In recent debates over abortion laws, history has been front and center.
What Women Chose
Safer Than Childbirth
Abortion in the 19th century was widely accepted as a means of avoiding the risks of pregnancy.
At our rural county’s historical society, the past lives loosely in bulletins, news clippings, plat books, and handwritten index cards. It’s pieced together by pale, gray-haired women who sit at oak tables and pore over old photos. Western sun filters in, half-lighting the women as they name who’s pictured, who has passed on. Other volunteers gossip and cut obituaries from local newspapers.
I was sent here by hearsay. For years, my neighbor has claimed that the old cemetery in the low-lying field on my Wisconsin property contains more bodies than the scant number of tombstones indicates. The epic flood of 1978 washed away the markers of the nameless—Civil War soldiers, he says. I want to know who the dead were in life. After many walks through the cemetery, I’m familiar with the markers that remain. One narrow footstone reads simply, “MAS.” Three marble headstones rest at odd angles among the box elder trees. Stained, eroded, and lichen crusted, the stones belong to a boy and two baby girls who died in the 1850s and ’60s. On the boy’s is a relief of a weeping willow; on the sisters’ are rosebuds. Signs of young lives cut short.
I’m sitting at one of the oak tables when Carol, the historical society’s assistant curator, hands me a binder of cemetery records. A stranger has just sat beside me, her husband opposite us. I study the list of those buried on my land. I recognize the children’s names. I don’t see any men’s names. But there’s the name of a woman I’ve never heard of. I read it aloud: “Nancy Ann Harris.”
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Aborted Fetus and Pill Bottle in 19th-Century Outhouse Reveal History of Family Planning
Two 19th century outhouses provide rare archaeological evidence of abortion.
The archaeological discovery of presumably aborted fetuses in outhouses in New York along with pill bottles and historical records have led researchers to conclude that many 19th century American women had family-planning concerns similar to those of 21st century women.
Writing in this month’s Historical Archaeology journal, archaeologist Andrea Zlotucha Kozub of the Public Archaeology Facility at Binghamton University details her discovery of fetal remains and associated artifacts in two upstate New York domestic outhouses. Although potential aborted fetuses have been previously found in an outhouse associated with a 19th century brothel in Manhattan, Zlotucha Kozub’s study is the first to find this sort of evidence from middle-class houses.
“Ladies of the night may have had the recurring need for abortion,”Zlotucha Kozub writes, “but historical documents show that housewives, particularly those from the White, Protestant middle class, regularly used abortion as a form of contraception.” However, she notes that defining abortion in the 19th century is made difficult by the fact that the word was used to describe both naturally occurring and induced miscarriages.
My Grandmother’s Desperate Choice
My questions about my grandmother’s death – from a self-induced abortion – haven’t changed since I was 12.
As a child, I knew only that my grandmother had died when my mom was still a baby. The one time I asked what had happened to her, a bolt of panic flashed across my mother’s face. “A household accident,” was all she said.
I was twelve years old when she finally told me the truth. Some friends and I had got into a long after-school discussion about abortion, prompted by the gruesome posters that a protester had staked in front of the Planned Parenthood in our Vermont town. I had already begun reading my mother’s Ms. magazines cover to cover, but this was the first time I’d encountered a pro-life position. When I hopped into my mom’s car after school, I was buzzing with new ideas. I had almost finished repeating one friend’s pro-life argument when I saw the look on Mom’s face. That’s when she told me: the “household accident” that had killed her mother had, in fact, been a self-induced abortion.
Her hands were tight on the steering wheel as she spoke. I realized later that it wasn’t the topic of abortion itself that made her so uneasy—she was a nurse and a Roe-era feminist who usually responded straightforwardly to even the most embarrassing health questions. Rather, her anguish arose from sharing a truth that she’d been brought up believing was too terrible to speak.
Sitting beside her in the passenger seat, I struggled to absorb the meaning of what she’d told me. I had only just grasped what abortion was a few hours earlier, and was still trying on this new pro-life idea. “O.K.,” I said, “but what about the uncle or aunt I never had?” Mom whipped toward me, face taut with a rage and fear that I somehow understood had nothing to do with me. “What about the mother I never had?” she said.
Until recently, everything my mom knew about her mother fit into one three-ring binder. Inside were letters, documents, and photos that my mother had collected over the years. After the election last fall, as an Administration hostile to women’s reproductive rights settled into the White House, I asked her to send the binder to me, and did some sleuthing of my own. I got in touch with aging relatives and family friends, who offered crumbling bundles of my grandmother’s letters, carefully preserved for decades. My questions about her life and death hadn’t changed since I was twelve years old. What felt new, in the Trump era, was the urgency of her story.
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Sarah
An 1860 census record offers a glimpse into the choices available to pregnant women who were enslaved.
The known facts about Sarah’s life begin with one handwritten line in the 1860 U.S. Census. Even this brief individualization represented an anomaly. More than 99 percent of African Americans in Sumter County, Georgia, appeared without names in this simple government spreadsheet that apportioned power in the form of congressional representatives and electoral votes. Sarah was one of only 48 African Americans in the county named in this document by the local farmer and slaveowner who served as the census enumerator that year.
Sarah’s name harkened back to the wife of Abraham in the Book of Genesis and the start of important genealogies for Judaism, Christianity, and Islam. Born in Georgia about 1835, Sarah may have worked in a house or a kitchen or the cotton fields. The census worker listed her as unmarried; however, this marital status reveals little about her personal life because Georgia did not recognize enslaved unions. Sarah was pregnant though at the beginning of 1860. While the exact circumstances of her pregnancy went unrecorded, it can be inferred that Sarah did not want to bring a child — or perhaps an additional child if she was already a mother — into this world.
Sarah lived in southwest Georgia, a remote place with important links to broader histories. In 1864 and 1865, it became infamous for “Camp Sumter,” more commonly known as Andersonville, where 13,000 U.S. soldiers perished for want of shelter, wholesome food, and clean water. In the twentieth century, an interracial Christian commune launched a partnership housing program that became Habitat for Humanity. Jimmy Carter, born in Sumter County, became the first president born in a hospital and the first president from the deep South since before the Civil War. In 1860, though, Sumter County exemplified the “Black Belt” or what W.E.B. Du Bois later called “the shadow of a dream of slave empire” as he narrated his passage through the region. Slavery was more common than freedom here. The county’s enslaved population grew from 29 percent of the total population in 1840 to 52 percent in 1860. The 1840s and 1850s also saw an increase in large plantations. John B. Lamar, the brother-in-law of Howell Cobb who had large plantations across the state, kept 193 enslaved people in Sumter County alone on the eve of the Civil War.
Sarah had few choices and these options reflected an important day-to-day fault line under slavery. Slaveowners wanted enslaved women to produce children. Historian Sharla Fett writes that “soundness,” from the perspective of slaveowners, meant “an enslaved person’s overall state of health and, by extension, his or her worth in the marketplace.” Soundness equated to strength, a clean medical history, a good outward disposition, and for women it included the likelihood of having children. In January 1850, an overseer on John B. Lamar’s plantation in eastern Sumter County, settled his account with Polly Taylor, a local midwife. He paid her $16.50 “for midwife services to Antoinette, Harriet, Marry Ann, Viniy, Nancy Florida, and Fanny.”
Yet try as they might, slaveholders could never turn human beings into the extensions of their will. Contraception and abortion were methods of asserting control over one’s own body even if that body was legally owned by someone else. It could also mean resisting the dehumanization of slavery, including the threat of sexual violence posed by owners and overseers.
Contraception and abortion became more visible in nineteenth-century America until the Comstock Law of 1873 forbade “obscene, lewd, or lascivious” material in the mail and more and more state legislatures criminalized abortion. Yet before the Comstock Law, physicians specializing in abortions and merchants specializing in abortifacient pills made the practice readily available for women with money. By one estimate, and the trustworthiness of these estimates are debatable, there was one abortion for every five or six live births by the 1840s and 1850s.
The patent medicines advertised in newspapers to produce abortions would have been difficult for Sarah to procure. She and other women relied on medicine practiced by enslaved midwives, root doctors, and herbalists. Enslaved women used cotton root on plantations before apothecaries began selling it as an abortifacient. In 1860, southern white physicians discussed herbal ways that enslaved women were believed to end pregnancies. The plants included tansy and rue as well as the “roots and seeds of the cotton plant, pennyroyal, cedar berries, and camphor.”
Patterns of miscarriages caught the attention of slaveowners. In 1855, rumors abounded in eastern Sumter County that the cruelty of overseer Stancil Barwick had resulted in enslaved women losing pregnancies in the field. When John B. Lamar asked his overseer for an explanation, Barwick described two recent miscarriages. A woman named Treaty lost a child, but Barwick said he knew nothing about it. He admitted that Louisine, about five-months pregnant, worked in the cotton fields that July, but he asserted “she was workt as she please[d].” In Barwick’s telling, Louisine came to him and told him she was sick. “I told her to go home,” he said. “She started an[d] on the way she miscarried.” Barwick believed enslaved men had spread these rumors to injure his reputation. He gave no outward indication the women intentionally ended their pregnancies, and the ambiguity of miscarriage provided cover for individual decision making.
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Coat Hangers and Knitting Needles
A brief history of self-induced abortion.
Knitting needles. Arsenic. Deliberately falling. These are just some of the methods that women used to self-induce abortion in the early twentieth century, when abortion was illegal.
This is not simply a subject confined to history books any more. Evidence suggests that self-induced abortion is rising once more, thanks in large part to political efforts that prevent women — especially poor women and women of color — from obtaining an abortion in a safe medical setting. In Texas, where efforts to curtail access to abortion have been particularly effective, researchers estimate that anywhere from 1.7 to 4.1% of women of childbearing age have attempted to induce an abortion themselves.
Researchers defined self-induced abortion as any attempt by a woman to end a pregnancy herself. The most common method of self-induced abortion among Texas women surveyed was to use the drug misoprostal, which is fairly effective in ending early pregnancies and is used by many clinics in the United States. The drug is widely available in Mexican pharmacies, and some Texas women are able to access the medication that way, although they are compelled to take it without medical supervision. However, not all women have the option of buying misoprostal across the border. Other common methods included herbs, homeopathic remedies, and punching oneself in the abdomen. This suggests that for many women, the state of reproductive healthcare has actually gone backwards in recent years.
On March 2, the Supreme Court heard arguments on the constitutionality of the Texas law HB2, which imposed significant restrictions on abortion providers. Since the law was passed in 2013, more than half of the clinics providing abortions in the state have shut down. When the Court decides on the matter of HB2, it should take into consideration both the past and present of self-induced abortion.
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Pennyroyal, Mifepristone, and the Long History of Medication Abortions
Pennyroyal has been used as an abortifacient for over two thousand years.
Around midnight on September 16, 1866, Dr. W. A. Wilcox of Saint Louis, Missouri, was called to the home of “Mrs. L,” a thirty-year-old married mother of two. Mr. L had been out for the evening and returned home at eleven to find his wife unconscious. When Dr. Wilcox arrived, Mrs. L was pale and clammy; her breathing was heavy, her pulse was “feeble and quick,” and her extremities were cold. Her pupils did not contract when he shone light directly at them. Believing that she might have overdosed on opium, he forced “an emetic and fifteen to twenty drops of fluid extract of belladonna” down her throat every half hour and waited. After about three hours, Mrs. L began vomiting and regained consciousness. “The vomited matter,” Wilcox observed, “consisted of liquid smelling strongly of pennyroyal.”[1] When Mrs. L recovered enough to talk to the doctor, she told him she “had taken a teaspoonful of oil of pennyroyal” at nine in the evening before she went to bed. She had done this “in order to bring on her menses, which had been due several days.” Dr. Wilcox made no comment on this, except to note that Mrs. L began menstruating on September 17.
While “bringing on the menses” may sound to modern readers like code for abortion, it is impossible to say for certain that Mrs. L was trying to terminate a pregnancy. Regular menstruation was considered essential for a woman’s health, and many women took drugs – called “emmenagogues” – to bring on their menses if they were late. Most of the drugs used as emmenagogues could also be used as abortifacients. In Missouri in 1866, “bringing on the menses” was perfectly legal; inducing an abortion was not. Mrs. L may have lied to Dr. Wilcox about her intentions – or she may have been perfectly straightforward.
The drug in question, pennyroyal, is a species of mint with purple flowers. It smells like spearmint. And it has been used as an abortifacient for over two thousand years.
About half of all abortions in the United States are now medication abortions. In the past, that percentage was much higher. Up until the 20th century, most abortions, like Mrs. L’s, were medication abortions. A “surgical” abortion involved penetrating the cervix with some kind of sharp instrument. It was agonizingly painful and extremely dangerous. Even if the operation was successful at terminating the pregnancy, the ensuing infection could be deadly. Only with the advent of anesthesia and antisepsis in the late nineteenth century did surgical abortions become anything other than a desperate last resort. Most abortions were managed with medication, administered orally, vaginally, or topically. The medicines used were almost all herbal, and most had very long histories.
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Ben Franklin Put an Abortion Recipe in His Math Textbook
To colonial Americans, termination was as normal as the ABCs and 123s.
The year was 1748, the place was Philadelphia, and the book was The Instructor, a popular British manual for everything from arithmetic to letter-writing to caring for horses’ hooves. Benjamin Franklin had set himself to adapting it for the American colonies.
Though Franklin already had a long and successful career by this point, he needed to find a way to convince colonial book-buyers—who for the most part didn’t even formally study arithmetic—that his version of George Fisher’s textbook was worth the investment. Franklin made all sorts of changes throughout the book, from place names to inserting colonial histories, but he made one really big change: adding John Tennent’s The Poor Planter’s Physician to the end. Tennent was a Virginia doctor whose medical pamphlet had first appeared in 1734.* By appending it to The Instructor (replacing a treatise on farriery) Franklin hoped to distinguish the book from its London ancestor. Franklin advertised that his edition was “the whole better adapted to these American Colonies, than any other book of the like kind.” In the preface he goes on to specifically mention his swapping out of sections, insisting that “in the British Edition of this Book, there were many Things of little or no Use in these Parts of the World: In this Edition those Things are omitted, and in their Room many other Matters inserted, more immediately useful to us Americans.” One of those useful “Matters” was a how-to on at-home abortion, made available to anyone who wanted a book that could teach the ABCs and 123s.
In this week’s leaked draft of a Supreme Court opinion overturning Roe v. Wade, Justice Samuel Alito wrote, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” Yet abortion was so “deeply rooted” in colonial America that one of our nation’s most influential architects went out of his way to insert it into the most widely and enduringly read and reprinted math textbook of the colonial Americas—and he received so little pushback or outcry for the inclusion that historians have barely noticed it is there. Abortion was simply a part of life, as much as reading, writing, and arithmetic.
Franklin wasn’t even the first issuer of a math textbook on either side of the Atlantic to include among its materials a recipe for abortion, though his book certainly had the most reliable and explicit one. William Mather’s 1699 Young Man’s Companion also has one (the London book would inspire the very first arithmetic book to be printed in the colonies in 1705, by Franklin’s old boss Andrew Bradford). In Mather’s book, though, the recipe was short, misleading, and ineffective. It includes an entry for “Terms provoked,” a heading also found under comparable medical books with abortifacient concoctions (where the “term,” or period, needs “provoking”). Unfortunately for Mather’s readers, however, he prescribes “stinking Arach,” or goosefoot, which is an emmenagogue (an agent to stimulate or regulate menstruation) but not a reliable abortifacient. He also makes the even more dubious suggestion to “take a draught of White wine” under a full moon.
Women Have Always Had Abortions
History says the same thing over and over again.
Over the course of American history, women of all classes, races, ages and statuses have ended their pregnancies, both before there were any laws about abortion and after a raft of 19th-century laws restricted it. Our ignorance of this history, however, equips those in the anti-abortion movement with the power to create dangerous narratives. They peddle myths about the past where wayward women sought abortions out of desperation, pathetic victims of predatory abortionists. They wrongly argue that we have long thought about fetuses as people with rights. And they improperly frame Roe v. Wade as an anomaly, saying it liberalized a practice that Americans had always opposed.
But the historical record shows a far different set of conclusions.
In the 17th and 18th centuries, abortion was legal under common law before “quickening,” or when the pregnant woman could feel the fetus move, beginning around 16 weeks. The birth rate steadily dropped in the decades after the American Revolution, as couples sought to control the size of their families for a variety of reasons.
Abortion in the early stages of a pregnancy was common and generally not considered immoral or murderous. Along with breastfeeding, abstinence, the use of the rhythm method, vaginal douching and the use of herbs like pennyroyal or savin, which were believed to stimulate menstruation, abortion was considered part of the universe of what we now call “birth control.” By the 1820s, abortion services and contraceptive devices were advertised in newspapers with coded language.
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Female Physicians in Antebellum New York City
“Female physicians” did a lot more than provide abortions.
In New York City newspapers in the 1840s and ʼ50s, reporters regularly decried the “female abortionist” who terminated pregnancies for the “base lucre” that it brought them, the “wretched creature who builds her fortune upon the misfortunes of her sex, caring no more for their sufferings of mind or body than does the butcher for the lives of the animals which it is his business to take.” In journals and at conferences, doctors affiliated with the American Medical Association influenced state legislatures to criminalize abortion in the 1850s and 1860s partially through their depictions of abortion providers as unskilled mercenaries who were driven by their lust for riches. Over and over again, critics of abortion—in the antebellum era as well as today—referred to those who terminated pregnancies as “abortionists,” despite the fact that many practitioners, both then and now, offered women a wide variety of reproductive services. It would be somewhat like calling dentists “tooth extractors” or dermatologists “mole removers,” equating practitioners with one procedure alone and simultaneously denigrating that procedure; it was a strategy to drive abortion providers out of business.
