The Abortion Wars: 30 Years after Roe v. Wade
Audrey Diehl will never forget the time her mother took her to an abortion-rights rally in downtown San Antonio.
Ms. Diehl was 9 years old, and antiabortion protesters shoved posters of aborted fetuses in her face. But it wasn’t the images that upset the girl. It was “the act,” she says, “all that yelling.” “That crystallized for me the zealotry of the antichoice movement,” says Diehl, now a 25-year-old living in Los Angeles. “It made me more understanding of why people need to continue to voice prochoice ideas.”
Yet until recently, Diehl says, she took the right to abortion for granted. Like many women who have no memory of life before the Supreme Court legalized abortion in its historic Roe v. Wade ruling – 30 years ago Wednesday – she wasn’t active in the abortion-rights movement.
Now, since the election of the second President Bush, who is pursuing antiabortion policies on many fronts, and has the potential to name enough Supreme Court justices to overturn Roe, Diehl is scared. And she’s just started volunteering at her local Planned Parenthood.
Across the country, at the American Life League in Stafford, Va., Sara McKalips is hard at work at the Rock for Life project, trying to get young people to join the fight against abortion. She says she has always opposed abortion, but didn’t become active until she was 18 and saw pictures of aborted fetuses on the Internet. She knows, she says, that “from the moment of fertilization, a unique human being exists who deserves to be protected.”
While at Messiah College in Grantham, Pa., she supposed most of her fellow students were also against abortion. “But most students didn’t really do anything with their prolife beliefs,” says Ms. McKalips, who graduated last May. “The prolife movement needs people to take more of a stand on the issue and be less compromising.”
These two young women, members of a generation who have lived their entire lives under Roe, are in a way atypical for their activism. Since 1973, nearly 38 million abortions have been performed in the US – yet a majority of Americans are conflicted on the issue, and avoid it.
But those with firmly held beliefs, like Diehl and McKalips, still number in the millions. And they reflect what author Lawrence Tribe has called an enduring “clash of absolutes” that’s made Roe v. Wade one of the most contentious Supreme Court rulings ever handed down – one that has had a profound impact on American culture and politics, and, in the eyes of some scholars and activists, could one day be overturned.
Jan. 22, 1973
Frances Kissling was the director of an abortion clinic in New York City on the day that Roe v. Wade was handed down. She remembers arriving at work at 8 a.m. and “having kids in their dirty cars sitting in the parking lot, having driven from Kentucky and Connecticut and wherever, being afraid, dealing with the fact that they’ve just come from someplace where abortion was illegal to a place where it was legal.”
Then the legal and cultural earthquake struck. In two 7-2 decisions – Roe v. Wade and Doe v. Bolton – abortion was declared a constitutionally protected right, under a right to privacy not explicitly stated in the Constitution, but developed through Supreme Court precedent. Though the justices ruled that states could regulate and ultimately ban abortion as pregnancies progressed, there was no mistaking the fundamental shift.
“It was a shock,” says Ms. Kissling, now president of Catholics for Free Choice. “No one expected it.”
In his dissent, Justice Byron White castigated the majority for holding that “the Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus.”
Justice William Rehnquist decried the trimester system laid out by the majority as “judicial legislation.”
At the time, abortion was legal in only four states – New York, Hawaii, Alaska, and Washington. Suddenly, it was legal everywhere. But for abortion-rights forces, the celebration didn’t last long. The antiabortion movement, centered at first in the Catholic Church, galvanized and fought abortion on many levels – at the clinics, in state legislatures and courts, in the US Congress, and back in the Supreme Court itself. Abortion-rights forces have played defense ever since.
Since 1973, attitudes toward abortion, as charted by Gallup and the General Social Survey, have held remarkably stable even as the public has become more liberal on other social issues, such as gay rights and women’s equality.
“There has been some movement in a prolife direction, but you’d have to get out a magnifying glass” to see it, says Ted Jelen, a political scientist at the University of Nevada at Las Vegas and an author on the subject. “Fifteen percent are prolife, about a quarter to a third are prochoice, and the balance, it depends.”
Opinion experts suggest that the effectiveness of the antiabortion movement has bumped up against other trends – such as higher education levels and less affiliation with organized religion – that might otherwise have liberalized opinion toward abortion. When framed around the question of whose choice an abortion decision should be, the public clearly favors the woman. Two-thirds of the public also consistently oppose overturning Roe.
Still, the way abortion is perceived has evolved since 1973. At the time of Roe, discussion centered on the woman’s rights. But the rise of technology has altered that.
“All the remarkable developments in fetology and the images we now have of an embryo – how quickly you start to get all those characteristics that we call human, measurable brain activity, and so on – have made it impossible for anyone to make a coherent argument that it’s just a blob that isn’t human yet,” says Jean Bethke Elshtain, a professor at the University of Chicago divinity school. “Clearly, it’s a nascent human being. It’s not going to be a giraffe.”
What makes America’s abortion wars so remarkable is how public and political they’ve been. Part of that speaks to the larger US cultural mosaic – the conflicts of a country that is both deeply religious and committed to secularism, a nation that invented modern feminism but remains ambivalent about women’s roles. America’s highly legalistic culture has also made it inevitable that a matter as private as reproduction would wind up in the courts.
Has 30 years of legalized abortion made Americans more cavalier on issues of human life, as some antiabortion advocates had warned?
