable babies in the womb – well, they’re wrong.

Reactions to Roe v. Wade

How did people react to Roe v. Wade? Well… basically, just go find an article on the recent abortion laws in Alabama and Georgia on your preferred news site or social media platform. And if you want to know how people reacted to Roe v. Wade, just get to the end of the article and keep scrolling. If you’ve ever read a Facebook comment section on a Fox News article, then you know how people reacted. Not well.

The public reaction was swift among conservatives. Many historians argue that there had been conservative politicians and strategists trying for years to organize conservatives into a powerful voting bloc but they couldn’t find the right issue. Then, in walks Roe v. Wade and conservatives, especially the burgeoning “Religious Right,” are like… “Hold my beer.” Or, “Hold my iced tea,” depending on what denomination they are. Some opponents to the decision organized public events like the March for Life. Others took it even further and committed violence against abortion clinics and doctors who performed abortions – making everyone who heard them claiming to be “Pro Life” while they tried to kill people go, “Huh?”

But for me, the most important reaction to understand is that of the dissenting votes on the Supreme Court – because those are the opinions that might come back around if an abortion case ever makes it to the Supreme Court again – let’s be honest, not “if,” but “when.” So two of the nine justices dissented and their argument was really compelling. They pointed out that at the time the 14th Amendment was being passed – the Equal Rights Amendment that the majority justices had argued implied a right to privacy – that was the same moment in American history when states were passing abortion laws. So, they’re argument was basically that if the authors of that Constitutional Amendment had intended for privacy, health, or reproductive rights to be included then they would have definitely included it then – because it was a hot topic even in the late 1800s.

Basically, the two dissenting justices are on the side of “strict construction,” or a literal reading of the Constitution. This tends to be more common in conservative judges and it means that they do their best to interpret new laws and issues through the lens of what the authors of the Constitution and its amendments originally meant when they wrote it.

More liberal judges tend to believe in “loose construction,” meaning they think the Constitution is more of a living document that provides the philosophical framework for our nation, but that should be updated and reinterpreted based on modern context.

So the two dissenting, more conservative, judges were arguing that the Founding Fathers never intended for

1. A right to privacy, because they didn’t include it in their draft and

2. Definitely not a right to abortion as a symbol of privacy.

Now, you may be asking yourself at this point: Why do we care what a bunch of old dead dudes wrote in a document almost 250 years ago? And if you’re asking yourself that, then you are a liberal! Or at least, you believe in a loose interpretation of the Constitution.

But there are many out there – just about ½ of the country, including judges – who believe that part of the reason our democracy has lasted this long is because we have all agreed to not stray too far from our founding documents – it’s like money. If you start thinking about it too hard it all comes crashing down. Like… it’s just a piece of paper. How have we all been tricked into believing that a piece of paper with the shape of a 100 on it is somehow worth more than the EXACT SAME piece of paper with a 1 on it? Right? Anyone? OK, Emily, focus. I know you hate talking about abortion but we’ve got to get through this…

Roe has a change of heart

Besides the Supreme Court judges, the other most interesting reaction goes to Jane Roe – or Norma McCorvey – herself. In the 1980s, after publishing a book, she was volunteering at an abortion clinic and working to increase public support for a woman’s right to choose. And then, an anti-abortion group called Operation Rescue moved in next door. Literally. They shared a parking lot with the abortion clinic where McCorvey volunteered. Awkward. Apparently, the minister in charge of Operation Rescue Flip Benham (man, I couldn’t make these names up if I tried!) would see Norma in the parking lot and ask her if she had killed any babies that day. To which she would reply, “Lighten up. What you need is to go to a good Beach Boys concert.” Which is totally going to be the way I end every Facebook comment section argument I get into from now until the day I die.

But then, they did something that people on opposite sides of a heated argument seem unable to do today: they got to know each other, saw each other’s humanity, and became friends. Over time, the minister – Flip Benham – began talking with Norma about Christianity and she eventually joined the faith, and their organization. Her baptism in a backyard swimming pool was filmed for national television and she went to work with Operation Rescue, becoming a vocal opponent of abortion for the rest of her life.

She didn’t stick with the evangelical church for too long; she eventually joined the Catholic Church, after declaring that she was “no longer a lesbian,” obviously, because that’s how that works. For the rest of her life she was a face of the anti-abortion movement. She was arrested a few years ago on the first day of the US Senate hearings for Sonia Sotomayor’s Supreme Court confirmation because she yelled during Senator Al Franken’s opening statement. She passed away in 2017 at the age of 69, leaving behind an amazingly impactful and confusing legacy on both sides of the abortion discussion.