Rather than “abortionist,” the women I have been studying, all of whom operated in antebellum New York City, called themselves female physicians. Madame Restell (aka Ann Lohman) is the most well-remembered among them today, but there were many others. Longworth’s city directories of the late 1830s list an Elizabeth Mott, female physician, residing at 119 Spring Street. Others in the trade, including Mrs. Bird, Madame Costello, and Mrs. Sarah Anne Welch, one-time competitors of Restell, used the same language, both in city directories and in their advertisements. Madame Costello (aka Catharine Maxwell) published a book on the subject in 1860: A Female Physician to the Ladies of the United States: Being a Familiar and Practical Treatise on Matters of Utmost Importance Peculiar to Women.
None of these women had MDs. The first woman in the United States to receive formal medical training, Elizabeth Blackwell, did not earn her degree until 1849. In using the term, however, Restell and others of her ilk were not actually attempting to deceive. She and other New Yorkers would have understood a physician as a practitioner of medicine, as distinct from a surgeon, who was capable of operating on people, was likely to be formally trained, and was without question male. It is also the case that no medical doctor was licensed at the time; with a handful of short-lived exceptions, states simply did not issue medical licenses until later in the nineteenth century. It is highly unlikely that any unsuspecting patient would have believed that a female physician was formally trained. For Restell, and others, the phrase meant that she was a woman who provided medical services to other women, medical services that were almost exclusively related to that which made women distinct from men: their capacity for pregnancy. There is no question that “female physician” eventually became synonymous with “abortion” in the minds of many, but that should not detract from what those who used the phrase might have meant by it. In employing this language Restell and others like her were not simply describing their trade; implicitly they were also asserting their claim upon this term at a moment when medicine was changing, women losing ground in a domain that had largely been theirs for centuries, if not millennia.
Restell, Bird, Costello, and others provided services far beyond abortion precisely because they were in the business of treating women, no matter their needs. Like a more commercialized version of a midwife, many of them ran lying-in hospitals. Women came to them for their confinements and were delivered of their children. Despite lurid accounts to the contrary, many perfectly healthy babies left Restell’s home in the arms of their mothers. Sometimes female physicians arranged for babies to be adopted or to be placed with wet nurses, especially in the era before adoption was legally regulated. In an 1850 advertisement, Catharine Maxwell explained of her “Lying-in institution”: “Sore nipples or broken Breasts speedily healed by Mrs. Maxwell. Piles, falling of the womb, and all female diseases, attended to.” Female physicians also treated amenorrhea, or the suppression of the menstrual cycle, largely by selling emmenagogues. They also sold contraceptives: both condoms and herbal remedies. Finally, female physicians terminated pregnancies, either through the sale of abortifacients (usually some combination of tansy, rue, turpentine, ergot, and other herbs and resins) or through manually bringing on a miscarriage. Patients had the option of delivering the fetus in the lying-in hospital for a fee or returning to their homes and miscarrying there. I realize that focusing on what female physicians offered their patients other than abortion might have the effect of appearing to justify their practice via these other services. Instead what I am hoping to demonstrate is that female physicians of the antebellum era were in the business of serving all of their clients’ needs in a version of what we might today call “patient-centered care.”
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‘Hag of Misery’
Madame Restell is central to the story of how American women’s reproductive freedom was dismantled in the second half of the 19th century.
On a gloomy New England afternoon last winter, I climbed the stairs of the Adams Free Library, a grand Beaux Arts building in the Berkshires, to join in a historical commemoration. The venue was itself historic, a designated Civil War Memorial, its second floor originally the meeting hall for Post 126 of the Grand Army of the Republic, the association of Union veterans of Adams, Massachusetts. The post’s high-backed chairs are still on display, along with flags, swords, and sepia photographs of soldiers; the coffered ceiling is emblazoned with the names of bloody battles: Cold Harbor, Gettysburg, Antietam.
The day I visited, a crowd filled the rows of folding chairs and spilled into the aisles. We were there to honor a leader in another historic battle, Susan B. Anthony, on the occasion of her 203rd birthday. Anthony’s childhood home, a mile and a half away from the library, opened in 2010 as the Susan B. Anthony Birthplace Museum. Its declared mission is “raising public awareness” of Anthony’s “wide-ranging legacy”—including her purported crusade against abortion.
You can spot the museum’s agenda in the offerings in its gift shop, from books (ProLife Feminism) to bumper stickers (WOMEN’S RIGHTS START IN THE WOMB), or in the inscriptions on the walkway’s bricks placed by donors, alluding to “the murder of the innocents.” On that February day at the library, Patricia Anthony, a museum board member and wife of a descendant, made that message explicit, enlisting an old civil war in service of a newer one. “Anthony and the women suffrage leaders allowed their previous work in the abolition antislavery movement to instruct them,” she told the assembled, not only to believe that “a human being could not be owned by another human being” but also that “a mother could not own her unborn child.” The antiabortion proprietors of the Birthplace Museum understand the uses of history.
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A Private Matter
Abortion and “The Scarlet Letter.”
As academic Arthur Riss puts it so well, “It is a truth now universally known that the scarlet letter upon Hester Prynne’s chest designates much more than adultery.” For another scholar, Laura Doyle, “Hester’s ‘A’ is a layered code,” one that gestures toward the concealed violence of American imperialism. And, in Franny Nudelman’s words, “Whether considered from a formal or a cultural vantage point, the letter’s power lies in its referential latitude, which allows it to accumulate and sustain a variety of readings under the rubric of its own simplicity. Its indeterminacy is indistinguishable from its inclusiveness, and both determine its critical stature.” Building on such formulations of the letter’s indeterminacy and layers of meaning, I propose another designation for the letter A, one that reflects or contains the following index from an 1846 issue of the National Police Gazette:
Abortion, prevention of
Abortion, seduction, and murder
Abortion, a felony
Abortionist, Restell the
Abortionist, convicted
Abortionists, detection of
Abortionists, horrible deeds of
Abortionists, more work of the
Abortionists, of New York
Abortionists, still at work
While I cannot prove that Nathaniel Hawthorne happened on precisely this page, it encapsulates a cultural phenomenon of which he must been aware. The letter folds the secret of a declined alternative within it, complicating the view that sex, pregnancy, and childbirth follow one from the other in an escapable train of consequences for Hawthorne’s protagonist.
The practice of abortion and its facilitation of nonreproductive sex in New England cities propelled medical and legal debates regarding pregnancy and its regulation in Hawthorne’s time, all of which played out in the press, in advertisements for abortifacients, in medical journals, and in the publicized trials of famed abortionist Madame Restell, the figure above named by the National Police Gazette.
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“She Had Smothered Her Baby On Purpose”
Enslaved women’s use of birth control, abortifacients, and even infanticide showed that they resisted by exerting control over their reproductive lives.
In Missouri in the spring of 1845, Vicey, an enslaved woman in her late twenties, gave birth to her fifth child, a son she named Stephen. In August of that same year, she killed him. Initially, Vicey claimed that Stephen died accidentally when she “fell into a deep sleep” with him in her arms. In preparation for burial, Stephen’s body “was placed away in the usual manner” and his death, attributed to his mother’s negligence, was not further investigated. Approximately six days after Stephen’s death, Vicey initiated a conversation with her enslaver, Catherine McMurtrey. Overwhelmed by guilt, Vicey confessed that “she had smothered her baby on purpose” by holding his “mouth and nose.” Prior to this confession, there is little to suggest that Stephen’s death was anything other than the accident that Vicey claimed it to be. As Catherine McMurtrey’s deposition testimony later revealed, however, Vicey asserted that her actions were not only deliberate, but they were also premeditated. When McMurtrey asked Vicey how long she had contemplated killing her son, she responded, “about three weeks.”
Enslaved women understood that their childbearing and rearing lay at the foundation of slavery. Consequently, preventing pregnancy or terminating a pregnancy represented more than an exercise of bodily autonomy, which was an act of resistance in and of itself; it represented a refusal to perform the labor deemed necessary for enslaved women. Vicey, like an unknowable number of enslaved women, consciously decided that she would not mother a child—to her, and others like her—her child’s death meant his freedom from slavery.
Although the specific impulses that led some enslaved women to kill their own children remain unknown, several women left no such doubts for their actions. Like Vicey, Margaret Garner saw infanticide as an act of emancipation. In 1856, Garner and her family ran away from the Kentucky plantations where they were enslaved. Their enslavers and Federal marshals tracked them to Ohio. Faced with capture and re-enslavement, Garner attacked her children, determined that they should not return to slavery and be “murdered by piece meal,” she decided that she “would much rather kill them at once and end their suffering.” In what was likely a spontaneous response to an immediate threat, Garner succeeded in killing her three-year-old daughter, Mary, but failed to kill her three other children.
Infanticide was an extreme means of maternal resistance. Preventing pregnancy and inducing abortion were other, likely more common but equally difficult to quantify, means of reproductive resistance. For enslaved women controlling their reproduction with preventatives and abortifacients represented the ultimate challenge to an enslaver’s authority as well as a reclamation of reproductive and bodily autonomy.
Constitutional decree ended the Trans-Atlantic Slave Trade in 1808, effectively prohibiting the importation of enslaved people from outside the United States. In the early nineteenth century, a number of additional factors contributed to the acceleration of the domestic slave trade resulting in the forced relocation of over a million enslaved people from the Upper South to the Deep South and Southwest. Soil degradation in the Upper South from decades of tobacco cultivation, the invention of the cotton gin, the acquisition of millions of acres of land and subsequent forced removal of indigenous peoples to make land cheaply available to white settlers, and the invention of petit gulf cotton all played a role in the expansion of slavery and the plantation system. Consequently, enslaved women’s reproductive labor became even more important to the continuation of the system of slavery.
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Abortion in Pre-Roe South Carolina
Uncovering Charleston’s “backstreet” abortion networks.
“Charleston was the place to come before Roe v. Wade, for abortions.”
Reminiscing about illegal abortion in South Carolina in the 1960s and early 1970s, this woman in her 60s, an oral history narrator, highlighted the roles of “backstreet” abortion networks in Charleston. She also told a story about a college friend who needed an abortion:
Because the medical university was here. Residents and interns would perform what we would call “No-Tell Motel” abortions….We came down for Citadel football and it was parents weekend or it was some kind of big weekend. And a girl who lived down my hall who was a senior had been dating a cadet, they were going to get married, she was in Charleston every chance she got. But that weekend or that Wednesday she came and asked if there was room in my car to come to Charleston and I said yeah….. We didn’t see ‘em at the parades, the Friday afternoon parade. We didn’t see ‘em at the football game Saturday. Sunday, when we were leaving to come back, all of us were there with our dates or whatever. She showed up and she looked God-awful, and we just thought, “Oh my god they had major fights,” because she had cried so much that her eyes were almost, she could see out of ‘em but you obviously knew she’d been crying. She said nothing on the way back to school… And we didn’t say an awful lot because we didn’t know what had gone on. Get back in and 3 o’clock the next morning, there’s a pounding on the room door across the hall from us …This girl was hemorrhaging. And I remember going into her room and looking at her and she’s lying on the bed and the bed is full of blood. She’d had an abortion, she’d gone up to Rivers Avenue [in North Charleston], to one of the motels.
This narrative was collected in 2016 by researchers from College of Charleston’s Women’s Health Research Team (WHRT), an interdisciplinary group of students and faculty that investigates health issues in order to empower women and girls in South Carolina and beyond.
Faculty and students on this project, entitled “Reproductive Health Histories,” gathered 70 oral histories focusing on reproductive health from women in South Carolina’s Lowcountry. Although we asked basic questions on fertility control and abortion, we were astounded at the in-depth knowledge about illegal abortion that our narrators demonstrated. These women provided intriguing glimpses into abortion realities in South Carolina’s recent past. They told us about the complexities of abortion: the diverse methods employed, the various spaces of abortion, and the roles played by “professional” abortionists.
Women over 50 and 60 had particularly telling things to say about abortion before it was decriminalized. They related a variety of abortion methods, including home or folk remedies such as herbal potions and turpentine consumption, surgical procedures at “professional” offices, and other self-inflicted mechanical procedures. According to one woman discussing the 1960s in Charleston, “you could go to one of these root doctors and you could get medicine for anything, and you could get medicine for preventing pregnancy or ending pregnancy.” Another told us:
I heard horror stories, just bits and pieces of people in the community that had gone off and had abortions in different methods. The clothes hanger method, of going to the doctor and how horrible that was. The people bleeding to death and getting infections. Stuff like that.
These remembrances of illegal abortion also raised additional questions: Who were the abortion providers? Where, other than “no-tell motels,” did abortions occur? How many illegal abortionists were brought to trial from 1900 to 1973?
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A Christmas Abortion
On Christmas Eve 1955, Jacqueline Smith died from an illegal abortion at her boyfriend Thomas G. Daniel’s apartment.
On Christmas Eve 1955, Jacqueline Smith died from an illegal abortion at her boyfriend Thomas G. Daniel’s apartment.
Jacqueline Smith was born in Lebanon, Pennsylvania in 1935. A quiet, driven and talented artist, she graduated from high school in 1953 and moved to New York City where she intended to become a fashion designer. In June of 1955, Jacqueline began to date Thomas, a sales trainee in a riding equipment shop. Although Jacqueline spent most nights in Thomas’s apartment, the stigma surrounding cohabiting and having premarital sex was so great that she kept an apartment with three other women in order to maintain appearances.
In November of 1955, Jacqueline discovered she was pregnant. When she shared the news of her pregnancy with Thomas, she hoped that he would marry her. At that time, unmarried pregnant women faced harsh consequences for their sexual activity, including job loss and stigmatization. Unwed mothers, pilloried and pathologized, faced limited prospects for marriage even as their children had the word “illegitimate” stamped on their birth certificates. Many young women went to maternity homes in other towns—their families would make excuses for their absence to hide the shame of unwed pregnancies—where they would have the baby and then give the child up in a closed adoption, all done in secrecy. Upon returning home, these women were expected to pretend that the pregnancy never happened and to make the most out of a second chance at respectability.
Thomas did not want to marry Jacqueline and began looking for a means to terminate her pregnancy. Over the next month, he asked colleagues and friends if they knew how to cause a miscarriage. Thomas convinced Jacqueline to take abortifacient pills, but these did not work. Jacqueline in the meantime went to her OBGYN twice for examinations, made plans for future checkups, and made arrangements to deliver the baby.
On Christmas Eve 1955, Thomas paid $50 to Leobaldo Pijuan, a hospital attendant, to perform an illegal abortion. Legal abortions—done at hospitals—required approval from a committee of doctors, which acted as deterrents for women seeking elective abortion. Hospitals usually authorized abortions in rare cases when a pregnancy endangered the health of the mother. Those unable to obtain hospital abortions would turn to underground abortionists, some of whom were skilled and some of whom were unskilled and whose lack of medical training physically endangered women. Leo Pijuan was one of the latter.
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How TV Lied about Abortion
For decades, dramatized plot lines about unwanted and unexpected pregnancies helped create our real-world abortion discourse.
n the second season of Mad Men, perpetually desperate Harry Crane needs to prove himself useful to his colleagues at Sterling Cooper. When he hears the CBS drama The Defenders is losing advertisers because of an abortion plot line — a 1962 real-world event — he tries to convince a lipstick company to buy airtime. The Belle Jolie executive balks at “entering the debate,” leaving Harry aghast at the lack of foresight. “Women,” he says incredulously, “will be watching!”
He was right, but so was the Belle Jolie exec.
For decades, abortion on television was largely depicted as a debate in narrative form, one that pitted melodramatic anti- and pro-abortion rights stances against each other through characters audiences knew and loved. Gretchen Sisson and Katrina Kimport, researchers at the University of California San Francisco, argued in 2014 that, over time, these narratives collectively created “common cultural ideas about what pregnancy, abortion, and women seeking abortion are like.” The result, according to Sisson and Kimport, was an inaccurate picture of who seeks abortions, and why.
Fictional abortions were also overdramatized. From the origins of television all the way through the past decade, overwhelmingly male TV writers created plot lines that framed abortion as a moral issue, amping up conflict for maximum emotional journeys. It isn’t hyperbolic to say that television significantly changed the way America understood abortion and, as a result, deeply influenced public policy.
Andrea Press, a communications professor who documented this relationship in a 1991 study, concluded that “when the moral language adopted by television differs from that of viewers, television viewing influences viewers to adopt its terms.” The medium is not a passive bystander in our social debates; it is an active participant, shaping attitudes and action.
In other words, the stories we see on TV help create who we are.
To Have and to Hold
Griswold v. Connecticut became about privacy; what if it had been about equality?
When Louise Trubek and her husband, Dave, drove from New Haven to Washington to listen to oral arguments before the Supreme Court in Trubek v. Ullman, she was pregnant. The Trubeks had met at the University of Wisconsin, Madison, and married in 1958. The next year, while they were both students at Yale Law School, they filed a complaint against the State of Connecticut about a statute that prevented their physician, C. Lee Buxton, the chief of obstetrics and gynecology at Yale Medical School, from discussing contraception with them. They wanted to have children one day, according to the complaint, but “a pregnancy at this time would mean a disruption of Mrs. Trubek’s professional education.” By the time that Trubek v. Ullman reached the Supreme Court, in the spring of 1961, Louise Trubek had graduated from law school and was ready to start a family. The case was dismissed, without explanation.
This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
In the half century since Griswold, Douglas’s arguments about privacy and marriage have been the signal influence on a series of landmark Supreme Court decisions. In 1972, Eisenstadt v. Baird extended Griswold’s notion of privacy from married couples to individuals. “If the right of privacy means anything,” Justice William Brennan wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Griswold informed Roe v. Wade, in 1973, the Court finding that the “right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” And in Lawrence v. Texas, in 2003, Justice Anthony Kennedy, writing a 6–3 decision overturning a ban on sodomy, described Griswold as “the most pertinent beginning point” for the Court’s line of reasoning: the generative case.