Not necessarily: On physician-assisted suicide and euthanasia, Americans remain queasy, ethicists say. Public discomfort over the use of embryonic stem cells and human cloning has also shown that “there is still a moral seriousness in the American people that is quite uplifting,” says Professor Elshtain.
Looked at another way, it’s not necessarily true that banning abortion would enhance respect for life. Consider Romania under former President Nicolae Ceaucescu, says Ms. Kissling of Catholics for Free Choice: Abortion was strictly illegal – and unwanted children packed orphanages.
But abortion critics also say that, in fact, women facing unwanted pregnancies in this country don’t have as much “choice” as the abortion-rights side claims.
“As a woman, my concern with 30 years of Roe is that it has created an abortion mentality,” says Carrie Gordon Earll, a bioethics analyst at Focus on the Family, a conservative organization based in Colorado Springs.
“Even though most Americans don’t like abortion,” she says, “it has become the cultural default – almost an automatic assumption that a woman in a less-than-ideal pregnancy will at least consider it.”
Since Roe, support systems that existed to help women with unwanted pregnancies – such as homes for unwed mothers – have shrunk. A classic cry among abortion-rights forces has been that abortion critics care more about the unborn than the born.
But in recent years, the antiabortion movement has built up a network of crisis-pregnancy centers – clinics where pregnant women can go for help with prenatal and postnatal care. Care Net, an umbrella organization for these centers in Sterling, Va., estimates that there are now about 2,500 in the US; in 1980, there were less than 500.
A declining abortion rate
Amid all the fierce debate and violence surrounding abortion clinics and doctors, the number and rate of abortions in America has steadily declined. The reasons are hotly debated. Prochoice advocates credit the growth of emergency contraception, a high-dose birth-control pill a woman can take after unprotected sex to prevent pregnancy. In general, a wider range of contraceptive choices means women are doing a better job of using contraception, they say.
Both abstinence and the use of contraceptives are on the rise among teenagers, in particular, so fewer are getting pregnant to begin with. Among girls aged 15 to 19, the abortion rate has been dropping since the late 1980s – and fell another 27 percent between 1994 and 2000.
Another factor that may be contributing to the overall decline in abortions is the availability of ultrasound technology, showing the earliest fetal development – which, some observers suggest, leads some women to think twice about ending pregnancies.
But the bottom line is that the US still has one of the highest abortion rates in the industrialized West. And the abortion war is only intensifying.
Now that Republicans control both the White House and Congress, abortion opponents are readying a major push for new restrictions, starting with a ban on so-called “partial birth abortions.” Another bill would ban transporting a minor across state lines for an abortion so that she can avoid parental-notification laws; a third would criminalize harming a fetus during an attack on a pregnant woman.
Laws protecting clinic entrances have helped reduce clinic violence, and litigants have successfully used racketeering laws to thwart some of the most extreme antiabortion activists. Since 2000, US government approval of medical abortion through the use of mifepristone (RU486) has given women an alternative to surgical abortion.
Yet abortion-rights leaders still feel they are losing ground, and acknowledge that their opponents have gotten savvier about shaping public opinion and “chipping away” at abortion rights. Since 1982, the number of abortion providers has been declining.
But there are still young people eager to join the shrinking ranks, inspired by stories of risky, sometimes deadly, abortions before legalization.
Angel Foster, a medical student at Harvard University, is training for a career in women’s reproductive health – including providing abortions. As a young adolescent, she learned of her mother’s illegal, pre-Roe abortion.
“That experience was extremely traumatic for her – not the abortion itself, but what she had to do to get it,” says Ms. Foster, who, as president-elect of Medical Students for Choice, is working to beef up medical-school curricula on abortion and other issues of women’s reproductive health.
Foster has also worked in countries where abortion is illegal, such as Egypt, and seen firsthand what she calls the “psychological and physical consequences of a shortage of reproductive services.” But is she really willing to risk her life, working in a clinic in this country? “Even when I have kids, I can imagine doing this,” she says. “My husband and I have discussed this.”
Could Roe be overturned?
To some abortion-rights advocates, the Supreme Court is only one vote away from undoing 30 years of nationwide legalized abortion. But more likely, say legal scholars, there would need to be a larger shift in the court’s composition for such an earthshaking ruling. And even if the court eventually had a solid majority of justices who believed Roe v. Wade was improperly decided, it’s unclear that it would undo what many analysts, including antiabortion conservatives, call “settled law.”
“What’s hard for people who lack an acquaintance with the Supreme Court to understand is what a tremendously negative institutional, historical impact there would be on the stature of the court if they were to overturn it,” says David Garrow, a historian at Emory Law School in Atlanta. “That’s why I think it could never happen.”
But if that day were to come, the legality of abortion would once again vary state by state. According to NARAL Pro-Choice America, 17 states currently have greater protection for reproductive choice than the federal Constitution; 17 other states “could face sweeping criminal bans on abortion” if Roe were reversed.
Conservative writer Marvin Olasky prefers to look at the movement through a cultural lens. The culture that accepts abortion is changing, he says, and the current view that Roe is acceptable will eventually seem untenable. That, he suggests, could eventually lead to a legal shift. “How long did it take the court to overturn Plessy v. Ferguson?” he asks, referring to the 1896 case that endorsed racial segregation. “That took 60 years. We’re halfway there.”
This article courtesy of the Christian Science Monitor.