Act 3: The Post-Roe World

So you were probably listening to the Roe ruling and thinking to yourself… but wait… And, I’ll stop you right there to say – yes, you’re confusion is correct. Because even before Alabama and Georgia went off the deep end, states have been regulating abortion more stringently than Roe v. Wade set out. So, how can they do that? Well, that’s because Roe wasn’t the end of the abortion debate. In some ways, it was the beginning. Whoa. That was really poetic, right? Nicely done, Emily.

Immediately, conservative lawmakers sought out amendments and legislation to make some clarifications on the Roe ruling. By the end of the 1970s, Congress had adopted amendments that made it clear that federally funded medical practitioners did not have to perform abortions if it legitimately conflicted with their own moral values and teachings. This is called the Church Amendment and its named after a Senator whose last name is Church, which is really kind of cute because you know who else would also like the Church Amendment? The Church. A few years later, the Hyde Amendment barred the use of federal Medicaid funding to provide abortions to low-income women. So if a woman’s health care was Medicaid, she would have to find some other way to pay for her abortion.

But, the Supreme Court stayed fairly liberal into the late 70s. They clarified the Hyde Amendment I just mentioned to say that states could not use Medicaid funding for abortions, but only if there were federal reimbursements available. And they struck down an attempt by Missouri to add a parental consent requirement and they ruled that fathers had not rights in the abortion decision – it was still up to the woman and her doctor.

By the 1980s, Reagan was president and the Religious Right was rising. Congress proposed a constitutional amendment that would declare “a right to an abortion is not secured by the Constitution” but it fell 18 votes short of passage. Even though the amendment didn’t pass, the tide was turning. Republicans were gaining back more control in Congress – remember that the White House and Congress had basically been liberal strongholds since FDR and the 1930s, with just a few exceptions. And so they kept pushing, trying to add restrictions on abortion and testing the courts to see which would be allowed and which would be struck down.

We could tell that the Supreme Court was leaning more conservative in 1991 when they upheld a “gag rule” which prohibited doctors and counselors working at federally-funded clinics from providing their patients with information about abortions. But the big victory for anti-abortion activists came one year later in 1992 with Planned Parenthood of Southeastern Pennsylvania v. Casey.

Roe gets a makeover!

Now, this decision did not overturn Roe – in fact, it affirmed the main decision. The justices said that the “core” holdings of Roe – that a woman had the right to abortion before the fetus was viable outside the woman – those were still in effect. But, Casey did rule that states could pass restrictions on abortion as long as those restrictions did not impose an “undue burden” on the woman. But… what is an “undue burden,” you might be asking? That’s a great question.

No seriously. That’s a great question. Let me know when you find a solid definition for an “undue burden.” This vague loophole opened the door for states to add more and more obstacles in between a woman and an abortion. Let me give you an historical example that you might be more familiar with to help us understand what this means:

In the first half of the 20th century, the federal government had ruled emphatically that voting was a right of all citizens. But, states had always been in charge of running their own elections, which meant that states could decide what a voter had to do before they could actually cast a ballot. These obstacles are known as Jim Crow laws. So, Mississippi could say, “Well, everyone can vote, as long as they pay a tax.” Or, “Everyone can vote as long as they can pass a literacy test.” And, by the way, I’ve taken some of those old literacy tests and they’re freakin’ hard. Anyway, you get the idea. Technically, states were allowing everyone to vote – they were just deciding the procedures to get to the ballot box. And those procedures – plus some good old-fashioned violence and intimidation – effectively disenfranchised people of color.

“Due Burdens”: State Restrictions on Abortion

This is a similar process to modern abortion laws. So, abortion is technically legal in all 50 states. But states get to decide what procedures a woman has to go through to get to the abortion clinic. And since 1992, some of the most common obstacles have included things like: parental involvement for minors, mandatory waiting periods, making a woman hear the heartbeat, etc. And there are some out there who might be thinking, OK fine. But if you really need an abortion then just roll your eyes and get through the obstacles. And that’s what middle-class and wealthy women do.