A few weeks ago, the Supreme Court heard oral arguments in Obergefell v. Hodges, a consolidation of the petitions of four couples seeking relief from state same-sex-marriage bans in Kentucky, Michigan, Ohio, and Tennessee. The federal Defense of Marriage Act was struck down by the Court in 2013, in U.S. v. Windsor, a ruling in which Kennedy cited and quoted his opinion in Lawrence. But bans still stand in thirteen states. In 2004, Ohio passed a law stating that “only a union between one man and one woman may be a marriage valid in or recognized by this state.” The Ohioans James Obergefell and John Arthur had been together for nearly twenty years when Arthur was diagnosed with A.L.S., in 2011. In 2013, they flew to Maryland, a state without a same-sex-marriage ban, and were married on the tarmac. Arthur died three months later, at the age of forty-eight. To his widower, he was, under Ohio law, a stranger. The Court is expected to issue a ruling in June.
The coincidence of the fiftieth anniversary of the Court’s ruling in Griswold and its anticipated decision in Obergefell makes this, inescapably, an occasion for considering the past half century of legal reasoning about reproductive and gay rights. The cases that link Griswold to Obergefell are the product of political movements that have been closely allied, both philosophically and historically. That sex and marriage can be separated from reproduction is fundamental to both movements, and to their legal claims. Still, there’s a difference between the arguments of political movements and appeals to the Constitution. Good political arguments are expansive: they broaden and deepen the understanding of citizens and of legislators. Bad political arguments are as frothy as soapsuds: they get bigger and bigger, until they pop. But both good and bad constitutional arguments are more like blown-in insulation: they fill every last nook of a very cramped space, and then they harden. Over time, arguments based on a right to privacy have tended to weaken and crack; arguments based on equality have grown only stronger.
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Judge Kacsmaryk’s Medication Abortion Decision Distorts a Key Precedent
One of the cases on which the judge relies said the opposite of what he claims it did.
Late on Wednesday, the U.S. Court of Appeals for the 5th Circuit issued a partial stay of Judge Matthew Kacsmaryk’s ruling suspending the Food and Drug Administration’s approval of mifepristone, one of the two drugs used in medication abortions and a drug used in miscarriage care. The decision will allow mifepristone to remain on the market, but it will keep changes the FDA made to the drug’s approved use in 2016 blocked, as well as the agency’s 2021 finding that the drug could be distributed by mail.
Kacsmaryk’s opinion was riddled with historical inaccuracies and distortions — none more egregious than his reference to the 1936 decision by the U.S. Court of Appeals for the 2nd Circuit in United States v. One Package. Kacsmaryk states that the decision affirmed the illegality of shipping abortion-related devices by quoting two short passages.
But this is wrong: One Package did not concern mailing devices that the recipient could use for an abortion — instead, the case centered on the legal right of physicians to import devices for research and prescription, when the well-being of their patients was at stake. The case was a win for medical research on contraception and women who wanted control over their fertility. The case’s background and history expose how Kacsmaryk fundamentally misinterprets the case, and why his reliance upon it to impede the use of mifepristone is ill-informed.
In June 1932, Margaret Sanger, then the best-known advocate for contraception, set in motion what would become United States v. One Package.
After decades of advocacy, Sanger was frustrated with the slow progress toward passing legislation to enable unfettered access to contraception for women (diaphragms and cervical caps, specifically). So, she and free-speech advocate and attorney Morris Ernst set up a test case to assess the medical legitimacy of contraception and the rights of doctors to research medical devices.
The medical director of the Sanger-led Birth Control Clinical Research Bureau, Dr. Hannah Stone, agreed to receive a package of pessaries (a.k.a. diaphragms) from a Japanese doctor, Sakae Koyama, whom Sanger had befriended on her travels to Japan. Section 305a of the U.S. Tariff Act of 1930 had recently extended the 1873 Comstock Act to foreign imports of materials perceived as obscene. And so, Sanger and Stone anticipated that the U.S. Customs Office would seize the shipment of pessaries under this law. Then, Ernst would defend Stone and the right to import contraceptives in court.
And that is precisely what happened.
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(Still Being) Sent Away: Post-Roe Anti-Abortion Maternity Homes
In the years before Roe v. Wade, maternity homes in the United States housed residents who, upon giving birth, often relinquished their children for adoption.
In the years before Roe v. Wade, and in a context of severe stigma of out-of-wedlock pregnancies, maternity homes in the United States housed residents who, upon giving birth, often relinquished their children for adoption. One consequence of the legalization of abortion in 1973 was that fewer American women and girls were “sent away” to maternity homes for the duration of their pregnancies. Far from a relic of the pre-Roe past, though, maternity homes in the 1980s and 1990s remained a feature of the US’s landscape, albeit still well hidden. These institutions differed from their predecessors, however, for many of these newer homes were explicitly affiliated with the anti-abortion movement. Indeed, numerous post-Roe maternity homes enjoyed close relationships with local crisis pregnancy centers (CPCs) – right-to-life institutions that similarly worked to dissuade women from terminating their pregnancies. Post-Roe maternity homes also partnered with state and private adoption agencies to make adoption a viable alternative to abortion, and some were sponsored by Religious Right spokespeople such as Jerry Falwell, Billy Graham, and Pat Robertson.
In the hopes of “saving” those “at risk” of terminating their pregnancies, anti-abortion maternity homes advertised themselves as safe havens, offering housing and other resources to women and girls experiencing crisis pregnancies for little or no fee. While some pregnant people may have found much-needed comfort and security in these services, other residents’ stays were marred by abuse. Deliberately hidden from public view, little is known about these ever-elusive institutions. Nevertheless, the evidence we do have from residents’ testimonies and anti-abortion literature offers a glimpse into the anti-abortion movement’s evolving strategies in the 1980s and 1990s and sparks pertinent questions about women’s reproductive agency.
Political scientist Laura Hussey describes maternity homes as part of the anti-abortion movement’s “service” branch because, like CPCs, they worked to challenge the accusation that anti-abortion activists did little to temper the financial and emotional burdens of pregnancy and childrearing. Operating against a backdrop of welfare cuts, maternity homes hoped to provide an attractive alternative to abortion by providing the comfort and security necessary to make carrying one’s pregnancy to term possible. For instance, Bayard House, an independent maternity home in Wilmington, Delaware proclaimed that many of its residents felt “deprived of a free choice in deciding whether or not to keep their pregnancies because they lack[ed] necessary support or resources.” As this appropriation of the feminist language of reproductive “choice” makes clear, maternity homes sought to demonstrate their concern for pregnant women as well as fetuses: an increasingly salient anti-abortion tactic in the 1980s and 1990s.
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Who Provided Care
San Francisco’s Queen of Abortions Gets Her Moment of Recognition
Two new biographies look at the life of Inez Burns, an uncompromising and extravagant turn-of–the-century woman.
It was there, in the relative tranquility of her little cottage in the Women’s Department at San Quentin at Tehachapi and later at the federal prison at Alderson, in the twilight of her sixties, that notorious abortionist Inez Burns had her feminist awakening. More important than making money (and she loved making money), her work helped women to take charge of their bodies in a world controlled almost entirely by men — men who wanted to have their cake, eat it, and then moralize about the wickedness of baking in between visits to their mistresses.
She saw the church and its second class treatment of women as complicit in women’s suffering; all those years of watching Catholic women enter her clinic, trailing six children and desperate to prevent a seventh, left a sour taste in Burns’ mouth, even more so than their legislative efforts to put her out of business. In her eyes, the church was adding generations of misery around the world for the pleasure of men, and making slaves of half of the population by giving men unchecked control over the reproductive systems of their wives, girlfriends, and daughters. What had for so long been purely business had become a crusade for her, and when she got out of prison, she went right back to work.
Burns never met a man she couldn’t charm until she crossed paths with pathologically ambitious attorney Edmund G. “Pat” Brown, who aimed to launch his political career out of the ashes of her empire. He couldn’t have picked a tougher nut to crack — San Francisco’s “Queen of Abortions” was as tough as the steel needles she used to perform her services on thousands upon thousands of women. Burns’s improbable, fantastically scandalous trajectory took her from humble beginnings in a San Francisco slum to a Pittsburgh pickle packing plant, a fateful manicurist job at the ritzy Palace Hotel, and then onto her lifelong career as the West Coast grande dame who — assisted by her team of nurses in crisp white uniforms — provided safe, hygienic abortions on demand to WWI war widows, rape survivors, scorned lovers, Hollywood stars, and the Gilded Age elite alike. She made unholy amounts of money, bribed the cops with abandon, changed husbands like hats, sashayed through theater premieres in Paris couture, had a run in with one of Al Capone’s Mafia thugs, almost certainly dispatched one of her own husbands with arsenic — and she did it all with so much style, cunning, and hard-nosed grit that, for decades, she was untouchable.
Despite her larger-than-life influence, Inez Burns remains an obscure figure in American history, even within the canon of feminist scholarship. The thought of digging up Burns’ secrets and connecting the scattered dots of her extraordinary life makes for an intimidating prospect, considering the secretive nature of her business. (She often employed code words like “glantham” for cash, “Emily” for phantom pregnancies, and “ni-dash” for “don’t you dare open your mouth!” for an extra layer of security beyond her hidden staircase, trapdoors, and private cash reserves). However, the unsinkable Mrs. Burns’ tale of woe and wickedness captivated not one, but two authors in recent memory. 2017 saw the release of Lisa Riggin’s San Francisco’s Queen of Vice: The Strange Career of Abortionist Inez Brown Burns, and this month sees the release of Stephen G. Bloom’s The Audacity of Inez Burns: Dreams, Desire, Treachery, & Ruin in the City of Gold. It’s surely no accident that both books were released within spitting distance of the 45th anniversary of Roe vs. Wade, the 1973 Supreme Court ruling that effectively legalized abortion in the United States.
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Abortion’s Past
Before Roe, abortion providers operated on the margins of medicine. They still do.
Life before Roe. For those of us who lived it, it is hard to believe there is already a generation that can only imagine it. It is the stuff of women’s cinema, unveiling conversations, demonstrations, stories cast in print or still untold.
I was a teenager back then, pregnant and desperate. Too terrified to make the midnight trip to the back alley with a password and hundreds of dollars (which I didn’t have anyway). The “therapeutic abortion” committee—strangers who prodded my body, exposed my deepest secrets, then told me “no.” The pain and violence of carrying a pregnancy to term against my will. The insidious punishment of sharing a hospital room with nursing mothers, as I nursed the indelible memory of her inked footprint before she was whisked away. Abandoned by my family, left to pick up the pieces of a broken life. And to think I was one of the “lucky” ones—still alive—not poisoned, perforated, hemorrhaging, raped, or dead, like thousands of other women.
But life before Roe is not only about the dark legacy of back alley butchers and women denied. It is also a story of resistance, of a movement of disparate organizations and individuals who operated underground and pressed in the streets, courts, and legislatures for safe and legal abortion. Carole Joffe’s Doctors of Conscience examines this historical period through the eyes of 45 mainstream physicians who began practicing medicine during the 30 years before Roe. Diverse in their origins and motivations, these physicians were each eventually compelled by what they witnessed to become involved in abortion activity, risking their careers and personal lives. They were perhaps a minority among the many “heroes” of the illegal abortion era. But as Joffe points out, precisely because they were part of the mainstream medical profession, “their stories tell us most about the difficult history and uncertain place that abortion services have had within the larger medical establishment.”
Doctors of Conscience does not offer detailed accounts of individual women seeking abortions, or the oft-quoted public health statistics on the morbidity and mortality of illegal abortion. Rather, Joffe captures the “lengths to which women would go” to control their reproduction in horrific snapshot images that come from the health professionals who treated them: emergency rooms teeming with women bleeding from corrosive agents, broken Coke bottles, catheters, and coat hangers; late-night operating rooms crowded with stretchers holding women who waited to have their instrumented uteruses evacuated or removed; a woman delivered to the emergency room with a paper bag containing eight feet of her intestines. This collective human suffering is attended by a palpable paranoia permeating the wards in which it occurred—the pervasive police presence; physicians, under the threat of the law, forced to grill patients about the identities of their abortionists in the moments before they died. No less chilling is the insidious misogyny that stigmatized these women, and devalued their lives. As one physician recounts, the special wards of public hospitals where women suffered and often died from septicemia, or overwhelming infection, were referred to as “septic tanks.”
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Before Roe v. Wade, U.S. Residents Sought Safer Abortions in Mexico
Transnational networks have long helped pregnant people navigate treatment options.
In the years after World War II, public frenzy developed over the proliferation of “abortion mills.” Across the country, well-known and at times well-respected abortion providers were raided and clandestine clinics closed. These aggressive tactics emerged during a period when, as one historian put it, there was “an assault on female independence” and an embrace of “traditional motherhood” as men returned from war looking for work and marriage.
While some women enlisted all-manner of grotesque tools or crude potions to end their pregnancies, others began traveling to Mexico for abortion services. Although the Catholic Church held some sway over the Mexican government’s position on birth control, there were fissures as the Mexican government sought to distance itself from the church in the early years of the 20th century. At the same time, the border region provided cover for such illicit activities as gambling, prostitution and alcohol consumption during Prohibition.
And so, by the 1940s, abortion providers began appearing along Mexico’s northern border in cities such as Ciudad Juárez and Tijuana, largely to serve U.S. residents in search of abortion care. They weren’t legal, but police, judges and attorneys in Mexico took kickbacks and turned a blind eye to the emerging business.
By the 1960s, with assistance from various organizations, including the Society for Human Abortions (SHA) in San Francisco and the Clergy Consultation Service (CCS) headquartered in New York, women from all over the United States received information about reliable abortion providers in Mexico. Some women drove hundreds of miles, while others took “abortion flights” — leaving Friday afternoon and returning Sunday morning — to the El Paso airport and crossed the border by foot or taxi to El Paso’s sister city Ciudad Juárez for the procedure.
People from all walks of life contacted SHA and CCS for guidance on finding reputable abortion providers in Mexico. One father pleaded with Patricia Maginnis, the feminist co-founder of SHA, to help him find an abortion practitioner for his young daughter who had become pregnant after a sexual assault. A mother wrote a letter to the organization asking for help when she could not physically or financially bear to have a fifth child. SHA received countless letters from college-age women seeking to end unplanned pregnancies because they wanted to complete their education on their own terms.
While it is difficult to know the class status and racial demographics of those seeking abortion information via SHA and CCS referrals — it was an illicit service after all — from missives directed to SHA, we can glean that people were able to scrape together the $250-$300 needed for the procedure and the additional $100 for transportation and lodging. It was a significant sum of money ($300 in 1965 would be approximately $2,500 in today’s dollars.) Still, it was minimal compared to the then-thousands of dollars women might spend trying to receive authorization from doctors and psychiatrists for abortions classified as legal in the United States.
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The Women of Jane
The story of an underground abortion service that operated pre-Roe vs. Wade.
Before the U.S. Supreme Court decision on Roe v. Wade, abortion was illegal throughout most of the country. But that doesn’t mean women didn’t get them.
In 1965, an underground network was formed in Chicago to help pregnant women get abortions. At first, they connected women with doctors willing to break the law to perform the procedure. Eventually, they were trained and began performing abortions themselves. The group called itself “Jane.” Over the years, Jane performed more than 11,000 first and second-trimester abortions.
This story first aired in 2018 on All Things Considered. For more info check out Leslie Reagan’s book When Abortion Was a Crime and Laura Kaplan’s, The Story of Jane. Banner image: (From left) Martha Scott, Jeanne Galatzer-Levy, Abby Parisers, Sheila Smith and Madeline Schwenk were among the seven members of Jane arrested in 1972.
The transcript for this episode is available here in English.
Abortion Was Illegal. This Secret Group Defied the Law.
We tell the story of the Jane Collective, which provided thousands of illegal abortions fin Chicago rom 1969 to 1973, before Roe v. Wade.
The Supreme Court has reversed Roe v. Wade, the 1973 ruling that established the constitutional right to abortion. We tell the story of the Jane Collective, which provided thousands of illegal abortions from 1969 to 1973.
Using tactics worthy of a spy novel, the Jane Collective carried out thousands of abortions in Chicago from 1969 to 1973. A woman seeking to end her pregnancy could leave a message on an answering machine. A “Callback Jane” phoned her, collected information and passed it to a “Big Jane.” Patients would be taken first to one address, “the front,” for counseling. They were then led, sometimes blindfolded, to another spot, “the place,” where an abortion was performed.
Failing to Embed Abortion Care in Mainstream Medicine Made It Politically Vulnerable
Actions by the medical profession in the 1970s still reverberate today.
By the time of Roe, a majority of the medical community supported legal abortion — but not necessarily those who provided it, who remained stigmatized and thought to be more closely associated with a back-alley quack than a respected medical professional. Beyond their discomfort with abortion providers, the largely White, male and conservative medical profession of that era was ambivalent about incorporating abortion care for other reasons.
The threat that abortion posed to conventional medical authority was one. As a doctor complained at an American Medical Association (AMA) meeting in 1970, where legalization was under discussion, “Legal abortion makes the patient truly the physician: she makes the diagnosis and establishes the therapy.” That this scenario would typically involve a female patient dictating a course of treatment to a male doctor only compounded the discomfort in an era when medical authority was almost entirely reserved for men and motherhood was considered normative for women.
