How abortion rights were won — and may soon be lost again
Less than a year from now, the landmark Roe v. Wade Supreme Court decision establishing a woman's right to an abortion would have celebrated its 50th anniversary of becoming the law of the land on Jan. 22, 1973. But as this week’s leak of Justice Samuel Alito’s draft opinion revealed, Roe may not last another month.
The demise of Roe, supporters and critics of the original decision told Yahoo News, has been long in coming, but the battle over abortion will certainly not come to an end when the court rules on whether to overturn the 1973 decision.
“The anti-abortion movement has been trying to strategically strip away the right to abortion for 50 years,” Alesha Doan, professor of women, gender and sexuality studies at the University of Kansas and author of "Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment," told Yahoo News. “Prior to the legalization of Roe, anti-abortion activists focused their energy at the state level, trying to prevent states from liberalizing their abortion laws. Immediately following Roe, the anti-abortion movement became a more organized, ideologically extreme national movement that also kept a local, grassroots focus.”
Advocates like Lauren Handy, director of activism at Progressive Anti-Abortion Uprising (PAAU), have celebrated the prospect of Roe’s collapse.
“When Roe v. Wade was first enacted, the pro-life movement didn't have a system set in place to take care of people who are in crisis pregnancies, who are seeking out abortions,” she told Yahoo News. “Whereas now, at this moment, we have more crisis pregnancy centers and more systems of care than there are abortion facilities out there.”
Because of these advances, according to Handy, abortion in any form is unacceptable.
“Abortion is violence,” she said. “It's been violence since the dawn of time, and it's violence now.”
The effects of overturning Roe will be felt almost immediately. A 2017 study by the American Public Health Association found that roughly 1 in 4 women in the U.S. are expected to get an abortion at some point in their lives. If the ruling is overturned, 58% of U.S. women of reproductive age (from 12 to 51 years old) will live in the 26 states that are considered “hostile” to abortion, according to the Guttmacher Institute, a pro-abortion-rights research organization.
While the ruling is likely to lead to the restriction of legal abortion in most Southern and conservative states, educators say not all women will fare equally. They argue that affluent women, for example, will be able to travel to states where abortion is legal, while impoverished women will suffer the most because they can’t afford to seek help elsewhere — in extreme cases subjecting themselves to illegal abortions.
“If abortion becomes an illicit market, poor women will more likely suffer from riskier procedures,” Darren Hutchinson, a professor of law at Emory University and an expert on abortion and reproductive rights, told Yahoo News. “Abortion prohibitions could [also] mean that poor women and teens are compelled to remain pregnant, exacerbating their poverty and greatly reducing opportunities for advancement. This, in turn, would worsen the intractable problem of intergenerational poverty.”
According to Doan, the rolling back of abortion rights will ultimately turn back the clock in some regions of the United States to a time when unsafe abortions led to the death of many women.
“Recriminalizing abortion will not curb the demand for it,” she said. “Prior to Roe, people experiencing an unwanted pregnancy sought out abortion services. However, the services available to people with few resources were unsafe and led to injury and death for thousands of people annually. We can expect to see similar patterns in 2022 if abortion is recriminalized.”
The fight for Roe v. Wade
The truth is, abortions have always been a part of American society.
Until the late 1800s, abortion was legal across the U.S. until the point when a woman could feel the fetus moving, known as quickening, which usually came around the fourth month of pregnancy. Starting in the 1820s, early signs of regulations began to prohibit different kinds of drugs and pharmaceuticals advertised as a way to induce abortion.
The earliest major opposition came in the late 1850s when the newly established American Medical Association, made up at the time of a majority of white male doctors, called for abortion to be criminalized. The group, in part, wanted to eliminate competition from midwives and nurses.
By 1880, most states in the U.S. had laws to restrict abortions, with rare exceptions in some states where abortion meant the difference between life and death for the woman. For the next century, waves of stiffer criminalization, established mostly by male-dominated industries, targeted women and abortion.
By 1910, abortion was made illegal in every state across the U.S., and only doctors, 95% of whom were male at the time, were permitted to make exceptions.
But abortions never stopped: They just went underground. In fact, in 1930, more than 2,700 women died from unsafe and illegal abortions, making up 18% of recorded maternal deaths that year, according to the Guttmacher Institute. The effects of this are still felt today.
“It has been found that women who would like an abortion but are denied one face worse economic circumstances, which affect both their well-being, as well as the well-being of their families,” Joelle Abramowitz, an assistant research scientist at the University of Michigan's Institute for Social Research, told Yahoo News. After a slew of campaigns that called for abortion law reform, thousands of women in the 1950s and 1960s were prescribed thalidomide to treat nausea in pregnancy. The drug was later found to cause severe birth defects, a discovery that increased support for reform of abortion laws.
Throughout the 1950s to 1960s, an estimated 200,000 to 1.2 million illegal abortions took place in the U.S. every year, according to Guttmacher. In 1962, for example, more than 1,500 women were admitted to Harlem Hospital Center in New York City after undergoing incomplete abortions.
Four years later, a group of nine doctors who eventually became known as the San Francisco Nine were sued by State Board of Medical Examiners for providing abortions to women who were exposed to rubella. The case was meant to deter doctors elsewhere from performing abortions for fear of being sued, but it eventually backfired. More than 200 doctors across the country, including every medical school dean in California, signed on to support the San Francisco Nine until the case was dropped. As a result, hospital committees in California could approve requests for abortion, resulting in one of the first abortion-reform cases in the country.
Shortly after that, in 1969, the National Association for the Repeal of Abortion Laws (NARAL), the first national group created to fight for the legalization of abortion, was created, and in less than five years, Alaska, Hawaii, New York and Washington had repealed their bans on the procedure.