But think about a minimum wage worker who lives over 100 miles from an abortion clinic. She now has to take precious days off work, drive to a clinic, fill out the paperwork and then wait 48-72 hours. Meaning, she either drives all the way back home, or she stays in that city for 2-3 days – that’s more lost wages. For a lot of women, the waiting period alone is a big enough barrier that she either decides to have the baby instead of possibly losing her job or she tries to find other, less safe ways to end her pregnancy.

These obstacles came to a head in 2016 when another case out of Texas made its way to the Supreme Court. Come on, Texas. I love you but, sometimes you’re a caricature of yourself. Before we get into the specific law that went to the Supreme Court let’s just take a quick look at what abortion laws look like in my home state.

Women are allowed to have an abortion up to 20 weeks into their pregnancy (the middle of the second trimester). They have to make two trips – their first trip they have to have a sonogram and receive information about the procedure. This information is, quantitatively, incorrect. For example, doctors are required by law to tell their patients that abortion increases the risk of breast cancer even though it doesn’t. (I used to work for the American Cancer Society, they’ve spent a lot of time researching cancer risk… they say it doesn’t.) These doctors also have to describe bleeding, cramping, and other painful experiences that could happen if you get an abortion even though…. All of these things also happen to women who don’t get an abortion and carry a pregnancy to term. (Again, as a woman who has had a baby – yeah. Those things are going to happen to you either way – it’s the curse of womanhood.)

Anyway, after that first appointment, the woman has to leave and wait 24 hours before her second appointment, when she can get the actual abortion. Under 18, a woman in Texas needs consent from a legal guardian but they can bypass this by going to a judge (all of which remains confidential). And abortions cost between $300 to $1,500; none of which is allowed to be covered by insurance, unless you have seen the future and pre-purchased a separate abortion insurance plan. All of this was already in place when Texas passed a law that was deemed so restrictive that activists took it to the courts. What did they do?

So, my great state of Texas had passed a law that effectively closed almost every abortion clinic in the state. *By the way, this was the bill that Wendy Davis famously filibustered in her pink tennis shoes. For those of you who were halfway paying attention but not quite sure what the actual law was about.This is way oversimplified, but basically the law said that if a clinic was going to provide abortions it had to be outfitted to the same standards as an “ambulatory surgical center” and the doctors providing abortions had to have admitting privileges at a hospital.

Legislators said that this was to protect the health of women getting abortions, but that is categorically untrue. Because, all doctors agree that none of these measures are necessary. Today, most women get an abortion by just taking a pill. Even if not, it is an outpatient procedure that is safer than a colonoscopy. Again, John Oliver – my hero – brought up an amazing point. Birthing centers don’t have any of these requirements, even though 12% of women admitted to a birthing center is eventually transferred to a hospital. Having an abortion is actually 14 times safer than carrying a pregnancy to term and delivering vaginally.

So, a group called Whole Woman’s Health sued and the Court sided with the abortion clinic. They said that Texas’s law was  an “undue burden” because it forced so many clinics to close. Especially in rural areas, partly because you had to have admitting privileges to a hospital within 30 miles. But, in a lot of ways – that was the whole point. I would argue that Texas lawmakers knew there was a good chance the law could get struck down.

The law was in effect for 3 years and during that time the number of abortion clinics in the entire state of Texas was cut in half, as clinics couldn’t afford to upgrade their facilities to meet the new regulations. So, the damage was done. Clinics closed down and so, even though the law was eventually struck down, it will take decades for the same network of clinics across the state to reopen. Even today, without all of those regulations, it takes half a million dollars to open an abortion clinic. But, it was a crucial case for the Supreme Court to show that it would consider some restrictions unreasonable. Which leads us to today…

Predicting the Future of Roe v. Wade

Is Roe v. Wade in trouble? Possibly. The most recent laws in states like Georgia, Alabama, and Missouri, were all passed with the intention of getting challenged. Basically, these states were all competing to pass the most extreme abortion law knowing that they would get sued and hoping it would make it up to the Supreme Court.

So, what will probably happen over the next year or so is that these laws will be taken up by the courts – whichever side loses (the state or abortion activists) will appeal the decision to a higher court and that will continue until either one side gives up (they won’t) or it makes it up to the US court of appeals. At that point, the decision from the court of appeals would stand… unless the Supreme Court decided to get involved.