Moreover, the evident association of abortion with social movements — both for and against legal abortion — was disturbing to many in a conflict-averse profession. On one hand, many in medicine were less than sympathetic to the feminist activists demanding “abortion on demand” in the years leading up to Roe. On the other hand, four days after the Roe decision was announced, the Church amendment, which offered “conscience protections” for health-care workers who refused to participate in abortion, was reintroduced in Congress (and passed several months later). This quick action sent a signal that this procedure would be more scrutinized than the rest of medicine.
What is striking about the years after Roe affirmed a constitutional right to abortion were the measures that were not taken.
Very few medical organizations took the steps that would normally be expected after a major policy change. Most medical groups issued no guidelines, standards or even statements of support. Leaders within OB/GYN did not make any effort at education, for legislators or the general public, about the health benefits of legal abortion. Most significantly, the organizations charged with establishing residency requirements in OB/GYN did not mandate routine training in abortion for another 20 years. Even then, Congress immediately weakened the mandate. In short, at a crucial time, medical leaders passed on the opportunity to fully integrate abortion care into mainstream medicine.
The significant violence and harassment that is now central to abortion politics in America did not begin in earnest until 1988, some 15 years after Roe, when a new organization, Operation Rescue, began blockades and clinic invasions. Days before the first abortion doctor was assassinated in 1993, Randall Terry, the organization’s founder, told a crowd, “We’ve found the weak link is the doctor. … We’re going to expose them, we’re going to humiliate them.”
READ ENTIRE ARTICLE AT THE WASHINGTON POST
Learning and Not Learning Abortion
The fact that most doctors like me don’t know how to perform abortions is one of the greatest scandals of contemporary medicine in the US.
I don’t know how to perform an in-clinic abortion (also known as a surgical abortion), or how to counsel a person about one; I also don’t know how to provide follow-up care, or how to identify and manage the rare complication that might arise—at least, no more than any other literate adult with access to the internet. The trouble is, I am a physician of internal medicine: my theoretical purview is all the organs of the adult body.
It’s true that my clinical job is what the poet John Berryman would’ve called “thinky”—fewer hands-on procedures; more diagnosis, counseling, and prescription—but I ought to know more than I do. Surgical abortion is a common procedure performed on an organ half the people on the planet possess. The fact that most doctors like me—and even my colleagues in obstetrics and gynecology—don’t know how to perform abortions is one of the great scandals of contemporary medicine in the US. As the recent Dobbs decision accelerates the 21st century’s steady dismantling of abortion rights in America, it’s worth examining how the medical profession has, for generations, systematically limited the extent to which doctors come to learn and practice the procedure.
Currently only 24 percent of ob-gyns nationally provide abortions. The American Medical Association (AMA) continues to refuse to make abortion education a curricular mandate across accredited schools, and half of all medical schools provide either zero or just one lecture on abortion. Even among specifically ob-gyn programs, only half provide routine abortion training to residents; there is currently no mandate that education or training on abortion be provided during students’ ob-gyn clinical rotations. Eighty-nine percent of US counties have no abortion providers in them at all. It is not by accident that the medical profession on the whole is bad at abortion and its accompanying care, counseling, and discourse.
With the end of the Roe era upon us, I share the general worry about a rise in unsafe abortions for people without other options, although I’m also heartened by the fact that the patients I know are often astonishingly creative at obtaining medications, procedures, and forms of care that their doctors can’t or won’t provide, often with great adaptability and courage. What worries me more is that given the moral authority still accorded to us doctors—the second most respected profession in the US for its ethics, after nurses, according to Gallup—our collective ineptitude around abortion might make it seem like maybe there isactually something wrong or untoward about abortion itself, that maybe the “safe, legal, and rare” Clintonism really is the decorous response. After all, there’s a reason why contemporary doctors are also inept at bloodletting, phrenology, and lobotomy. Mustn’t incompetence signal an essential noncentrality, a certain dodginess?
Meet the Queen Bee of Victorian Abortionists
The notorious Madame Restell lived large and fearlessly in a century not so far, far away.
Jennifer Wright opens her painfully timely biography of Madame Restell, the notorious “abortionist of Fifth Avenue,” with her final arrest, in 1878, at the hands of the anti-vice crusader Anthony Comstock. For Comstock, a Victorian zealot who smeared his sexual obsessions all over American life well into the 20th century, this was the climax of an epic struggle between Satan’s handmaiden and his flaming sword of righteousness. To Restell, a grandmother in her late 60s, it was merely the latest in a long line of tedious interruptions to her business.
Born Ann Trow in 1811 in the Cotswolds village of Painswick, she became a maid-of-all-work, a grueling job that carried the constant threat of being “seduced or outright raped.” Although Ann avoided this fate, the experience was formative: Throughout her life, she felt sympathy for servants in trouble, and offered the members of her own staff better-than-average pay and working conditions. At 16, Ann married a tailor, and in 1831, with their toddler in tow, the family sailed for New York alongside thousands of other immigrants competing for work. They scraped along for two years in the Five Points slum before Ann’s husband, an alcoholic, died of typhoid.
In an era when some 10,000 prostitutes worked a city of a quarter-million people, the pretty young widow avoided sin and addressed its consequences instead. She befriended a pill compounder — a role Wright likens to a modern-day supplement shill — who taught her to assemble drugs from ingredients like pennyroyal, rue, Queen Anne’s lace, oil of tansy and turpentine, which have a long, perilous history of ending pregnancies. He may also have been the one who taught her to perform surgical abortions using whalebone. Ann apparently had a knack for gauging the dosage and mitigating the taste, and before long she struck out for herself, helped by her brother and her second husband, an easygoing, irreverent Russian immigrant named Charles Lohman. Together they dreamed up the persona of the exotic, Paris-trained “Madame Restell” and began to advertise — but the business was Ann’s alone. For more than 40 years, despite vociferous opposition, several arrests and stints in jail, she pursued her calling, terminating unwanted pregnancies and helping place unwanted babies, and became a city fixture. When attacked in the press, Restell published her own sharp retorts — today, Wright suggests, she “would be fighting on Twitter constantly.” Every denunciation, every trial, served as an advertisement for her services.
READ ENTIRE ARTICLE AT THE NEW YORK TIMES
Legal Frameworks
Abortion in American History
How do ideological debates on gender roles influence the abortion debate?
Of all the issues roiling the ongoing culture wars, abortion is both the most intimate and the most common. Almost half of American women have terminated at least one pregnancy, and millions more Americans of both sexes have helped them, as partners, parents, health-care workers, counselors, friends. Collectively, it would seem, Americans have quite a bit of knowledge and experience of abortion. Yet the debate over legal abortion is curiously abstract: we might be discussing brain transplants. My files are crammed with articles assessing the question of when human life begins, the personhood of the fetus and its putative moral and legal status, and acceptable versus deplorable motives for terminating a pregnancy and the philosophical groundings of each one—not to mention the interests of the state, the medical profession, assorted religions, the taxpayer, the infertile, the fetal father, and even the fetal grandparent. Farfetched analogies abound: abortion is like the Holocaust, or slavery; denial of abortion is like forcing a person to spend nine months intravenously hooked up to a medically endangered stranger who happens to be a famous violinist. It sometimes seems that the further abortion is removed from the actual lives and circumstances of real girls and women, the more interesting it becomes to talk about. The famous-violinist scenario, the invention of the philosopher Judith Jarvis Thomson, has probably inspired as much commentary as any philosophical metaphor since Plato’s cave.
Abortion as philosophical puzzle and moral conundrum is all very well, but what about abortion as a real-life social practice? Since the abortion debate is, theoretically at least, aimed at shaping social policy, isn’t it important to look at abortion empirically and historically? Opponents often argue as if the widespread use of abortion were a modern innovation, the consequence of some aspect of contemporary life of which they disapprove (feminism, promiscuity, consumerism, Godlessness, permissiveness, individualism), and as if making it illegal would make it go away. What if none of this is true? In When Abortion Was a Crime, Leslie J. Reagan demonstrates that abortion has been a common procedure—“part of life”—in America since the eighteenth century, both during the slightly more than half of our history as a nation when it has been legal and during the slightly less than half when it was not. Important and original, vigorously written even down to the footnotes, When Abortion Was a Crime manages with apparent ease to combine serious scholarship (it won a President’s Book Award from the Social Science History Association) and broad appeal to the general reader.
READ ENTIRE ARTICLE AT THE ATLANTIC
The History of Outlawing Abortion in America
Abortion was first criminalized in the mid 1900s amidst concerns that too many white women were ending their pregnancies.
For years, it’s been getting harder for American women to access abortion services as clinics have closed and state laws have raised barriers to getting these procedures. In coming years, the Supreme Court may move closer to overturning Roe vs. Wade altogether.
The first time abortion was criminalized in the United States was in the mid-nineteenth century. Nicola Beisel and Tamara Kay write that a key factor in the anti-abortion arguments of that time was that too many native-born white women were ending their pregnancies, opening the door for the country to be overrun by fertile foreigners.
Beisel and Kay write that nineteenth-century doctors, who led the fight for anti-abortion laws, saw ending a pregnancy as anathema to women’s role in the world. Anti-abortion leader Hortio Storer wrote that woman was “what she is in health, in character, in her charms, alike of body, mind and soul because of her womb alone.”
READ ENTIRE ARTICLE AT JSTOR DAILY
What Feminists Did the Last Time Abortion Was Illegal
How abortion activists responded in the wake of the 1989 Webster decision and what we can learn from their efforts.
As the US Supreme Court heard arguments over the Texas and Mississippi laws that threatened to weaken Roe v. Wade substantially, my thoughts turned to the abortion rights activists I interviewed in California in the wake of the 1989 Webster decision. Webster v. Reproductive Services also involved a Mississippi statute, one that required viability testing after twenty weeks of pregnancy. While Webster marked the first significant legal victory by antiabortion forces, the two current abortion cases will make far more substantial progress toward making abortion illegal again. Dobbs v. Jackson Women’s Health Organization involves Mississippi’s ban on abortions after fifteen weeks of pregnancy in almost all cases. Texas passed an even more extreme law that forbids abortion after six weeks.
The women I interviewed, Lana Clarke Phelan and Carol Downer, wanted to save other women from going through the experience of illegal abortions that they had endured. In 1964, Phelan met Rowena Gurner and Patricia Maginnis, the founders of the Society for Humane Abortion (SHA), a California organization that advocated for the repeal of all abortion laws and provided education about abortion to both public and medical groups. Phelan, a gifted orator, became the SHA’s primary spokesperson. Phelan also mentored Downer, a women’s liberation activist interested in abortion and women’s health. After Roe, Phelan assumed the presidency of the National Abortion Rights Action League (NARAL), an association dedicated to maintaining legal abortion, and Downer co-founded the first woman-controlled abortion clinic in the United States in 1973.
The Guttmacher Institute estimates that if the Supreme Court upholds the Texas law, twenty-six US states would quickly move to outlaw abortion once again. The situation would revert to the immediate pre-Roe years. From 1967 to 1973, dedicated activists pushed politicians to repeal anti-abortion laws while also helping women access abortions. I spoke with Downer and Phelan in 1989 as an undergraduate desperate to learn how feminists my age might respond to Webster. In the ensuing years, Phelan and Downer’s activism has become part of a well-established history of the broader feminist movement for reproductive justice. We may need to rely on the lessons of the past if abortion becomes illegal again.
READ ENTIRE ARTICLE AT NURSING CLIO
They Called Her “the Che Guevara of Abortion Reformers”
A decade before Roe, Pat Maginnis’ radical activism—and righteous rage—changed the abortion debate forever.
There was nothing remarkable about the small woman carrying a box of leaflets—certainly nothing to justify the clutch of reporters waiting for her across from San Francisco’s Federal Building on a July morning in 1966. Still, there they were. She arrived at exactly 9 a.m., greeted them, and began distributing fliers to anyone who passed. There were two of them: One was a yellow slip of paper titled “Classes in Abortion,” listing topics like female anatomy, foreign abortion specialists, and police questioning. The other—which she gave only to the assembled journalists and the five women who signed up for her class that Wednesday evening—described two techniques for DIY abortions. “I am attempting to show women an alternative to knitting needles, coat hangers, and household cleaning agents,” she told the reporters, adding that she had notified San Francisco police of her whereabouts and plans.
The woman was Patricia Maginnis, a laboratory technician and founder of the Society for Humane Abortion, an organization that she ran out of the front room of her small apartment in San Francisco. She’d started the SHA in 1962 (back then, it was called the Citizens Committee for Humane Abortion Laws). Arguably the first organization of its kind in America, its mandate was radical: The SHA sought to repeal abortion laws, endorse elective abortions, and offer women any resources it could in the meantime. These resources would come to include “the List,” an up-to-date directory of safe abortion specialists outside the country, classes on DIY abortions, and symposia where sympathetic doctors could confer with each other about the safest and best abortion techniques. SHA would eventually formalize its legal strategy with a branch called the Association to Repeal Abortion Laws (ARAL, which would form the basis for NARAL), specifically devoted to challenging legislation.
But on this particular day, and on this particular mission, Maginnis claimed she was acting alone, outside of her organization. The leaflets were her way of knowingly violating both a city ordinance and Section 601 of the California Business and Professions Code, which declared it unlawful to distribute information about abortion. She was also flouting Penal Code 276, which made it a crime to “solicit[] any woman to submit to any operation, or to the use of any means whatever, to procure a miscarriage.” The violation was the point: Maginnis had politely informed the police of her every move in advance. The aim was to goad the legal apparatus into an ugly confrontation that it preferred to keep as merely a threat; she wanted to make the system own the consequences of its laws. “I could get arrested for soliciting women to undergo a felony,” Maginnis told the alt-weekly Berkeley Barb, “but I feel it is necessary at this point to have a test case.” To get a law thrown out, you first need to go to court. And to get to court, you must be arrested.
Why Clarence Thomas Is Trying to Bring Eugenics into the Abortion Debate
They really do not have anything to do with each other.
When Justice Clarence Thomas wrote a 20-page concurrence to the Indiana abortion law case in early June, Adam Cohen’s phone started blowing up. In making an argument linking abortion rights to eugenics, Thomas repeatedly cited Cohen’s book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck—incorrectly. Cohen joined Dahlia Lithwick to explain what Thomas might be doing in trying to tie abortion access to eugenics.
A transcript of their discussion, which has been condensed and edited for clarity, is below.
Dahlia Lithwick: In Box v. Planned Parenthood, Clarence Thomas, in a 20-page concurring opinion, pretty much rocked the culture wars with a discussion comparing essentially abortion to eugenics. It was a pretty stunning new turn in the abortion debate. In his concurrence, Justice Thomas cited a book written by Adam Cohen. The book is Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. It was an extraordinary tale of a very dark time in American history, a time when this country allowed for the sterilization of people deemed to be inferior. Adam Cohen was actually pretty surprised to see his book cited by Thomas, and he wrote about that in a piece in the Atlantic last week.
Can you start [with Carrie Buck] and we’ll work our way to Clarence Thomas?
Adam Cohen: Sure. This woman, Carrie Buck, young woman, she had been taken in sort of as a foster child of a family, working a little bit as a maid. She had been taken from her poor single mother, and she was raped by a nephew of the family, and then there’s a question of what to do. She’s a pregnant woman that there’s really no place for.
Back in those days, one option was to declare her feeble-minded, which is what they did, and to send her off to a colony for epileptics and feeble-minded in Virginia, which is what they did. Sounds very strange, but there actually were these colonies around the country and there were laws in Virginia but also in the majority of states saying that if you were held to be feeble-minded or had other qualities that they said were unfit, you could actually be eugenically sterilized.
The 1960s Provide a Path for Securing Legal Abortion in 2022
How activists can secure legal abortion with a diverse all-of-the-above movement.
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization revokes the constitutional right to an abortion and thrusts the issue back to state legislatures, which controlled abortion policy for over a century before the court nationalized abortion rights in Roe v. Wade in 1973. What comes next may be shaped by our understanding of that history.
Despite periodic campaigns, draconian abortion laws seemed nearly immune to change from the 19th century to the 1960s. But in the second half of that decade, activists succeeded at decriminalizing abortion or loosening restrictions in 17 states and Washington, D.C. This history shows how effective a diverse political coalition can be when it throws everything it has at a problem — from disruptive civil disobedience, to demonstrations of commitment by people of faith, to tireless lobbying. Most importantly, these past victories teach that grass-roots organizing and political mobilization work.
As activism to change abortion laws gained steam, the movement began winning what had earlier seemed like impossible victories. In 1965, a state legislator named Percy Sutton introduced the first bill in New York’s modern history to liberalize the state’s 1828 abortion law. Judged by later standards, its provisions were moderate — it would have expanded the grounds on which a physician could grant an abortion. The bill reflected the position of the elite American Law Institute and a few doctors. Even so, the legislature never seriously considered it.
Just five years later, however, on July 1, 1970, New York began to implement a far more ambitious piece of legislation — the most liberal abortion reform law in the United States and, according to the then head of the Planned Parenthood Federation of America, the most liberal in the world.
What drove this seismic change? In a word: activism.
Some of the organizing and mobilizing was deeply anti-establishment. It came from the socialist wing of the feminist movement and from radicals who cut their teeth on in-the-streets battles for Black civil rights and against the war in Vietnam. In February 1969, these feminists protested inside and outside of legislative hearings on abortion. They were dissatisfied with another bill that would merely have liberalized the abortion laws (introduced by White Democrat Al Blumenthal). They demanded that legislators support a far more ambitious proposed law, one that would have removed abortion entirely from the state legal code.
