© Edson Chilundo

Is Roe v Wade still viable?

Pro-life activists in the United States are successfully chipping away at a woman’s freedom to have an abortion
June 17, 2015
After Roe: The Lost History of the Abortion Debate by Mary Ziegler (Harvard University Press, £29.95)

In 1969, a 21-year-old Texan woman named Norma McCorvey fell pregnant for the third time. McCorvey had led a deeply sad life, repeatedly the victim of domestic and sexual violence. She had her first child at the age of 18, the result of an abusive relationship, but soon lost custody of the child. A year later she became pregnant again and gave the child up for adoption. This third time she was determined not to see the pregnancy through. But in 1969 Texas still banned abortions, except in cases where the mother’s life was at risk.

McCorvey turned to two lawyers, Linda Coffee and Sarah Weddington, for help. They took her case to court on the grounds that the Texan ban breached the 14th amendment of the United States constitution, which protects citizens’ right to privacy against state action. It became one of the most famous Supreme Court cases in history: Roe v Wade.

Although McCorvey—known as Jane Roe in court documents—gave birth to her child before the case concluded, the court did eventually rule in her favour, establishing a woman’s qualified right to terminate her pregnancy before “foetal viability”—the point at which an unborn child can survive outside the womb. The court accepted medical evidence that this occurs around the beginning of the third trimester (although this has been thrown into doubt by more recent cases) but left it to doctors to decide on a case-by-case basis, resulting in some of the most liberal abortion laws in the west. In England, Scotland and Wales the limit for elective abortions is 24 weeks but most European countries have much lower limits and some, including Northern Ireland, retain near-total bans.

This controversial 1973 ruling has been repeatedly challenged. Many US states attempt to circumvent it by raising barriers to abortion such as mandatory waiting periods, prohibiting some methods and introducing tough licensing requirements for clinics. This is the legacy of a tactic deployed by anti-abortion activists known as “incrementalism”—described in detail by Mary Ziegler in her comprehensive new book, After Roe: The Lost History of the Abortion Debate. With a ban on terminations apparently out of reach following Roe, incrementalists hoped that by chipping away at the judgement with restriction after restriction, it would eventually collapse in on itself.

Although focused on the debate in the years surrounding the case, the story Ziegler tells has considerable relevance today. This year has seen a torrent of incrementalist moves in US state legislation. Since January, more than 300 abortion restrictions have been proposed by legislators in 43 states, with dozens already approved. The number of abortion clinics in several southern states, including Arkansas and Oklahoma, has now been reduced to fewer than three. At a national level, the House of Representatives passed legislation in May that would ban abortions after 20 weeks—the “pain-capable unborn child protection act” appears to challenge Roe by taking the foetus’s ability to feel pain, rather than to survive, as its cue—although, for now, it is unlikely to pass a Senate vote and President Barack Obama, a determined supporter of abortion rights, has threatened to veto it. More worrying for supporters of abortion rights is the emergence of “foetal homicide” legislation, now a crime in more than 30 states, which is an extension of the principle that the unborn have a right to life. In February, an Indiana woman named Purvi Patel became the first person in the US to be found guilty of this crime. She was imprisoned after prosecutors alleged that she had attempted a late self-induced abortion (a charge she denied).

Nowadays, the “pro-life” and “pro-choice” camps in the US feel deeply polarised—but, Ziegler contends, it was not always so. Conventional wisdom suggests that Roe sparked this polarisation, by pushing through legalisation at a national level before public debate had reached this conclusion. Ziegler—a professor at Florida State University College of Law—argues differently: that campaigners active immediately before and after the ruling had a more fluid and diverse set of opinions than those who dominate the debate today, and that it was a wider set of events that caused today’s polarised situation.

Roe may have been controversial—but it was not particularly ahead of its time. During the 19th century, abortion had been legal in most states before “quickening”—the point at which a doctor can detect foetal movement. Anti-abortion groups emerged around the middle of the century—in part encouraged by doctors trying to drive out unregulated providers, but also as a backlash against first-wave feminism and its perceived threat to traditional family and social structures. By the end of the 19th century, not only had all states restricted abortion but contraception had also been outlawed.

Pro-birth control groups soon sprang up in response. Many prominent early feminists opposed abortion, not least because it was often unsafe at the time, but they nonetheless viewed women’s control over their own reproduction as integral to achieving equality and campaigned for access to contraception.