Basically, the Supreme Court gets to hang back and watch all of this unfolding throughout the network of courts across the nation. And then if they think something has been decided incorrectly or they feel like it is an issue that need to be clarified, changed, or affirmed by the Supreme Court – they will take up the case. And, the Supreme court typically only takes up cases where the lower courts have been divided – like one court rules in favor of the state and then the appeals court disagrees and rules with abortion activists.

But, these recent laws are so obviously in direct contradiction to the ruling in Roe v. Wade and the established law around abortion, that it’s hard to imagine that the courts will do anything but declare them unconstitutional. The Supreme Court could still take up the case, and if they did at this point it should cause concern with abortion rights activists because it would signal that they disagreed with at least some part of the lower rulings. So… let’s just assume that all of that has happened. How would the current Supreme court rule on abortion?

Well, short answer: we’re not sure. And that’s because appointees to the Supreme Court are notoriously vague during their confirmation by the Senate. It is considered inappropriate and unprofessional to comment on a case that they are not presiding over and, in theory, Senators are not supposed to be confirming or denying a justice because of their political views. A judge is supposed to be impartial coming into a case and so you don’t have justices flaunting their views on many topics, especially those that are likely to come up while they’re on the court. But, we can make some educated guesses.

Essentially, the four liberal justices will vote with abortion rights activists. Led by the notorious RBG, there’s also Elena Kagan, Sonia Sotomayor, and token white male judge Stephen Breyer. And, for reasons that are pretty solid but too boring to detail here: there are two conservative judges who will pretty definitely vote against abortion rights activists: Clarence Thomas and Samuel Alito. But there are three other conservative judges who are little more up in the air.

The Three Men Who Could Decide the Future of Abortion

The two newest judges are both Trump appointees – Neil Gorsuch and Brett Kavanaugh. And, it’s generally assumed that they would vote with the other conservatives on an issue like abortion. But, they may not. During his Senate confirmation, Neil Gorsuch said that Roe v. Wade had been “decided correctly” and also “reaffirmed many times.” Again, the Supreme Court runs on precedent – and so the more times a case has been “reaffirmed” by previous courts, the more difficult it is to justify overturning those rulings. Essentially, the Supreme Court is like a team that transcends time – the justices tend to side with their “team” from the past, unless some radically new information has come up or the decision from previous team members was just so egregious that it has to be undone. But the balance is always on the side of inertia – which works in Roe’s favor.

In his own confirmation hearing, Brett Kavanaugh agreed with Gorsuch and said that the right to an abortion as a “precedent on a precedent” – referring to the Roe and Casey decisions. Now could they both have just been saying that to get confirmed? Sure. Gorsuch wrote a book opposing doctor-assisted suicide and euthanasia, an issue that tends to align with the abortion debate. And as an appeals court judge, Kavanaugh sided with the government to delay the abortion of an illegal immigrant minor in federal custody. But, his argument was not that abortion wasn’t a right, it was that it wasn’t clear that this woman – as an illegal immigrant – had that right, since she wasn’t a citizen and was in custody for committing a crime. So it’s still murky.

If I had to bet, I would say that Gorsuch would definitely side with the conservatives. Kavanaugh is more confusing because just recently, in one of his first decisions on the Supreme Court, Kavanaugh sided with the court’s liberals as they rejected a case concerning Planned Parenthood’s ability to provide contraception and other services as part of the state’s Medicaid program. This is, again, detailed and boring, but basically it shows that Kavanaugh isn’t just going to side with the party line for the sake of it.

But the biggest question mark is next to Chief Justice John Roberts. If the court goes the way most experts think it will – 4 liberal justices stick together and 4 conservative justices stick together – John Roberts would be in the middle. He is a conservative judge; he was appointed by George W. Bush and worked as a lawyer in the Reagan Administration. During that time in the Reagan White House he condemned the right to privacy and approved a statement by President Reagan comparing Roe v. Wade to the Dred Scott decision that sanctioned slavery. So… those don’t bode well for abortion rights activists. But, that was during his career as a lawyer and he seems to have taken his new role as Chief Justice of the Supreme Court seriously.

The one thing that seems to matter to Roberts above all else is the dignity and legitimacy of the Supreme Court. He views it as the most noble branch of government, separate from and untainted by the politics of Congress and the White House. During his confirmation hearing, he spoke of needing judges who were humble enough “to recognize that they operate within a system of precedent.” He opposes what is called “judicial activism” – or judges using their bench as a way to push their own policies or agenda. And while this is partly why he opposed the Roe decision as a lawyer, it’s also what might keep him from overturning it as a judge – he doesn’t want the Court to appear to be bending to the will of the far right.