Activists, primarily from two New York City-based groups, Redstockings and New York Radical Women, shouted down an “expert” witness at the hearing, which featured 15 invited speakers, 14 men and one woman — a celibate nun. “O.K., folks,” one protester said. “Now it’s time to hear from the real experts … from the people who really know — women.” She explained the “psychological and sociological effect” of the law on her: “it’s made me angry! It’s made me think about things like forcing doctors to operate at gunpoint.” One state senator upbraided the demonstrators, “What have you accomplished? There are people here who want to do something for you!” Redstockings founder Ellen Willis recorded one protester’s response, in an unsigned piece she published in the New Yorker: “We’re tired of being done for! We want to do, for a change!”
READ ENTIRE ARTICLE AT THE WASHINGTON POST
“Our Moral Obligation:” The Pastors That Counseled in Pre-Roe South Carolina
Before the Roe decision, at least 68 South Carolina clergymen actively counseled women on where they should receive abortions.
On December 8, 1971, a Presbyterian pastor in Greenville, SC counseled three women on their “problem pregnancies,” ultimately connecting them with clinical abortion providers. The first woman was a white, 21-year-old university student. Her relationship with her boyfriend had ended that October, and she believed abortion was, to use her words, a “last ditch contraception.” The pastor referred her to Women’s Services in New York, which was one of the clinics that opened when the NY state legislature legalized abortion in 1970. In cases like this, South Carolina pastors scheduled appointments, arranged transportation, and even secured funding for women to travel to New York for regulated, legal procedures. When inter-state travel was not an option, pastors would connect women with licensed medical doctors within South Carolina for clandestine abortions.
The second patron was a 23-year-old divorced white woman who already had a three-year-old son. She was trying to reconcile her marriage and wanted to have more children, but was having intercourse with another man and feared the repercussions of either partner learning of her pregnancy. The pastor arranged transportation and scheduled an appointment for her in New York.
The third woman the pastor saw that day was an 11-year-old African American girl whose father believed she was “coerced” into intercourse by an 18-year-old boy. The pastor determined that the girl and her family were “too hysterical for New York,” and scheduled an abortion with someone named “Dickson” at the local Greenville General Hospital.
READ ENTIRE ARTICLE AT NURSING CLIO
Clarence Thomas Used My Book to Argue against Abortion
The justice used my book to tie abortion to eugenics. But his rendition of the history is incorrect.
In Tuesday’s ruling on Indiana’s abortion law, Justice Clarence Thomas took the national debate over the right to choose to a dark new place: eugenics. His 20-page concurring opinion included an extensive discussion of the eugenics movement of the early 20th century. Thomas argued that as the justices consider abortion going forward, they should pay more attention to its potential to become a “tool of eugenic manipulation.”
In making his argument, Thomas cited my book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck repeatedly. (He also cited an article I wrote about Harvard’s ties to eugenics). I don’t want to appear ungrateful: It’s an honor to be relied on by the highest court in the land, and these days, nonfiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion.
Thomas’s opinion came as an addendum to a decision that sidestepped the most difficult issues raised by the Indiana law. Although the Court upheld Indiana’s requirement that abortion providers bury or cremate fetal remains, it refused to reinstate another part of the law that banned abortions solely because of the sex or disability of the fetus. The New York Times reported that the decision was “an apparent compromise.” It says a lot about where abortion law is today that upholding a law requiring a woman to allow her aborted fetus to be given the funerary rites of a dead child—and possibly to pay a hefty bill for it—now counts as a “compromise.”
READ ENTIRE ARTICLE AT THE ATLANTIC
The Surprising Role of Clergy in the Abortion Fight Before Roe v. Wade
In the half-decade before Roe v. Wade, respected religious leaders participated in a nationwide struggle to make abortion more accessible.
“Today I want to speak to The Challenge of the Sexual Revolution, or to The Use of the Body in Regard to Abortion,” declared the Reverend Charles Landreth on, June 6, 1971. From the pulpit of First Presbyterian Church in Tallahassee, Fla., Landreth invited those present to imagine different situations that led to a “problem pregnancy.” Landreth prodded his congregants, asking them to consider what an unwanted pregnancy and lack of access to abortion could mean to an older married woman, a young woman who had been raped or a high-school girl “scared literally to death to tell her staunch Catholic parents and therefore very tempted to run to a quack.”
That Sunday, at Tallahassee’s oldest church, Landreth argued that Jesus’ declaration that the first stone should be cast by those “among you without sin” was a “radical challenge to the Scribes and the Pharisees and to their conception of morality and authority.” Invoking these scriptural passages, Landreth protested against the immorality of Florida’s laws, which prohibited abortion unless the pregnancy endangered a woman’s life.
Toward the end of his sermon, Reverend Landreth revealed to his congregation what they may have already learned from Florida newspapers in the preceding weeks: he and his colleague Leo Sandon had been helping women in Tallahassee obtain abortions.
Tennessee Republicans Turn to Mail Regulation to Restrict Abortion
This isn’t the first time the U.S. Postal Service has played a role in curbing women’s reproductive rights.
This is not the first time U.S. mail has been used to obtain materials necessary for reproductive autonomy — or the first time doing so has been outlawed. In 1873, Congress passed the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, dubbed the Comstock Act. It banned mailing “indecent” materials, including information about contraception and abortion, as well as devices used for those purposes.
Then, the mail was many people’s main conduit for information they could not obtain easily, much like the Internet today. The Comstock Act restricted conversations about reproductive autonomy, resulting in the arrests and convictions of physicians who violated the law — not unlike what laws in Tennessee and elsewhere threaten.
The law’s namesake, Anthony Comstock (1844-1915), was a Union Army veteran who founded the New York Society for the Suppression of Vice (NYSSV). A crusader against anything he considered “immoral,” he campaigned not only against birth control and abortion, but against female independence itself. He took on Woodhull & Claflin’s Weekly, a feminist newspaper published by Victoria Woodhull, who ran for president in 1872, and her sister, Tennessee Claflin, because it promoted woman’s suffrage and “free love” — a term for sex outside of marriage. Designated a special agent for the U.S. Post Office Department, Comstock personally arrested Ezra Heywood, who argued in 1878 in a pamphlet called “Cupid’s Yokes” that women should be able to control their own bodies. He also arrested a man who was convicted of obtaining a copy of “Cupid’s Yokes” through the mail.
“Comstockery” was ridiculed. In 1878, 50,000 people signed a petition to have the law overturned, arguing that it was used to “destroy the liberty of conscience in matters of religion, against the freedom of the press and to the great hurt of the learned professions.” Congress, however, refused. A House committee emphasized that the postal system had not been established to mail obscene materials.
In addition to the federal act, 24 states passed copycat laws. Comstock’s home state, Connecticut, banned contraceptives altogether.
That did not, of course, stop women from seeking birth control and abortions, nor did it stop sources who would supply information and material underground, whether safe or not. Euphemisms and innuendo were used to circumvent the laws. For example, herbal concoctions used to induce abortions were dubbed “female regulators.” Notably, in 1907, NYSSV reported finding ads in New York papers for “pills that could be used for criminal purposes” — that is, abortion. Hidden in small red boxes within larger boxes, the pills were“broadcast over the country to tempt young girls and women from paths of virtue, and as a menace to motherhood.”
READ ENTIRE ARTICLE AT THE WASHINGTON POST
The 113-Year-Old Law Behind Anti-Abortion Activists’ Latest Scheme
The Christian right is pushing a slate of laws to stop a new, vague offense they have dubbed “abortion trafficking.”
Could driving someone to get an abortion soon be an act punishable by law? It’s not out of the question, if a newly emboldened group of extremists get their way.
A wave of new anti-abortion ordinances have already been adopted in several Texas counties and are under consideration in many others across the state, according to a Washington Post story published last week. These laws are premised on stopping a new, vague offense that anti-abortion activists have dubbed “abortion trafficking.” The language evokes an unwilling participant—someone being forced by someone else to terminate a pregnancy—but is intended instead to bar people who do want an abortion from accessing care. The idea is fairly new—and entirely the invention of anti-abortion activists and legislators.
These so-called “abortion trafficking” ordinances aim to punish travel, an approach that might first appear unusual or even archaic when it comes to abortion regulations. Some have likened the thinking behind these ordinances, along with the vigilante-style anti-abortion laws like Texas’s Senate Bill 8 that preceded them and whose enforcement model they borrow, to the Fugitive Slave Act of 1850. What distinguished S.B. 8, the Texas six-week abortion ban, was that it came with thousands of dollars in bounties to encourage people to report alleged violators. The “abortion trafficking” bans function similarly: They incentivize people, with cash rewards, to threaten legal action against anyone who travels through their community, either to have or to help someone else have an abortion.
“This really is building a wall to stop abortion trafficking,” Mark Lee Dickson, director of Right to Life of East Texas and leading promoter of the anti-abortion ordinances, told the Post. Dickson, described by Texas Monthly as a “bearded East Texas pastor who favors a backward baseball cap and carries around a plastic toy fetus,” calls himself a “virgin” who attended the January 6 riot at the Capitol—though he claims he did not enter—in support of President Trump. Dickson’s statement about “building a wall” seems intentionally crafted to evoke anti-immigrant panic; Dickson, unsurprisingly, was also one of the leading voices behind S.B. 8.
These new “abortion trafficking” ordinances have gotten a lot of attention in various national outlets over the past month. But less notice was given to how Dickson pointed to a different old law to justify this new wave of bills: the Mann Act, officially the “White Slave Traffic Act of 1910,” a law once used fairly indiscriminately to prosecute nonmarital sex.
READ ENTIRE ARTICLE AT THE NEW REPUBLIC
Revisiting New York’s Historic Abortion Law in “Deciding Vote”
Jeremy Workman and Robert Lyons’s film reconstructs the passage of a 1970 law that made the state a sanctuary for people seeking abortions.
An earlier version of the bill, co-sponsored by a Democrat and a Republican, had already been defeated, and pressure from constituents and religious groups who opposed the measure was intensifying as the second vote neared. Several Assembly members who had supported the bill told the New York Times that they had been denounced in sermons at their churches as murderers. When the bill returned to the legislature a week later, the proceedings were televised, and it was debated for four hours. Three members reconsidered their affirmative votes, leaving the bill likely to fail by a margin of one. The outcome seemed so inevitable that observers had already started filing out of the chamber when George Michaels, a member from Auburn, a city of roughly thirty-five thousand people in the Finger Lakes, asked to speak. Michaels was a Jewish Democrat from a largely Catholic and Republican district, and he had originally voted against the bill, in keeping with the views of most of his constituents. When the bill had seemed certain to lose, Michaels was content to vote against it—but he didn’t want to be single-handedly responsible for its defeat. Michaels reversed his vote, knowing that his decision would cut his political career short and endanger his law practice. The consequences came quickly. Nine days later, the Democratic Party in his county declined to endorse him for reëlection.
Jeremy Workman and Robert Lyons learned about Michaels in 2019, and, Workman told me, found his actions both “simple and startling.” They decided to make a documentary about him when they realized how little was remembered about his role in the events leading up to Roe. Lyons told me that, when they watched his speech on the Assembly floor, they wanted to “roll it back to figure out how this man got to this moment.” They initially expected that they would draw only on archival footage, but, when they began speaking with Michaels’s family members and discovered how influential they had been in forming his views on the legalization of abortion, the scope of the film, “Deciding Vote,” grew. Workman and Lyons spent the following three years conducting interviews with Michaels’s relatives, former colleagues, and a volunteer archivist who has maintained a file on him in the attic of a local museum.
READ ENTIRE ARTICLE AT THE NEW YORKER
How Women Were Made to Suffer for Their Abortions Before Roe v. Wade
Interrogated, examined, blackmailed: how law enforcement treated abortion-seeking women before Roe.
Twelve police officers with walkie-talkies and binoculars hid in the nearby fields and in the farmhouse next door, waiting and watching. It was dark. After seeing a car drive up carrying two women, who then went inside the house, the officers unlocked the front door and went in. They walked down the halls and into the bedrooms, where they found one woman wearing only a slip in one room, two lying in bed in another, and two more who, having removed their skirts and underwear, sat waiting for their abortions in a third. The police questioned, photographed, and fingerprinted each woman. Then they drove them in police cars to a doctor, to be vaginally examined while in police custody.
This is the beginning of a true story of a raid on an underground abortion clinic by Pennsylvania state troopers in the late 1950s. It began when a suspicious neighbor called the police after listening on her party-line phone and overhearing her neighbor’s conversation about a pregnancy. The raid was easy: Since the landlord had given the police a key, they walked in and surprised everybody there. The police didn’t act in response to reports of injury or deaths. Abortion was simply illegal, and police raids based on reports from suspicious neighbors or doctors were standard methods of enforcing the law.
Standard, too, was the approach of capturing women in the midst of an abortion procedure and gynecologically examining them for evidence. Women who sought abortions were not targeted for prosecution (although some states allowed it). Prosecutors who tried to go after women who sought abortions in the 19th century had quickly learned that juries refused to convict and shifted to pursuing abortion providers when women died. By the 1940s and 1950s, though, police were shutting down providers even if they were safe. The law treated aborting women as “victims” and used them for evidence. Being captured, examined, interrogated, occasionally jailed, and forced to testify in court, however, punished women for seeking abortions even if they were never prosecuted or convicted of a crime.
The Texas abortion ban that took effect last week is designed to encourage private citizens to spy and report on suspicious people and activities, in the same way that the Pennsylvania woman reported her neighbor in 1958. In fact, the Texas statute permits only nonstate actors to bring civil lawsuits against individuals or organizations they suspect have “aided” or “abetted” any abortion that occurs after six weeks. This unusual law excludes state officials and police from enforcement—typically their job, of course—in order to make challenging its constitutionality difficult. And the Texas statute, like those in some states before Roe, doesn’t allow women themselves to be sued for getting abortions. This tactic allows anti-abortion activists to claim they are “on women’s side,” and don’t intend to harass them, but rather to target what they call the “abortion industry.”
The Grassroots of ‘Roe’
My mother’s part in the 1970 repeal of New York’s abortion law is a lesson for today’s activists: all politics is local.
A few days before Thanksgiving in 1968 my mother, Beatrice Kornbluh, a labor lawyer and member of the National Organization for Women (NOW), took time away from her job and three daughters to address her newly elected representative to the New York State Assembly, Franz Leichter. “Dear Franz,” she wrote, “Enclosed is an abortion repeal law.” Assemblywoman Constance Cook, among the many Republicans who once favored reproductive rights, pre-filed a bill before the start of the next legislative session based on my mother’s draft. It was the first legislative proposal in US history that promised unrestricted access to abortion, with no limits based on the number of weeks a pregnancy had progressed and no doctors deciding who needed or deserved the procedure. As of today only four states, plus the District of Columbia, have made abortion as accessible as my mother wanted it to be when my twin sister and I were toddlers.
Leichter had the backing of the Jews and non-Jewish liberals he represented in Manhattan’s Upper West Side, who during World War II had learned to reject public policies that distinguished between good and bad bodies, acceptable and unacceptable reproductive choices. Born in Vienna, Leichter had been a refugee from Nazism whose own feminist mother, the sociologist Kathë Leichter, was killed at one of the notorious “T4” centers established for the so-called euthanasia of disabled people. He joined a national effort to make the Democratic Party more encompassing of civil rights, including of women’s civil rights—an effort that, under Eleanor Roosevelt’s leadership, was strongest in New York State. From the moment he entered the legislature, Leichter was the foremost Democratic advocate of my mother’s bill and of the liberal approach to abortion rights it represented.
My mother never dreamed of shaping policy beyond her state. She had produced the draft legislation for a committee of her local NOW chapter—she was the only member with a law degree—that hoped to use state law to solve a problem state law had created. New York’s legislature passed its first abortion statute in 1828, creating a crime out of what had until then been a practice loosely regulated under common law. By my mother’s time, the terrible effects of this nineteenth-century innovation were clear. According to a 1965 report by the New York City Department of Health, maternal mortality in the city rose—from 60 deaths out of every 100,000 live births in 1954 to 73 in 1962—even as medical technology advanced and childbirth became safer overall. One quarter of deaths of pregnant white women, and half of deaths of pregnant Black and Puerto Rican women, were due to poorly performed abortions. Despite these damning numbers, reforming the abortion law in New York was a heavy lift. Even to discuss abortion was considered transgressive.
READ ENTIRE ARTICLE AT THE NEW YORK REVIEW
I Argued Roe v. Wade. It Would Be a Tragedy to Overturn It.
To take away the right to privacy is to take a giant step backward in American history.
In January, Roe v. Wade will celebrate its fiftieth anniversary. In the meantime, as the United States Supreme Court deliberates over whether to support or disarm the 1973 ruling, the nation watches and waits. I am the former attorney for Norma McCorvey, the plaintiff in the case, better known as Jane Roe, and I have profound concerns—not for history, for the future. My co-counsel Sarah Weddington and I forged for American women the right to privacy, not just in abortion law, but in all parts of one’s personal life. A better sense of what is at stake today can perhaps be gleaned from the legal journey we took to establish that right.
I graduated from the University of Texas School of Law in May 1968, but I began researching and writing a challenge to Texas’s abortion laws a full year before. Following graduation, I spent many nights of intense study in the Southern Methodist University law school library, where I initially focused on what did not work in previous challenges to various abortion restrictions around the country. Those challenges had all failed. A good lawyer does not use failed arguments to win a good case.
The most pertinent case I reviewed was 1969’s People v. Belous, in which Dr. Leon P. Belous, a well-respected physician and a supporter of abortion rights, was arrested for actions related to his 35-year history of performing abortions in California. Belous’s attorneys appealed the district court’s support of anti-abortion laws to the state Supreme Court, citing an earlier case, 1964’s Griswold v. Connecticut, which protected a woman’s privacy and argued that personal autonomy in childbearing was hers alone to exercise. On September 5, 1969, to the shock of many people across the country, the California Supreme Court overturned the Belous guilty verdict by a vote of 4–3, asserting that women have privacy, a right to follow their own convictions about reproduction, and liberty in matters related to marriage, family, and sex.