At the top of the next decade, in May 1970, lawyers for a pregnant woman known only as Jane Roe filed a lawsuit in federal court in Dallas, challenging Texas’s abortion ban. The 22-year-old woman, whose real name was later revealed to be Norma McCorvey, was unmarried and had already given up for adoption a child she had had out of wedlock.
“I was a woman alone with no place to go and no job,” McCorvey later told the Southern Baptist Convention news service in 1973, according to the Washington Post. “No one wanted to hire a pregnant woman. I felt there was no one in the world who could help me.”
In the suit, McCorvey argued that Texas’s abortion restrictions were “inadequate” and “cruel,” according to court documents. An initial ruling that year struck down the ban, but an appeal later brought it before the Supreme Court.
Then, on Jan. 22, 1973, the landmark decision of Roe v. Wade was passed, protecting abortion in all 50 states. The decision came after decades of political and legal advocacy on behalf of women and the supporters of women’s rights. Others advocated with their lives.
“In the roughly 100 years when abortion was illegal in the United States, women suffered and died from botched abortions, with as many as 5,000 women dying every year in the decades leading up to the ruling,” Ranana Dine wrote in a piece for the Center for American Progress in 2013.
But soon after women gained the right to choose, the fight to strip that right away began.
The fight to overturn Roe v. Wade
Three years after Roe was passed, Rep. Henry Hyde, a Republican congressman from Illinois, created the Hyde Amendment, which restricted the use of federal funds on government insurance programs, effectively preventing Medicaid from being used for abortion services.
“I would certainly like to prevent, if I could legally, anybody having an abortion: a rich woman, a middle-class woman or a poor woman,” Hyde said on the House floor at the time. “Unfortunately, the only vehicle available is the [Medicaid] bill.”
Over the next four decades, several cases seeking to criminalize abortion came before the court, including a 2007 case against Planned Parenthood, the pro-abortion-rights nonprofit and abortion provider, which reached the nation’s highest court. In each instance, Roe was upheld.
“The movement initially targeted Congress to pass legislation that would criminalize abortion,” Doan, the University of Kansas professor, said. “Those efforts were unsuccessful, which prompted the movement to target abortion rights on three levels: local, state and national.”
Nearly a decade later, three conservative Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all appointees of President Donald Trump — were added to the bench, tipping the balance of the highest court in a more conservative direction and once again opening a space to repeal abortion laws.
States have also taken matters into their own hands in recent years.
Last May, Texas enacted the nation’s strictest abortion measure, banning abortions after six weeks, a devastating blow to women’s right to choose in the state and across the country.
“The life of every unborn child with a heartbeat will be saved from the ravages of abortion,” Texas GOP Gov. Greg Abbott said during the bill’s signing.
Since the bill went into effect in September, at least 1,400 Texans have traveled out of state each month for abortions, according to an analysis by the University of Texas.
“It’s because of powerful social movements that supported a whole new philosophy of legal interpretation that enabled a set of reasons that would get rid of Roe,” Bernadette Meyler, a constitutional law expert, told the Boston Globe. “This social movement has been building since the decision in Roe.”
For Doan, each anti-abortion legislative move was more calculated than the last.
“At the state level, the anti-abortion movement has campaigned, lobbied and supported elected officials to push for enacting incremental abortion restrictions at the state level to eliminate access to abortion,” Doan said. “And at the national level, the movement has continued to lobby for national legislation that restricts access to abortion and contraception, and challenge abortion rights in the courts.”
While many conservatives see abortion as murder, abortion rights advocates argue that not allowing women the right to terminate a pregnancy results in greater harm to society.
“Public health research is clear that access to abortion is part of a full suite of reproductive health care,” William Lopez, a clinical assistant professor of health behavior and health education at the School of Public Health at the University of Michigan, told Yahoo News. “To force pregnancy in a country with no paid parental leave policy, no universal child care and clear racial disparities in maternal health outcomes is akin to purposefully harming the health and economic well-being of middle- and low-income communities and communities of color.”
Abortion rights advocates recall decades of stories of women who died trying to give birth, even with significant pregnancy issues.
“We’re going to find ourselves in the position we were in before 1973 when Roe was in place, where people were literally dying for the right to choose,” Lauren Frazier, the director of communications and marketing for Planned Parenthood Southeast, told Yahoo News earlier this week. “So it is just really disheartening that we are back in this same fight that our grandmothers fought so long ago.”
Terrisa Bukovinac, founder and executive director of PAAU, the progressive anti-abortion group, argues that it’s more important to address the issues that motivate women to get abortions rather than the end result. She noted that a Guttmacher Institute study from 2005 found that most women cite financial constraints as the chief reason they want an abortion.
“As progressives, we want to address the reasons why people are seeking abortion, and address the systems and structures that have been set in place,” she said. “[Otherwise] they're being pigeonholed into this choice. That's not a real choice.”
A new precedent on precedent
The leak of the draft of the Supreme Court’s impending decision on Roe is a signal to many critics that many other privacy rights could be at risk.
"Every other decision based on the notion of privacy is thrown into question," President Biden told reporters Tuesday. “It's a fundamental shift in American jurisprudence."
For Diana Z. O’Brien, an associate professor of political science at Rice University, the fight over abortion rights is equivalent to the fight for women’s rights. She notes that globally, around 45% of all abortions are unsafe, according to the World Health Organization. Mainly, she says, that’s because women “lack access to safe, affordable, timely and respectful abortion care.”
“We see time and again that banning abortions doesn't reduce the need for abortion care,” O’Brien told Yahoo News. “Instead of taking away reproductive health care options from women via abortion restrictions, we should be making sure all women have access to more, better reproductive health care.”
Cover thumbnail photo illustration: Yahoo News; photos: Keystone/Hulton Archive/Getty Images, Saul Loeb/AFP via Getty Images