It should be noted that Roberts voted with the minority in the recent Texas decision – he believed that the new restrictions were not an “undue burden.” But, this year, he voted with liberals to block an identical law in Louisiana, at least until the entire case could be heard. So, he’s clearly flexible and willing to consider each case on its own merit. Which means that we don’t have a Supreme Court that is just waiting to pounce on abortion as soon as it reaches their desk… but, we do have a Supreme Court that is more likely to seriously reconsider Roe v. Wade than we’ve had since the decision was handed down 46 years ago.

In the meantime, there are a few cases you should pay attention to if you care about this issue. And, let’s be honest, if you’ve made it this far in the podcast then clearly you do. Right now, the Supreme Court is deciding what cases to take up for the next term, including parts of three different laws that have been blocked by lower courts. These provisions say things like that the fetal remains have to be buried or cremated, the woman has to get an ultrasound at least 18 hours before the procedure, and that the state can prohibit abortions based solely on the race, sex, or disability of the fetus (meaning, a woman can’t have an abortion just because her fetus has a known disability or is not the gender she wants. For the record, I don’t think most women are having abortions just because they really wanted a girl… the issue in this case is the disability one. But, none of these cases ask the judges to rule directly on Roe, so, if anything, it could be a way to gain some more information about how the newer justices would rule if a direct challenge to Roe v. Wade ever did come up.

Contemplating the Meaning of Life

But, let’s get out of the weeds for now and get back to the big question of the day: Is abortion a right? Liberals tend to argue that it is – the right to have control over your own body and make private decisions regarding your health and personal life. Conservatives tend to argue that it isn’t – because it is restricting others’ rights, namely the rights of the unborn child, the rights of the spouse or partner, etc. More extreme conservatives, like the lawmakers in Alabama and Georgia, argue that abortion is murder and should be legislated as such.

No matter what you believe, we have to all understand that abortion is a unique conversation. When we talk about abortion, we’re talking about the complexities of defining life and its meaning. Abortion is the existential crisis of a country like the United States – a country that is both Christian and secular, fiercely protective of its rights but also still patriarchal. In short, it’s a mess. Which is exactly why I never talk about it in class. But I made an exception for you fine people. You’re welcome.

Sources

“Abortion in Texas,” ACLU Texas, 2017

“Abortion History Timeline,” National Right to Life, 2019

Adam Liptak, “Supreme Court Blocks Louisiana Abortion Law,” New York Times, 2/7/2019

Ariane de Vogue, “Kavanaugh, Collins back in spotlight after Alabama abortion law is signed,” CNN, 5/16/2019

Carter Sherman, “Neil Gorsuch just gave the first glimpse of how he might rule on abortion issues,” Vice News, 3/20/2018

“Current Supreme Court Justices’ Answers to Questions About Roe and Abortion During Their Confirmation Hearings,” Center for Reproductive Rights, 2005

David Jaffe-Bellany, “Five years after Wendy Davis filibuster, Texas abortion providers struggle to reopen clinics,” Texas Tribune, 6/25/2018

Debra Michals, PhD, “Margaret Sanger,” National Women’s History Museum, 2017

“Frequently Asked Questions About Abortion,” Whole Woman’s Health, 2019

“History of Abortion,” National Abortion Federation, 2019

“In Their Words: The Supreme Court Justices on Abortion,” Alliance for Justice, 1/8/2014

“Jane Roe made abortion legal. Then a minister made her rethink.” The Washington Post

John Oliver, “Abortion Laws,” Last Week Tonight with John Oliver, HBO, 2/1/2016

Louise Melling, “Will the Supreme Court Overturn Roe v. Wade After All?”, The New York Times – Opinion, 12/11/2018

“Norma McCorvey,” Wikipedia, 2019

“An Overview of Abortion Laws,” The Guttmacher Institute, 5/1/2019

Patricia Bauer, “Norma McCorvey,” Britannica Biography, 2019

Pete Williams, “The Supreme Court and abortion: Will Roe v. Wade survive the new onslaught?” NBC News, 5/16/2019

“Roe v. Wade,” Encyclopedia Britannica, 2019

“Roe v. Wade,” Khan Academy, 2019

Thomas A. Glessner, “The Sotomayor Nomination and Abortion,” National Institute of Family and Life Advocates, 2009

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