To enable women to make their own decisions concerning their own bodies, and to overturn Texas’s overreaching laws and their burdensome and unnecessary control, my plans had to be precise. This issue of “privacy” struck me as offering the best grounds on which to successfully challenge Texas abortion laws. Many people do not know that neither the U.S. Constitution nor any of the amendments actually protects citizens with a “right to privacy,” verbatim. But any case I made, I knew, would need to center on it.
I first met Norma McCorvey in my law office at Palmer and Palmer Law in late November 1969, after my lifelong friend and fellow attorney, Henry McCluskey, called to say he had an adoption client who preferred an abortion. He knew I had been researching and writing to develop a challenge to Texas’s abortion laws. He also knew that, to have standing, we would need a woman pregnant and not wanting to be. I told Norma about my class-action plan to challenge Texas law, and Henry encouraged her by telling her I had been working for some time to help women in her situation. I explained that representing her, as part of a class of Texas women, would cost her nothing, as I would be working as a pro bono attorney. I explained she would be helping women like herself who were pregnant, but who didn’t want to carry their pregnancy to full term.
READ ENTIRE ARTICLE AT THE NEW REPUBLIC
How My Father, Ronald Reagan, Grappled With Abortion
Even as his beliefs on abortion shaped global policy, he was never entirely at peace with the issue.
Like every offspring of a famous political figure, I frequently round a corner and slam straight into some aspect of my father’s legacy. I’ve not checked with other political offspring, but I’m guessing we all shuffle through the same questions: Do I speak out, try to offer a wider or more personal perspective? Or do I keep quiet, let the news cycle move on without me and shy away from questions?
Such has been my dilemma since the leak of the Supreme Court draft opinion heralding the end of Roe v. Wade. I first opted for silence, but I’m haunted by memories that I think offer insight into how my father came into his beliefs on abortion — beliefs that had global policy implications and that also stemmed from some complicated, human emotions. Beliefs that were more personal than political.
In 1967, as governor of California, my father signed a bill making abortion legal for victims of rape and incest, and in cases where a woman’s mental or physical health was in danger. That law was among the first in the country to decriminalize abortion. He was acutely aware that women who were victims of rape or incest and became pregnant would be re-victimized by being forced to have their attacker’s baby. But his religious faith left him questioning when life begins.
I was 14 when he signed the law; I didn’t give much thought to it at the time. About a year later, I met a girl who had been raped by her uncle and got pregnant. She had an abortion in California, and she said the bill my father signed made that possible. She asked me to thank him, but I never did. I never told him about her, or about how proud I was of him right then because I dreaded being asked questions about who my friends were, who I was hanging out with. To this day, I wish I had passed along her gratitude, and my pride.
READ ENTIRE ARTICLE AT THE NEW YORK TIMES
The 150-Year-Old Comstock Act Could Transform the Abortion Debate
Once considered a relic of moral panics past, the 1873 law criminalized sending “obscene, lewd or lascivious” materials through the mail.
“Our youth are in danger.”
So read the urgent warning written by anti-vice activist Anthony Comstock in his 1883 book, Traps for the Young.
He cautioned, “Mentally and morally, they are cursed by a literature that is a disgrace to the 19th century. The spirit of evil environs them.”
Each section of the text examined a new category of vice that could ensnare an unsuspecting child in evil’s clutches. Chapter titles included “Free-Love Traps,” “Artistic and Classical Traps,” “Gambling Traps” and “Advertisement Traps.”
In chapter eight, “Death-Traps by Mail,” Comstock wrote of evil that is “thrust upon the youth in secret” via the postal service. Through the mail, he added, “the most infamous scoundrel may send the vilest matter to the purest boy or girl. And this is being done systematically.”
While Traps for the Young is little known today, the book is steeped in the same fears that cemented Comstock’s more lasting legacy ten years prior: In 1873, he successfully lobbied for the so-called Comstock Act, which criminalized sending “obscene, lewd or lascivious” materials through the mail.
READ ENTIRE ARTICLE AT SMITHSONIAN MAGAZINE
Sanctuaries Protecting Gun Rights and the Unborn Challenge the Legitimacy of Federal Law
Who gets to decide what the Constitution really means?
In June 2019, the small Texas town of Waskom declared itself a “Sanctuary City for the Unborn.”
Waskom’s city council passed an ordinance that labels groups – like Planned Parenthood, NARAL and others – that perform abortions or assist women in obtaining them “criminal organizations.”
The ordinance borrows from a similar resolution passed in March by Roswell, New Mexico. Unlike the merely rhetorical Roswell resolution, however, the Texas law bans most abortions within city limits. There are no abortion providers in the town, so it is not clear how the town would enforce the ordinance. It might, perhaps, deter an organization from opening a clinic.
These “sanctuaries for life” join other sanctuaries popping up across the country that challenge federal law and how we understand its power and role in the states and the lives of Americans.
READ ENTIRE ARTICLE AT THE CONVERSATION
Mississippi: A Historian Challenges H.L. Mencken
Mississippi may be the nation’s most religious state, but it is also far more complex and dynamic than many commentators admit.
In 2011, the Colorado-based Personhood USA ministry made Mississippi the latest staging ground in its campaign to amend a state constitution to define “personhood” to “include every human being from the moment of fertilization.” Personhood USA chose Mississippi for a specific reason. America’s most religious state (at least according a recent Pew poll) is home to the ultra-conservative American Family Association and the anti-abortion Baptist State Convention. Personhood USA believed that Mississippi’s conservative Christians would mobilize to help pass the measure, known locally as Ballot Initiative 26, by wide margins.
And mobilize they did. A coalition of imported and homegrown activists flooded Mississippi’s airwaves with pro-personhood ads and blanketed the state with yard signs urging Mississippians to “Vote Yes on 26!” Journalists from around the country flocked to the Magnolia State, which once again made national headlines for its hard-line social conservatism. Despite polls showing an electorate split evenly between supporters and opponents of the measure, America’s newspapers of record, including The New York Times and The Washington Post deemed the outcome foreordained.
But the polls and the pundits were wrong. The amendment failed spectacularly, by a margin of 58 to 42 percent. Seemingly as quickly as they arrived, the national media decamped from Mississippi. Mississippi’s imminent passage of the Personhood amendment was big news. The initiative’s defeat was not.
Why didn’t pundits, politicians, and activists stop to ask how they had been so wrong about the voters in Mississippi? The answer is that when Mississippi doesn’t hew to simple narratives, Americans no longer know how to talk about it. In the national imagination, Mississippi is the state of extremes: the poorest state, the fattest state, and the most conservative state. But especially when it comes to Mississippi’s place as America’s most religious state, there is rarely room, it seems, for a more complex narrative. The Personhood amendment’s unexpected failure demonstrates that there are complicated social and political realities in Mississippi, realities that are not captured in political prediction models that assume that exceptionally high rates of church attendance and professions of faith redound to knee-jerk social conservatism in the voting booth.
READ ENTIRE ARTICLE AT RELIGION & POLITICS
Mobilizing against Abortion
“Female Monthly Pills” and the Coded Language of Abortion Before Roe
Our future might look much like our past, with pills as a major part of abortion access—and an obsessive target for abortion opponents.
Medication abortion is incredibly common in the United States; it’s also incredibly safe. And it’s because of this relative ease and safety, in fact, that conservative states are now targeting it in the same ways they have targeted providers and clinics in recent decades: In 18 states, a provider must be physically present to prescribe abortion medication, a barrier compounded by the fact that nearly 40 percent of women in the U.S. aged 15–44 live in a county without an abortion clinic. A number of states also have laws on the books that criminalize people who terminate their own pregnancies, and “there have been at least half a dozen U.S. cases where women have been arrested and charged after attempting to self-induce an abortion using illicitly obtained abortifacients,” according to the Guttmacher Institute.
It is now 47 years after Roe v. Wade, and we are still someplace we’ve already been. But that sense of familiarity goes back even further than the landmark abortion case: 200 years ago, as medicines and tonics meant to cause abortion were made more accessible through advertising, laws targeted their use as well.
Abortion has gone from being legal to illegal in this country before, and with Roe in jeopardy, advocates for reproductive freedom have forecast a future that looks much like our past, when pills were a major part of abortion access—and an obsessive target for abortion opponents.
READ ENTIRE ARTICLE AT THE NEW REPUBLIC
Why the Courts Had to Force the Trump Administration to Let a 17-Year-Old Have an Abortion
A 1974 case gave the antiabortion movement a new playbook to whittle away abortion rights for poor women.
On Wednesday, after weeks of legal battle, Jane Doe, a 17-year-old undocumented immigrant living in a government shelter in Texas, finally underwent an abortion. She was only able to obtain the procedure after the D.C. Circuit Court of Appeals required that the government release her, ending a topsy-turvy week of back-and-forth court decisions.
According to court filings, the federal government forced Jane to get counseling from a religiously affiliated crisis pregnancy center. The center compelled her to look at a sonogram in an attempt to convince her that the fetus is a child and that her abortion would be murder. Unable to leave the shelter, Jane declared, “I feel like they are trying to coerce me to carry my pregnancy to term.” “I do not want to be forced to carry a pregnancy to term against my will.” Because Texas prohibits most abortions after 20 weeks, at 15 weeks pregnant, Jane nearly ran out of time.
The strategies antiabortion federal officials and activists in Texas employed date back nearly 45 years, to the weeks after abortion became legal. After Roe v. Wade (1973), some antiabortion activists launched a still unfulfilled quest to overturn the Supreme Court’s decision through a constitutional amendment. Others however, have found greater success by seeking to limit women’s access to abortion through state and local laws, thus eroding the national implementation of Roe.
In Boston, of all places, they learned that humanizing fetuses through fetal imagery and carefully selected language provided a powerful boost to their cause in the political arena. This antiabortion activism, in a place long considered the bastion of liberalism, ultimately created a template for how to incrementally limit abortion rights, leaving women’s rights activists scrambling to fight in the streets and in the courts over the next 40 years as Roe’s promises were hollowed out.
On Sept. 21, 1973, Alice Roe, the daughter of West Indian immigrants, went to Boston City Hospital seeking an abortion. The doctor who initially examined her noted that she was 21 to 22 weeks along and assigned her case to Dr. Kenneth Edelin, the hospital’s first African American chief resident and one of only two doctors there willing to perform abortions. After carrying out Alice’s wishes, Dr. Edelin recorded no heartbeat or sign of life in the fetus and, per protocol, sent it to the hospital’s pathology lab, where it was preserved in a bottle of formaldehyde.
Soon after, a Boston-based antiabortion activist received word from a hospital employee that there were “two big babies in bottles” at the hospital’s morgue. He persuaded the local district attorney to investigate Edelin and the hospital. The DA ordered an autopsy to see if the larger of the preserved fetuses — Alice Roe’s — had been alive when it was aborted.
The medical examiner concluded that the fetus had breathed after being removed from the uterus, leading the DA’s office to decide to prosecute Edelin for manslaughter.
When a grand jury indicted Edelin, it had an immediate and chilling effect. Boston City Hospital temporarily stopped providing abortions.
Edelin’s trial hinged on two questions: Did he abort a fetus, or murder a child? And was Edelin’s responsibility to his patient, or to her fetus? The prosecution sought to convince the jury that “baby boy Roe” had been removed from Roe’s uterus alive and died because Edelin failed to provide it with life-saving care.
In addition to the powerful testimony of antiabortion activists who repeatedly described the fetus as a baby, the prosecutor relied on a photograph to persuade jurors. He encouraged the jurors to ponder whether it was a picture of a fetus or a baby boy, thundering:
“[Edelin] tells you that he took out the fetus — the subject. Is this just a specimen! You tell us what it is. Look at the picture. Show it to anybody. What would they tell you it was? Use your common sense when you go to your jury deliberation room and humanize that.”
After a day of deliberations, the jury found Edelin guilty of manslaughter. The doctor only escaped jail time after abortion rights activists rallied to his cause and funded an appeal. In 1976, the State Supreme Court reversed his conviction, implying that Edelin should never have been indicted.
But even so, antiabortion activists saw this case as the thin edge of a wedge for limiting Roe v. Wade. Following Edelin’s trial, hospitals in a number of cities feared they would become susceptible to similar litigation.
Some preemptively placed tighter limits on the time frame during which an abortion could be performed. Others began requiring that expensive life-saving equipment be on hand during second-trimester abortions. These measures made abortion more costly and less accessible to poor women.
As historian Sara Dubow has shown, antiabortion activists took note of these self-imposed hospital restrictions and their effects. In the wake of the Edelin trial, as they confronted continued strong political support for Roe, they began to see limiting the availability of abortion as the most promising path forward.
It was not long before these activists realized that abortion access for low-income women was most susceptible to restrictive regulations. They undertook a campaign to choke off this access and achieved a major success with the passage of the Hyde Amendment in 1976, which prohibited the use of federal funding to pay for abortions.
In 1980, the Supreme Court upheld the Hyde Amendment’s constitutionality, reasoning that because Roe did not define abortion as a positive right, the government was not obligated to finance the procedure. Similar legislation enacted on the state level over the next three decades eliminated other avenues for accessing reproductive services and funds to underwrite abortion costs. Mandatory waiting periods, mandatory misleading counseling, the prohibition of certain procedures and ambulatory clinic requirements all coincided with the depletion of resources.
Those women for whom public funds were essential to give meaning to Roe soon found themselves stranded with a right in name only. At the same time, women with the means to access abortion were subject to coercive messages and invasive procedures.
Even in the wake of Whole Women’s Health v. Hellerstedt (2016), which repudiated regulations that “do little or nothing for health, but rather strew impediments to abortion,” antiabortion government officials continue to target the most susceptible segments of the population. Their goal is nothing less than preventing women from exercising their right to access medical resources.
As with the Edelin case 44 years ago, only intervention by the judiciary and grass-roots abortion rights activists has preserved a woman’s constitutional right to terminate her pregnancy.
Edelin’s trial laid the groundwork for many of the fights to come. It cemented the way antiabortion activists talked about and represented abortion to a general public. Their vocabulary — of babies rather than fetuses, and of murders rather than abortions — shaped the public’s image of what an abortion entailed and what was at stake. These activists recognized that visual images were key to humanizing the unborn and convincing people that fetuses were children. This powerful fetal imagery remains important for what it shows — human-looking fetuses — and for what it does not show: young women like Alice Roe and Jane Doe who make difficult and thoughtful choices about whether to terminate or continue a pregnancy.
READ ENTIRE ARTICLE AT THE WASHINGTON POST
The Murderer Who Started a Movement
David Gunn’s murder was the first targeted killing of an abortion doctor in America. His killer now has an opportunity for parole.
Dr. David Gunn was 47 years old when he was gunned down in 1993 during an abortion protest outside his clinic in Pensacola, Florida. Today we think of this as the first targeted killing of an abortion doctor in America—the murder that led to passage of the FACE Act, which made it a federal crime to block access to clinics. It also established the battle lines in an ever more violent and nihilistic war against abortion providers, one that has led to the murders of nearly a dozen more people in the decades since.
Michael Frederick Griffin reportedly shouted “Don’t kill any more babies” just before putting three bullets in Gunn’s back. While the doctor bled to death, Griffin calmly surrendered to the police, saying, “I just shot someone.” Those attending the protest with Griffin showed no alarm at the shooting, a witness told the Washington Post’s William Booth: “It looked like they were just happy.”
At Griffin’s murder trial, his defense counsel would blame his actions on a pro-life leader named John Burt. A former KKK member, Burt was eventually convicted of molesting and sexually abusing teens at a shelter he founded for unwed mothers. He died in prison. After Gunn’s killing, Burt had announced, “We don’t condone this, but we have to remember that Dr. Gunn has killed thousands and thousands of babies.” At trial, Griffin claimed he’d been manipulated by Burt and others.
The jury had little sympathy for Griffin, who was found guilty of first-degree murder and sentenced to life in a Florida state prison, with a mandatory minimum of 25 years. In a television interview broadcast in Australia in 2010, he didn’t say anything about having been brainwashed. Rather, Griffin owned his actions, saying that “we’re all commanded to protect the innocent children. I just accepted that responsibility, I guess.”
How Republicans Became Anti-Choice
The Republican Party used control of women’s bodies as political capital to shift the balance of power their way.
It is impossible to understand American politics of the past half-century without taking abortion into account. The Brett Kavanaugh charade most recently, the machinations of the Republican Party more generally, and the infectious fundamentalism creeping into everyday life: all begin with abortion. Other issues may have been as divisive—civil rights comes to mind—but none has been as definitional. These days, the litmus test for Republicans running for political office or nominated to the judiciary is opposition to abortion. On the Democratic side, it is almost equally crucial to be pro-choice. Yet as the Netflix documentary Reversing Roe ably shows, this was not always the case.
Roe v. Wade, the Supreme Court decision establishing a woman’s constitutional right to terminate a pregnancy for any reason in the first two trimesters, and in the third trimester under certain circumstances, was issued in 1973. Seven justices affirmed the decision, with Harry Blackmun, a Nixon appointee, writing for the majority. If that seems strange to us now—a conservative justice on a conservative court invoking a right to privacy on behalf of women—it is because the alliance between the Right to Life movement and the right wing appears to us to be so close as to be preordained. But in the late 1960s and early 1970s, many Republicans were behind efforts to liberalize and even decriminalize abortion; theirs was the party of reproductive choice, while Democrats, with their large Catholic constituency, were the opposition.