Unfortunately, feminist groups also became tangled up with the eugenics movement. Despite their wildly divergent motives, the two groups had a shared interest in making birth control more effective, accessible and legal. It was this that led the Planned Parenthood Federation of America—now one of the US’s most effective advocacy groups for women’s reproductive healthcare—into an unholy alliance that resulted in its founder, the great feminist campaigner Margaret Sanger, declaring at a 1953 birth control conference that something must be done “about the breeding and multiplication of… mental defectives, morons, unhealthy, diseased people.” Whether she believed this or thought such arguments more likely to produce success than the unpopular women’s rights movement is a matter of debate, but the birth control movement certainly relied on population controllers for support and funding.

The pro-abortion movement’s history meant that ethnic minorities had an uneasy relationship with it. African-Americans were often opposed to birth control, partially because of religious convictions but moreover because of concerns about racism. Alongside native Americans and the disabled they had suffered high levels of forced or coerced sterilisation under laws in more than 30 states that were intended to control the quantity or “quality” of the population during the first half of the 20th century. Such laws were discredited after the Holocaust but some cases continued into the 1970s; in total, 65,000 Americans were forcibly sterilised. Following Roe, civil rights campaigner Jesse Jackson declared himself opposed to abortion, not just because “life is the most sacred possession a man can claim,” but also because “there are indisputable traces of genocide in the possible uses of the court’s ruling.” A decade later, however, he had revised his views, describing abortion as an issue of “freedom of choice” for women. (It’s worth noting that Roe was based on the right to privacy rather than equality, as it is often portrayed today.)

The anti-abortion lobby of the early and mid-20th century also included a range of people motivated by varying concerns. Many were troubled by women’s changing position in society or felt that access to birth control encouraged the vice of premarital sex. Those demanding “foetal rights”—who believed that the protection of “persons” under the constitution extended to unborn children—were strongly associated with the Catholic Church (white evangelical Protestants, now the most likely group to oppose abortion, did not join the campaign until later). But the foetal rights movement also included feminists and social justice activists who saw foetuses as another oppressed group denied personhood by the law, as women and ethnic minorities had been in the past. Groups such as Feminists for Life, founded in 1972, argued and continue to argue that abortion is the result of society’s failure to meet women’s needs as parents.

With such varied activists on either side, abortion rights had previously been a more or less non-partisan issue. By 1980, however, both parties had defined a clear standpoint. Ziegler traces the roots of this back to Richard Nixon’s 1972 presidential campaign, when Republican strategists identified abortion as a promising wedge issue that could win over Catholics, southerners and other groups traditionally tempted to vote Democrat. The party’s pro-life stance hardened over the next decade. As it succeeded in gaining the support of pro-life voters, so those voters—seizing the chance to increase their influence—began to emphasise abortion as part of a wider narrative about the decline of morals; a narrative that appealed to the New Right and the religious right, groups willing to pump money and energy into the anti-abortion campaign. Meanwhile, the strengthened association between women’s rights and abortion rights meant the issue fitted the Democrats well.

The growing intensity of the conflict between the two sides was marked, during the 80s and 90s, by the emergence of militant pro-life groups who resorted to terror tactics to prevent abortions being performed. Hundreds of acts of violence were committed against providers, including bombings, kidnaps and assassinations, and such incidents continue today. The 2014 National Clinic Violence Survey found that a fifth of abortion clinics experienced “severe violence” in the first half of last year, including the stalking of staff members, death threats and gunfire.

Although many changes are happening at a state rather than national level, the outcome of next year’s presidential election will be crucial. It will affect not only what legislation is allowed through by the White House (frontrunners for the Republican nomination including Jeb Bush, Scott Walker and Marco Rubio are all pro-life) but, more importantly, who is present in the Supreme Court. US presidents nominate judges sympathetic to their own views and the court’s strongest defender of abortion rights, Ruth Bader Ginsburg, is also its oldest judge, at 81. Republican state houses will continue to pass legislation that tests the limits of Roe. At the end of May, laws in Arkansas and Idaho banning abortions after 12 and 20 weeks respectively were struck down as unconstitutional by appeals courts, though the judges in the Arkansas case noted the increasing difficulty of applying the “viability” standard in the face of medical advances. Many other anti-abortion laws have been upheld and already there are women who, because of restrictions or a scarcity of clinics, are unable to access it. Although Roe is unlikely to be overturned, it could be eroded to the point where a constitutional right to abortion means little in practice.