We are at an important inflection point in the fight for a woman’s right to abortion care and bodily autonomy. Within the last year, major shifts in Congress, the Supreme Court, the White House, and state legislatures guarantee epic battles to solidify abortion rights – Think of the history of abortion law in the United States as a Rubik cube, manipulated over time:
When the US Constitution was adopted in 1787 there were no abortion laws on the books -- abortion was a woman’s choice. If she wanted an abortion, no legal, social, or religious force would have stopped her, and she typically made her best-possible choice given her life circumstances, relying on self-administered herbal remedies ahead of a “quickening” gestational boundary that she could judge for herself from fetal movement. So far, so good. The law recognized the correct locus of abortion decisions – the woman herself. No puzzle to mess with. It worked.
Abortion laws began appearing in the early 19th century and by the early 20th century lawmakers, largely driven by male physicians eager to displace midwives and maintain control over the bodies of their female patients, had influenced lawmakers to make abortion a criminal procedure except in cases to save a mother’s life. Laws varied by state. The law had twisted common sense and prevailing common law into a difficult, geography-dependent puzzle for women -- and illegal abortion became the dangerous alternative solution to an unwanted pregnancy.
In 1973, the Supreme Court returned the law to abide by the sensible decision of a woman and her choice of advisors, restoring the typical woman’s logic of at what point in a pregnancy an abortion made sense for the circumstances of herself, her family, the fetus, and when it did not. States retained only limited (so we thought) latitude to restrict access to abortion to late term, i.e. third trimester, with exceptions even then for the life of the mother. Again, women had child-bearing options in life thanks to access to abortion care and, more importantly, reliable contraception.
Then all hell broke loose. Contraceptive science and the Supreme Court had knocked the patriarchal world order for a loop and the guys in power scrambled to twist abortion law out of rational bounds.
With men in control of state legislatures from 1973 until 1992, restrictions on abortion were passed in almost every state. According to the Guttmacher Institute, “…states have passed more than 1000 abortion restrictions. More than a third of them were enacted between 2011-2019” (See “The History of Abortion Law in the United States”).
So, what has to happen now to get us out of this mess? There is both new hope and new peril on all legal fronts.
The White House
1/22/2021 White House statement: “The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe. We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity. This commitment extends to our critical work on health outcomes around the world.”
Hopefully, with a new administration, we will see:
- The passing of the President’s suggested law codifying Roe v. Wade crafted with air-tight legal language that can survive court challenges and override state laws designed to circumvent it.
- Replace reversible presidential executive orders with more-permanent measures to:
- Repeal the Hyde amendment that prohibits federal funding for abortion care
- Repeal the Helms amendment that bans foreign aid to organizations that provide abortion information and services
Some legal scholars think that passing/repealing laws alone will not be enough, that an amendment to the Constitution is needed. See “Codifying Roe v. Wade will do nothing to save it from conservatives.” We’ll have to stay tuned and be ready if this develops.
As much as 77% of Americans believe the Supreme Court should oppose overturning Roe v Wade. See “Roe v. Wade: The Constitutional Right to Access Safe, Legal Abortion.” Other surveys vary, but nearly all show a majority favor upholding Roe.
The Supreme Court
Court watchers expect the current six conservative justices to, at a minimum, weaken Roe v. Wade abortion protections, and possibly overturn it outright. So, the onus is on Congress to codify Roe with air-tight text that passes constitutional muster.
Staunch conservative justices defer to lawmakers and are quite persnickety about following the text in laws. Late Justice Scalia, the dean of legal “textualism” said, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” (i.e., the text of the Constitution did not grant any such right.)
Lawmakers in 19 state legislatures have introduced almost 50 major bills this year to ban most or all abortions, according to the nonpartisan Guttmacher Institute.
For example, in Arizona, the state senate recently approved a measure banning abortions because of Down syndrome or other genetic abnormalities, allowing the father or maternal grandparents to sue a pregnant woman on behalf of a fetus – currently unconstitutional, but a law that could stand if Roe is overturned by the Supremes.
The hope here is that US Congress succeeds in passing a codified Roe statute that passes the Supreme Court constitutional review that would stop these laws in their tracks.
For the long haul, supporters of abortion care will have to elect like-minded politicians in every state. A heavy lift in the short term, to be sure.
What Should We Be Doing
In light of all the above, what do I hope to see in the coming months and years?
We citizens adapting my mother’s and grandmother’s traditional skill of canning to lock in our Rubik’s Cube of abortion law, secured on all sides, untwistable.