Historians' Watch

It Doesn’t Have to Be the End for US Abortion Rights

In the United States, abortion rights have been under threat for decades. But 2022 could be the year that the legal foundation for abortion rights across the United States – the Supreme Court case known as Roe v. Wade – is overturned, returning the question of abortion’s legality to individual states. In anticipation of what many legal scholars see as inevitable, some states like Massachusetts and Kansas have been moving to enshrine the right to abortions, while others like Texas and Mississippi have enacted punitive bans whose challenges in court have set the stage for Roe’s demise.

As historians of women’s health, we approach this moment with both dismay and an acknowledgement of the historical realities that have led us here. Supporters of abortion rights have repeatedly pointed to the precedent set by Roe, which legalized abortion in the first two trimesters of pregnancy. Most view it as a major feminist victory because it placed the right to choose in women’s own hands. Recent court rulings have echoed this theme, including a recent court opinion which expressed that there is “an unbroken line dating to Roe v. Wade, [and] the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before [fetal] viability.”

Protect Roe Rally [wikicommons]
But this contemporary interpretation is far different than the historical realities and trends the case reflected. Although Roe made abortion legal nationwide (and improved maternal mortality rates by a significant percentage), scholars have shown that the landscape post-Roe was still one of stratified access to abortion along class and racial lines. Subject to evolving legal interpretations about the purview of the 14th amendment, Roe is also vulnerable to legal challenges like those we are seeing today. The 14th amendment, one of the important Reconstruction amendments passed in the wake of the Civil War, established the parameters of citizenship and cited “due process” as a protection against incursions on life, liberty, or property. The rights of women in the United States including that of abortion, have thus hinged precariously on sympathetic male jurists’ interpretations of the amendment and are uniquely vulnerable to political shifts.

If Roe is lost, we must go back to the beginning, turning to history and what it can reveal about potential paths forward. This history tells us that far from being rooted in a recognition of feminism and women’s rights, Roe was the culmination of American physicians’ long fight for professional authority via the realm of reproductive health. Beginning in the 1840s with the founding of the American Medical Association, the medical profession historically viewed itself as the arbiter of national health, with a particular duty to manage reproduction. Their consolidation of authority over midwives and healers who traditionally handled the vast majority of pregnancy and labor would also extend to the provision of contraception and abortion. Although many physicians outright opposed birth control in the late nineteenth and early twentieth centuries, the AMA declared by 1937 that birth control must fall under the purview of physicians. Emboldened by the courts who had begun issuing rulings that expanded medical authority over birth control, doctors who staffed clinics, hospitals, and private practices became the main source for contraceptive devices including diaphragms and, later, the contraceptive Pill.

Abortion followed a similar trajectory. Outlawed in many states since the middle of the nineteenth century, doctors who performed abortions were subject to fines and professional consequences including loss of licensure, jail time, and censure. They also competed with midwives, nurses, and ordinary citizens who covertly performed terminations in hotels, alleyways, and private homes. By the 1960s, however, most states had reformed laws to allow doctors to perform abortions in accredited hospitals, where they also served on staff abortion committees, making decisions about who was eligible for the procedure.

By the time Roe was decided in 1973, privacy laws had evolved significantly to mean rights over one’s body. However, the ruling describes “a woman’s qualified right to terminate her pregnancy” based on physicians’ expertise and their right to practice their “medical judgment.” In the legal and social context of the early 1970s, Roe did symbolize major progress in advancing women’s rights, reflecting the gains of the feminist movement. Yet like the 19th amendment’s granting of the “right to vote” for women a mere fifty years earlier, the case’s potential for feminist liberation was inherently circumscribed. After all, Roe was decided by a panel of all male justices in a world where women could be fired for being pregnant, where many women could still not have independent bank accounts, and where Title IX had not yet transformed the landscape of gender equality in education. Roe was a start; it was never the end point.

Norma McCorvey, left, who was Jane Roe in the 1973 Roe v. Wade case, with her attorney, Gloria Allred, outside the Supreme Court in April 1989, where the Court heard arguments in a case that could have overturned the Roe v. Wade decision. Photograph by Lorie Shaull [wikicommons]
Further, in the aftermath of Roe, despite the opportunity for physicians to widely provide abortions, the American Medical Association never implemented universal training for abortion care, and many doctors responded to the stigma associated with performing abortions by refusing to perform them. Although legalizing abortion improved access and mortality rates across the board, its siloing into non-profit clinics has had serious consequences. Today we are left with overburdened clinics handling far too many patients traveling great distances to obtain care. Meanwhile, medical schools continue to leave abortion out of their curriculum, and doctors who courageously provide abortion care risk their lives and face harassment and abuse from antiabortion groups.

The unfortunate political reality is that if and when Roe is struck down, we will lose a federal right to abortion that has existed for fifty years. It will be an immeasurable loss, but one that was perhaps inevitable given the social, political, and legal contexts of its time. Scholars of women’s history know all too well that the story of the rights of women in the United States is one of incomplete gains and outright revocations over more than three centuries. To finally end this uncertainty, we must enshrine a broad swath of women’s rights in new laws that fulfill the promise of equality, equity, and citizenship at every level of government. Medical training must be required to include lessons in abortion care to maintain accreditations. Passing the Equal Rights Amendment with its explicit commitment to maintaining “equality of rights under the law” on the basis of sex would also provide a permanently secure legal path in defense of abortion. Challenges to legal abortion must be met with a firm and unwavering defense of women’s rights and their humanity. If we want to permanently enshrine the right of all American women to control their own bodies, rather than merely preserving Roe as is, we must focus on expanding the potential it always had but never fulfilled.

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