Republican governor Ronald Reagan signed the California Therapeutic Abortion Act, one of the most liberal abortion laws in the country, in 1967, legalizing abortion for women whose mental or physical health would be impaired by pregnancy, or whose pregnancies were the result of rape or incest. The same year, the Republican strongholds of North Carolina and Colorado made it easier for women to obtain abortions. New York, under Governor Nelson Rockefeller, a Republican, eliminated all restrictions on women seeking to terminate pregnancies up to twenty-four weeks gestation. (Reversing Roe shows young women in Dallas boarding airplanes headed to these states.) Richard Nixon, Barry Goldwater, Gerald Ford, and George H.W. Bush were all pro-choice, and they were not party outliers. In 1972, a Gallup poll found that 68 percent of Republicans believed abortion to be a private matter between a woman and her doctor. The government, they said, should not be involved.
READ ENTIRE ARTICLE AT NEW YORK REVIEW
The Evangelical Abortion Myth
The rhetoric about abortion being the catalyst for the rise of the Religious Right collapses under scrutiny.
The Religious Right’s most cherished and durable myth is its myth of origins. According to this well-rehearsed narrative, articulated by Jerry Falwell, Pat Robertson, and countless others, evangelical leaders were shaken out of their political complacency by the United States Supreme Court’s Roe v. Wade decision of January 22, 1973. Falwell even recounted, albeit fourteen years later, his horror at reading the news in the January 23, 1973, edition of the Lynchburg News. “The Supreme Court had just made a decision by a seven-to-two margin that would legalize the killing of millions of unborn children,” Falwell wrote. “I sat there staring at the Roe v. Wade story growing more and more fearful of the consequences of the Supreme Court’s act and wondering why so few voices had been raised against it.”
This myth of origins has Falwell and other evangelical leaders emerging like mollusks out of their apolitical stupor to fight the moral outrage of legalized abortion. Some even went so far as to invoke the moniker “new abolitionists” in an apparent effort to ally themselves with their antebellum evangelical predecessors who sought to eradicate the scourge of slavery.
The rhetoric about abortion being the catalyst for the rise of the Religious Right, however, collapses under scrutiny. Evangelicals considered abortion a “Catholic issue” until the late 1970s. In 1968, the flagship evangelical magazine Christianity Today convened a conference with another evangelical organization, Christian Medical Society, to discuss the ethics of abortion. After several days of deliberations, twenty-six evangelical theologians issued a statement acknowledging that they could not agree on any one position, that the ambiguities of the issue allowed for many different approaches. “Whether the performance of an induced abortion is sinful we are not agreed,” the statement read, “but about the necessity of it and permissibility for it under certain circumstances we are in accord.” The statement cited “individual health, family welfare, and social responsibility” as possible justifications for abortion and allowed for instances when fetal life “may have to be abandoned to maintain full and secure family life.”
Evangelicals in the late 1960s and throughout most of the 1970s by and large refused to see abortion as a defining issue, much less a matter that would summon them to the front lines of political activism. Abortion simply failed to gain traction among evangelicals, and some groups with historic ties to evangelicalism pushed for legalization. In 1970, for example, the United Methodist Church General Conference called on state legislatures to repeal laws restricting abortion, and in 1972, at a gathering Jimmy Carter addressed while governor of Georgia, the Methodists acknowledged “the sanctity of unborn human life” but also declared that “we are equally bound to respect the sacredness of the life and well-being of the mother, for whom devastating damage may result from unacceptable pregnancy.”
READ ENTIRE ARTICLE AT RELIGION DISPATCHES
The Tie Between the Buffalo Shooting and Banning Abortion
The two may seem unconnected, but a centuries-long history of panic about White birth rates binds them together.
On Saturday, while thousands of people gathered at rallies across the country to protest the potential overturning of Roe v. Wade, a gunman entered a supermarket in Buffalo with what authorities say was the intent to kill Black people. Although it was coincidence that these two events happened on the same day, understanding them together reveals the shared roots of racist violence and antiabortion policies. Both are part of a long history of American anxiety about fertility and the reproduction of a native-born “White race.”
Authorities say the Buffalo suspect left an online screed centered on the “great replacement,” a debunked idea that claims there is a plot to replace the White population with immigrants and African Americans. Republicans have made the theory mainstream recently, but it also has a longer history connected to racist and eugenic concerns about the supposed demographic decline of the native-born White population. These same concerns helped make abortion illegal in 19th-century America, and at least some right-wing activists, like Matt Schlapp, the influential head of the Conservative Political Action Conference (CPAC), see a tie between the two issues today.
During the 18th- and early-19th centuries, stopping a pregnancy before quickening — when the pregnant woman could feel fetal movement — was not considered an “abortion” at all in our modern sense of the term. Women were aware of methods to restore menstruation before quickening and these practices were not criminalized, although there was some regulation of abortifacients if they were seen as dangerous to the pregnant woman’s life.
This began to change after 1857, when the American Medical Association (AMA), a new organization at the time, launched a campaign to make abortion illegal at every stage of pregnancy. The campaign stemmed from physicians’ desire to gain professional authority, to control and regulate the practice of medicine and to restrict their competitors, including midwives.
The AMA’s campaign against abortion gained steam from anxieties about immigrants in the late-1850s, and after the Civil War, about the free Black population. Supporters of criminalizing abortion claimed that the birthrate was declining among native-born Whites, even while immigrants, many from Southern and Eastern Europe, were having large families.
The leader of the medical campaign against abortion, the physician Horatio Storer, lamented that this pattern of fertility could portend a disaster for the spread of U.S. power across the continent. Imagining a southern and western United States populated by African Americans, alongside immigrant Mexicans, Chinese and European Catholics, he asked whether those regions would be “filled by our own children or by those of aliens?” To Storer, “the future destiny of the nation” depended upon the “loins” of White women.
READ ENTIRE ARTICLE AT THE WASHINGTON POST
Roe Is the New Prohibition
The pro-life movement needs to know that such culture wars result not in outright victory for one side but in reaction and compromise.
The culture war raged most hotly from the ’70s to the next century’s ’20s. It polarized American society, dividing men from women, rural from urban, religious from secular, Anglo-Americans from more recent immigrant groups. At length, but only after a titanic constitutional struggle, the rural and religious side of the culture imposed its will on the urban and secular side. A decisive victory had been won, or so it seemed.
The culture war I’m talking about is the culture war over alcohol prohibition. From the end of Reconstruction to the First World War, probably more state and local elections turned on that one issue than on any other. The long struggle seemingly culminated in 1919, with the ratification of the Eighteenth Amendment and enactment by Congress of the National Prohibition Act, or the Volstead Act (as it became known). The amendment and the act together outlawed the manufacture and sale of alcoholic beverages in the United States and all its subject territories. Many urban and secular Americans experienced those events with the same feeling of doom as pro-choice Americans may feel today after the Supreme Court’s overturning of Roe v. Wade.
Only, it turns out that the Volstead Act was not the end of the story. As Prohibition became a nationwide reality, Americans rapidly changed their mind about the idea. Support for Prohibition declined, then collapsed. Not only was the Volstead Act repealed, in 1933, but the Constitution was further amended so that nobody could ever try such a thing ever again.
That’s where the story usually ends. But now let’s add one more chapter, the one most relevant to our present situation. When Prohibition did finally end, so too did the culture war over alcohol. Emotions that had burned fiercely for more than half a century sputtered out after 1933. Before and during Prohibition, alcohol had seemed a moral issue of absolute right and wrong. Between heaven and hell (as the prohibitionists told it), between liberty and tyranny (as the repealers regarded it), how could there be compromise?
READ ENTIRE ARTICLE AT THE ATLANTIC
Fetal Rites
What we can learn from fifty years of anti-abortion propaganda.
The strongest argument against abortion is not an argument at all. It’s the image of the fetus — tiny feet, perky nose, pre-melanin skin — and of its often grisly death. The persuasive potential has been clear for over a century; Progressive-era anti-abortion doctors toured the country with glass slides featuring embryos and fetuses at various stages of development. In 1910, a Missouri gynecologist expressed his hope that an enlarged picture of a six-week-old embryo “would keep many women from having an abortion done.”
Most Americans would not, however, see a fetus for decades: ultrasounds became widespread only in the 1970s. It was a revelation when Life debuted a “living eighteen-week-old fetus shown inside its amniotic sac” on its April 1965 cover. The fetus in question had actually been either miscarried or aborted and was photographed outside the womb. If alive, it had only seconds to live. But this was easy to miss. The colors were otherworldly, the fetus adorable, and the magazine’s banner, conveniently enough, read LIFE in large print. The issue sold faster than any before or since: eight million copies in four days.
Those opposed to abortion were thrilled to learn that something only eighteen weeks into gestation looked so much like a baby. Early Catholic sanctity-of-life arguments had been rather dry — for the theologically unconvinced, it was hard to get worked up about a fertilized egg, and even harder to oppose “abortifacient contraception.” Here, finally, was an ecumenical, even atheistic argument: you don’t have to believe in any God to recognize an arm not so different from your own. Anti-abortion activists began to obtain pictures of aborted fetuses from doctors sympathetic to the cause. By 1971, Jack and Barbara Willke, a doctor and nurse who taught abstinence-only sex education, had collected enough to publish their Handbook On Abortion, which sold some 1.5 million copies. They later chose the most alarming pictures for a pamphlet titled Life or Death, which reached hundreds of thousands more readers. At eight weeks, the pamphlet declares of the fetus, “he swims freely in the amniotic fluid with a natural swimmer’s stroke.” Below the text is a picture from an abortion at ten weeks: a tiny dismembered arm resting on clotted blood.
In 1970, the Reverend Paul Marx got his hands on a video of a vacuum aspiration abortion — doctors, pleased by the first-trimester procedure’s low risk to their patients, had made it for training purposes — and showed it to a group of Catholic college students. “This kind of film,” Marx later wrote excitedly to his bishop, “is worth hours of lecturing.” Jack Willke bought a separate video of the same procedure, which he edited and narrated over for maximum pathos. The money shot was when visible bits of tissue, which Willke describes as “parts of the baby,” come whipping through the vacuum tube. By 1972, the Willkes, sometimes called the patriarch and matriarch of the pro-life movement, were lecturing with graphic slides before 70,000 people a year.
READ ENTIRE ARTICLE AT THE DRIFT
What Everyone Gets Wrong about Evangelicals and Abortion
Evangelicals started speaking out against legal abortion long before the late 1970s.
In the wake of Justice Samuel A. Alito Jr.’s leaked draft Supreme Court opinion that would overturn Roe v. Wade, a familiar narrative has emerged. The story goes like this: White evangelicals didn’t care much about abortion until the late 1970s. Around that time, two prominent leaders of the soon-to-be-named “Religious Right,” Paul Weyrich and Jerry Falwell, concluded that overtly racist politics would harm, not help, their quest for political power. They turned to abortion as a convenient wedge issue in the 1978 midterm elections to drive evangelicals to the polls and distract from the “real” motivations of the far right: stopping racial integration and preserving the tax-exempt status of segregationist Christian schools.
But this oversimplified narrative about abortion reduces the rise of the religious right to the cynical calculations of elite movement leaders — rather than to the actions of thousands of grass-roots activists, religious leaders and conservative thinkers who spent nearly two decades building the networks and ideas that brought about the religious right. It also disentangles abortion from a web of interconnected issues from the 1960s and ’70s, including opposition to the proposed Equal Rights Amendment (ERA) to the U.S. Constitution, school prayer, school integration, changing attitudes about gender and sexuality and the growing gay rights movement. Those issues were shaped directly and indirectly by racist ideas and attitudes and were part of a broader political realignment that moved White Southern evangelicals and Northern White Catholics from the Democratic Party to the GOP in this period.
Most importantly, this simplified history of abortion ignores the vast and decades-long, Catholic-led antiabortion movement and the coincident politicization of White evangelicals for nearly two decades before the 1978 midterm elections. Understanding this history is vital for making sense of the nearly 60-year interfaith movement that has led to this moment.
Catholic leaders had long opposed abortion, becoming especially vocal in the 1930s when the Great Depression led to an uptick in women seeking the procedure. By the early 1960s, some evangelicals were beginning to view abortion as murder and a source of growing social and political concern. Twelve years before the Roe decision, a young woman wrote to the leading U.S. evangelist, the Rev. Billy Graham, with the following question: “Through a young and foolish sin, I had an abortion. I now feel guilty of murder. How can I ever know forgiveness?” Graham, whose syndicated newspaper column “My Answer” reached millions of Americans, replied: “Abortion is as violent a sin against God, nature, and one’s self as one can commit.” Graham telegraphed evangelicals’ unease with abortion, which would become increasingly political in the coming years.
As state legislatures across the country contemplated legalizing abortion in the mid-1960s — buoyed by support from members of the medical and legal communities, as well as certain more liberal religious groups and, in particular, from the growing women’s liberation movement — evangelical antiabortion voices also emerged in the debate. At the time, there was growing awareness, but also a lot of confusion and ambivalence about abortion among these Christians. An article in a 1967 issue of the evangelical magazine Eternity captured this shifting terrain. It noted that the Bible was “strangely silent” on the question of whether the “unborn fetus” — not, tellingly, the “unborn child” — was a “living person with all the rights of life.” To combat that silence, a smattering of evangelical ministers began participating in Catholic-led “Right to Life Sundays.”
But a real turning point occurred when a statewide referendum on abortion took place in Michigan in 1972. Catholics there led the charge to oppose legalizing abortion. Crucially, they did so in a loose coalition with evangelical denominations, including Missouri Synod Lutherans, Dutch Reformed churches and Southern Baptist Convention churches. These groups managed to get 60 percent of voting Michiganders to oppose abortion law reform by emphasizing that abortion was murder. The campaign codified a visual iconography that is now rote, with mutilated fetuses and endangered White babies at its center. The victory also marked the beginning of an important political coalition in the making between evangelicals and Catholics who opposed abortion.
This type of religious cooperation was now possible because the meaning of abortion had changed for many evangelicals. Initially, most states proposed legalizing abortion only in “extreme cases”: to save the life of the expectant woman and in cases of rape, incest and fetal deformity. The Southern Baptist Convention passed a resolution in 1971 calling on Southern Baptists to “work for legislation that will allow the possibility of abortion under such conditions.”
Yet, in the wake of the 1973 Roe v. Wade decision, which (like the state of New York before it) allowed women to elect to have a legal abortion for any reason through the second trimester of pregnancy — before the point at which the fetus could viably live outside the mother’s body — evangelicals came to see abortion differently. A statement from the National Association of Evangelicals immediately responding to Roe lamented that the decision “made it legal to terminate a pregnancy for no other reason than personal convenience or sociological considerations.” That idea grew in evangelical circles as the number of legal abortions increased soon after. By 1975, 3.5 million women, or 1 in 14 women of reproductive age, had had an abortion.
That same year, a prominent group of Protestants, including J.A.O. Preus II, president of the Lutheran Church-Missouri Synod; Harold Lindsell, the editor of Christianity Today; and Ruth Graham, wife of the Rev. Billy Graham, founded the Christian Action Council to remind “non-Roman Catholic Christians that virtually all Christians have been against abortion from the beginning and for the protection of human life.” Quickly, evangelical denominations and institutions adopted across-the-board opposition to abortion.
These high-profile evangelical thinkers dovetailed with a groundswell of antiabortion sentiments from grass-roots activists. Evangelical women entered the political arena by joining state-level campaigns against the Equal Rights Amendment. The anti-ERA movement was a theological and political melting pot, bringing together Catholic anti-feminist leaders like Phyllis Schlafly with evangelicals across the country to oppose a range of perceived feminist threats to the traditional nuclear family.
In 1977, this synergy was on display at the federally funded and feminist-led National Women’s Conference in Houston, as busloads of conservative evangelical and Catholic women showcased a highly refined political vocabulary to describe the ERA and abortion as intertwined threats to the divinely supported patriarchal familial order.
Given the deep history of animosity and tension between Catholics and evangelicals, this new political alliance was not always easy. To avoid alienating their congregants, evangelical antiabortion activists regularly made sure to remove Catholic imagery, such as the rosary and the Virgin Mary, from antiabortion literature. The Baptist Texas pastor Robert Holbrook, who founded Baptists for Life in 1973, ran antiabortion ads in Baptist newspapers that removed any references to the National Right to Life Committee, a largely Catholic organization that provided him with materials. Holbrook encouraged other evangelicals to develop materials that were published by their denominations, so as not to be perceived as Catholic. Still, despite these tensions, a viable new political alliance had been forged.
These developments set the stage for a large and coordinated Catholic and evangelical antiabortion effort in the 1978 midterm elections. Both the (Catholic) National Right to Life Committee and the (evangelical) Christian Action Council worked through their particular religious communities to mobilize voters against politicians who supported abortion rights. In places like Iowa, Minnesota and New Hampshire, a new crop of conservative, religious, antiabortion Republican candidates — who opposed more moderate candidates in their own party who supported legal abortion, as well as the Democratic Party’s increasing embrace of feminist proposals like the ERA and legal abortion — defeated Democrats who supported legal abortion. The results were so remarkable that political observers at the time commented on the emergence of a new band of “single-issue voters” who made their political decisions solely on the issue of abortion.
In other words, by the 1978 midterm elections, there was already a large and growing antiabortion movement that had energized evangelicals for almost two decades. Conservative leaders tapped into this movement, creating new, politically minded religious groups — notably Falwell’s Moral Majority in 1979, which mobilized voters behind Ronald Reagan’s winning presidential campaign in 1980.
This powerful political coalition was not a last-minute manipulation of gullible voters in the late 1970s. Instead, it reflected a decades-long coalescing of religious and social conservatives around a host of issues related to sexuality, gender and, certainly, race.
READ ENTIRE ARTICLE AT THE WASHINGTON POST
Abortion Pill Decision Reveals How the Debate Has Changed Since Dobbs
The medication abortion decision by a federal judge in Texas focused on the rights of fetuses and the interests of doctors — not the rights of women.
On Friday night, in an unprecedented ruling, U.S. District Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, one of two drugs used in medication abortions. A competing opinion from U.S. District Judge Thomas Rice — who ordered the FDA to preserve the status quo regarding mifepristone — created uncertainty as the Biden administration moved swiftly to appeal Kacsmaryk’s ruling.
Strikingly, Kacsmaryk used the language of the antiabortion movement throughout his opinion, including claiming that mifepristone “starves” the gestating being “to death.” Kacsmaryk also refused to use the word “fetus” because it refers to only one of several stages of development during pregnancy, and instead employed “unborn human” and “unborn child.”
The judge cited scientifically dubious claims about the potential for side effects and trauma for those who use mifepristone for abortions. Yet, Kacsmaryk emphasized the rights of those “unborn humans” and the interests and perspectives of physicians, while generally shunting the lives — and especially the preferences — of those who might be pregnant to the margins of his reasoning. This focus fits into an increasingly prominent theme in abortion politics since the Supreme Court revoked the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
The debate over abortion has returned to the assumptions that guided it before the Supreme Court’s 1973 decision in Roe v. Wade recognized the right to abortion. In that pre-Roe period, both sides often ignored women and focused on the rights of medical professionals. Justice Harry Blackmun’s opinion in Roe reoriented the focus of debate to emphasize pregnant women and their lives. But Dobbs has returned us to the past. Studying how women and their advocates fought their way onto center stage, and the immediate pushback they engendered, help clarify what’s at stake in today’s erasures — and how proponents of abortion rights can redirect the conversation once again.
Before the late 1960s, abortion litigation primarily consisted of criminal defense work for professionals charged with performing or abetting abortions. That all changed due to activists in the grass roots women’s movement, who treated abortion restrictions as proof of sex-based discrimination. Their thinking spurred social-change-oriented lawyers to see the potential for an affirmative litigation strategy that went beyond defending doctors charged with abortion-related crimes and instead asserted the constitutional rights of abortion seekers. In 1969, advocates filed the first federal court case — Abramowicz v. Lefkowitz — in which they claimed that the right to have an abortion was a crucial component of equal rights for women.
Feminist attorney Nancy Stearns and four co-counsels argued that New York’s highly restrictive abortion law violated the rights of female citizens. The plaintiffs were women from all walks of life — married and unmarried, parenting and childless, those who had had abortions in the United States or abroad and those who had not had abortions when they wanted or felt they needed them.
The legal team in Abramowicz had to address the issue of “standing” — that is, whether women as women were legitimate parties to the suit. To surmount this legal barrier, the attorneys presented a novel claim: No one had “a greater personal stake” in access to abortion than a woman who could get pregnant, they argued, because of the ways an unwanted pregnancy, or an unsafe or illegal abortion, could shape her life. The plaintiffs also had standing because of their vulnerability to legal enforcement: “[E]very woman,” the attorneys claimed, was “in the position of a criminal for the very fact of attempting to control her own body.” The lawyers’ arguments focused not on doctors but on women and their lives.
The judges hearing the case did allow some antiabortion advocates to intervene and argue for the “welfare of the child in utero.” These advocates claimed that “the unborn child” needed “protection against all adversaries — including,” or especially, “its mother.” The judges, however, rejected an attempt by an antiabortion advocate named George Eaton to go further. Eaton petitioned the court to name him as a stand-in for the interests of the fetus. He argued that “the unborn infant [was] a person entitled to the same rights, privileges and protections … as are afforded to people already born.”
Crucially, none of the arguments made by the antiabortion forces considered the rights or perspective of the mother at all. As far as they were concerned, the fetus was the only one whose rights needed safeguarding.
In 1970, New York liberalized its abortion laws, and the Abramowicz case became moot. Immediately, antiabortion advocates went to court to try to undo what was now the nation’s most liberal abortion law. Law professor Robert Byrn, who would soon draft a brief for the National Right to Life Committee in Roe, adopted the same arguments pushed by Eaton and his attorney. He completely ignored women and argued for the citizenship rights for embryos or fetuses between four and 24 weeks of gestation. In fact, as Stearns observed, his claims sounded as if they were “virtually the same argument word for word” that she and her colleagues had made on behalf of women’s rights in Abramowicz,with one striking difference — the antiabortion lawyers claimed “a fetus has those rights.”
This kind of argument, however, became legally untenable in 1973 because Blackmun’s opinion in Roe permitted states to regulate abortion access in the second portion of a pregnancy (approximately weeks 12 to 24) — but only to the extent that such restrictions were “reasonably related to maternal health.” This language forced legal and policy advocates to center claims about pregnant women’s health in debates over abortion because that was the key metric for the courts as they assessed abortion restrictions.
But that didn’t change the thinking of antiabortion advocates. During congressional debate over a potential Human Life Amendment to the U.S. Constitution in the 1980s, they resurrected their earlier claims, with one man even testifying that “the fetus is an astronaut in a uterine spaceship”— a metaphor that erased the adult in whose body the uterus and the fetus resided. This prompted activist Sarah Schulman and other feminists in the chamber to rise and shout, “A woman’s life is a human life,” which led to contempt-of-Congress convictions and fines. Still, thanks in part to protests like this one, the Human Life Amendment did not pass Congress.
That forced antiabortion activists to change their strategy — even if their convictions remained the same. They, too, began to place arguments about maternal health at center stage. They increasingly pushed for laws that treated physicians as the enemy and posed the antiabortion movement as the savior of abortion patients who were their victims.
In 1992, in Planned Parenthood v. Casey, the Supreme Court introduced a new balancing test for evaluating abortion regulations that compelled litigants to place pregnant women in the middle of their analysis when they argued about how much of a “burden” a restriction on abortion access imposed versus how much of a “benefit” it might bestow. The court reaffirmed such a test in Whole Woman’s Health v. Hellerstedt (2016), before dramatically reversing course in Dobbs.
The medication abortion case, and Kacsmaryk’s opinion in it, haveexposed how Dobbs not only revoked a right, but also enabled a return to the language of pre-Roe abortion fights. The doctors who brought the case argued, as Kacsmaryk explained, that they were entitled to challenge FDA approval of mifepristone because “adverse events” from it “can overwhelm the medical system” (though they never had) and because complications from a medication abortion might compel them to be “complicit in abortion,” which would impose potential “pressure and stress.”
Kacsmaryk accepted these arguments, explaining away the absence of actual abortion patients in the case. Antiabortion doctors, he wrote, were appropriate surrogate plaintiffs. He insisted that, unlike doctors who provide access to mifepristone, the antiabortion doctors had no conflict of interest because they received no income for opposing abortion.
Kacsmaryk’s ruling also reveals that the changed focus of the abortion debate makes it easier to restrict access to abortion and to dehumanize women. The lesson of Abramowicz and the battle against the Human Life Amendment is that undoing this change is crucial to success in safeguarding access to abortion. By forcing women as agents into the center of the debate, grass roots activists and lawyers were able to beat back claims of doctors’ interests and fetal rights — and to insist on women’s rights to choose whether to carry a pregnancy to term.
READ ENTIRE ARTICLE AT THE WASHINGTON POST
Conservatives Are Turning to a 150-Year-Old Obscenity Law to Outlaw Abortion
With the Comstock Act of 1873 coming back to life, reproductive care, LGBTQ protections, and a host of other civil rights are now at risk.
When Texas Federal Judge Matthew Kacsmaryk overruled the Food and Drug Administration’s approval of the abortion medication mifepristone late last Friday, not only was he attempting to wrest away control of our reproductive lives through a wild abuse of the law, but he was also attempting a resurrection of a notorious anti-abortion crusader who has been dead for more than a century, Anthony Comstock. Kacsmaryk is a Trump appointee serving on the United States District Court for the Northern District of Texas. Comstock is the uncanonized patron saint of sexual purity, the nineteenth-century moral entrepreneur behind an 1873 federal anti-obscenity law bearing his name, one that is still inexplicably on the books to this day. By bringing Comstock back to the forefront of the legal canon, Kacsmaryk wasn’t just ruling directly on abortion medication but offering notice that a 150-year-old law that many had presumed dead is the next vehicle that conservatives will employ to roll back sexual and reproductive freedom for anybody in the United States.
Kacsmaryk’s bow to Comstock comes in the latest order in a landmark abortion case brought with the backing of anti-abortion groups attempting to ban mifepristone, one drug used in medication abortion. It is one of the most consequential post-Dobbs reproductive rights cases, devised by legal minds on the Christian right, such as Alliance Defending Freedom, for the express purpose of winning a total, nationwide abortion ban. Kacsmaryk moves them closer to that goal in his order, citing the Comstock Act to support the plaintiffs’ attempt to overturn the FDA’s 23-year-old approval of mifepristone. Further, Kacsmaryk claims that the plaintiffs are likely to succeed in their argument that the Comstock Act already prohibits mailing mifepristone. The result is that the FDA’s approval of mifepristone will be overturned, effective this Friday, unless a higher court reverses Kacsmaryk’s ruling.
The Department of Justice has already challenged this order. It had also already weighed in on this precise question of the Comstock Act and mailing mifepristone for abortion. A recent memorandum from DOJ’s Office of Legal Counsel offers its interpretation of the Comstock Act, namely that it “does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.” We would not be in this position, of course, if it was ever a political priority to repeal the Comstock Law in its entirety. The same kind of dangerous mythmaking about legal norms that made Roe v. Wade seem inviolable is what got us here and what further enables the right’s all-out, deeply unpopular assault on our rights.
READ ENTIRE ARTICLE AT THE NEW REPUBLIC
The Real Origins of the Religious Right
They’ll tell you it was abortion. Sorry, the historical record’s clear: It was segregation.
One of the most durable myths in recent history is that the religious right, the coalition of conservative evangelicals and fundamentalists, emerged as a political movement in response to the U.S. Supreme Court’s 1973 Roe v. Wade ruling legalizing abortion. The tale goes something like this: Evangelicals, who had been politically quiescent for decades, were so morally outraged by Roe that they resolved to organize in order to overturn it.
This myth of origins is oft repeated by the movement’s leaders. In his 2005 book, Jerry Falwell, the firebrand fundamentalist preacher, recounts his distress upon reading about the ruling in the Jan. 23, 1973, edition of the Lynchburg News: “I sat there staring at the Roe v. Wade story,” Falwell writes, “growing more and more fearful of the consequences of the Supreme Court’s act and wondering why so few voices had been raised against it.” Evangelicals, he decided, needed to organize.
Some of these anti- Roe crusaders even went so far as to call themselves “new abolitionists,” invoking their antebellum predecessors who had fought to eradicate slavery.
But the abortion myth quickly collapses under historical scrutiny. In fact, it wasn’t until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. Why? Because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools. So much for the new abolitionism.
READ ENTIRE ARTICLE AT POLITICO MAGAZINE
The Eugenicists on Abortion
Contrary to what Clarence Thomas recently claimed, eugenicists never favored abortion as a means of population control.
Clarence Thomas recently issued a twenty-page opinion on the Supreme Court decision Box v. Planned Parenthood that went viral because he drew on Margaret Sanger, founder of the first birth control clinic in the U.S., and her connection to eugenics in order to argue that abortion is and historically has been a tool to control the reproductive lives of women of color. The opinion has already been critiqued for getting the history of eugenics wrong; for suggesting, if taken to its logical conclusion, that birth control should also be outlawed; for conflating the history of birth control with the history of abortion; and for ignoring that the history of forced sterilizations went hand-in-hand with the movement to outlaw abortion.
It also gets another major point wrong: eugenicists were, for the most part, adamantly anti-abortion. Thomas acknowledges that Margaret Sanger was in fact anti-abortion. However, he doesn’t explain that in taking this position, she fell in line with all the leading eugenicists of the day. In fact, racist arguments were at the foundation of many laws that made the procedure illegal in every state. As the nineteenth-century medical doctor Horatio Storer, who led the fight in outlawing abortion in the U.S., argued in 1866 in reference to the newly annexed “open” territories in the west and the recently emancipated south, “Shall they be filled by our own children or by those of aliens? This is a question that our own women must answer; upon their loins depends the future destiny of the nation.” Storer led the campaign to outlaw abortion and convince other medical doctors (mostly men) to follow suit by instilling the fear that it was primarily white women with means who were having abortions, and that because of their practices, the U.S. would soon be filled with the children of “aliens.”
The eugenics movement soon took up this argument, and early twentieth-century popular culture complied by circulating the belief that white women were doing the nation a disservice when they had abortions. Films like Lois Weber’s 1916 Where are my Children? were made with this fear as their premise. In this silent film, a wealthy white woman has a series of abortions behind her husband’s back because she doesn’t want to give up her leisure. In the meantime, her husband, a prominent lawyer, is fighting for the eugenic cause by trying to stop indigent, unhealthy, and already overcrowded families from having more children. Novels like Viña Delmar’s 1928 bestseller Bad Girl implicitly underscored this argument by suggesting that a white, middle-class woman’s job was to have children. Only lascivious, disreputable women have abortions, the novel not so subtly argues. And Anthony Comstock, the infamous moral reformer who helped pass many of the laws that made the circulation of any reference to abortion or birth control by mail illegal, promoted the erroneous belief that abortion was not a procedure a respectful woman would ever choose. Outlawing abortion was seen as a solution to coerce white middle-class and wealthy women to reproduce.
So where does Thomas’ argument about eugenicists using abortion to control the reproductive lives of black women, immigrant women, and disabled women fit in? The truth is that abortion was never, and will never be, a tool used to prevent women from reproducing. Those early twentieth-century eugenicists understood that well because they never argued for forced abortion as a practice to prevent groups of women deemed undesirable from having children. And why should they have used abortion when they had much better systems in place to control women’s reproductive lives? Buck v. Bell, the 1927 Supreme Court decision, legalized forced sterilization on women deemed “imbecilic.” Forced sterilization allowed the state to decide which women should be prevented from reproducing, while outlawing abortion allowed the state to ensure that some women had limited options for controlling when they reproduced–or how many children to have. The combination of these two laws created powerful control over women’s reproductive lives. It’s now been well documented that through the 1970s many states were sterilizing black women, Puerto Rican women, and poor women against their will and often without their knowledge. Long-acting contraceptives were also a far more successful method for controlling black women’s reproduction in the 1990s, as Dorothy Roberts has forcefully documented. And while forced sterilization is now illegal, and birth control without true consent is mostly a relic of history, today different methods are in place.
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What Antiabortion Advocates Get Wrong About the Women Who Secured the Right to Vote
The most famous suffragists largely weren’t anti-abortion and wanted women to have more control over their bodies.
Yet, it has also proved deeply controversial. Every year since Roe, a March for Life is held in Washington to protest the ruling. This year, it is scheduled for Friday.
March organizers have selected the theme “Life Empowers: Pro-Life Is Pro-Woman,” and tied the event to the 100th anniversary of the 19th Amendment to the Constitution prohibiting sex-based restrictions on the right to vote.
Serrin Foster, head of Feminists for Life, explained the link in organizers’ minds: “What most people don’t understand is that the first-wave feminists were, without known exception, all pro-life. They believed in the rights of slaves to be free, the right of women to vote, and they believed in the right of women and children to be protected from abortion.”
As scholars, including the editor of Elizabeth Cady Stanton and Susan B. Anthony’s archival papers have shown, many of these claims are based on repeated factual errors. The claims often mislead in another way as well: by omitting essential features of the suffragists’ beliefs about gender, justice and the law.
Antiabortion claims linked to Anthony — whose name headlines an antiabortion political action committee and is mentioned in a two-minute promotional video for this year’s March for Life — are commonly tied to an article that appeared in the Revolution, a women’s rights newspaper that she and Stanton, her political partner, published for two years.
The 1869 article denounced “child murder” and labeled abortion “a most monstrous crime.” But there is a major problem with attributing these sentiments to Anthony. Scores of writers published content in the Revolution. This column was signed “A.,” while when Anthony wrote in the newspaper, she used her initials, “S.B.A.” For this reason the editors of Anthony’s archival papers maintain that she did not write the article. Yet, the problem runs deeper than misattribution.
However little “A.” approved of abortion, the author wrote the article to oppose an effort to criminalize abortion that had been recently proposed by the influential New York Medical Gazette — reasoning that women should not be held legally accountable for the decision to end a pregnancy, given the injustice of the marriage laws that gave men control over the conditions in which women conceived and bore children. “A.” argued that the problem of abortion could only be resolved by changing the law of marriage to make it an equal partnership in which women could decide when to become a mother.
As “A.’s” protest illustrates, even when suffragists judged abortion wrong, it was not the central issue for Anthony and other activists like Stanton, whose legacy is also being appropriated by the organizers of the March.
The vote was their primary cause — and suffragists hoped to use the vote to transform the family by changing the unjust laws governing the conditions in which women conceived, bore and raised children. In particular, they opposed marriage laws giving a husband an absolute legal right to his wife’s sexual “services” and her labor in exchange for his obligation of financial support.
READ ENTIRE ARTICLE AT THE WASHINGTON POST
Birthright
What’s next for Planned Parenthood?
The Planned Parenthood health center in Brooklyn occupies ten thousand square feet on the sixth floor of an office building across the street from a courthouse. After you get off the elevator, you have to go through a metal detector. A guard behind bulletproof glass inspects your bags. The day I was there, in June, the waiting room was full; the line at the registration desk was ten deep. A bowl on the counter was filled with condoms, giveaways. A sign on the wall explained Plan B, the morning-after pill. In the waiting room, a couple of dozen women sat in rows of blue plastic chairs, texting. A few wandered over to a display of glossy brochures and picked up “Am I Ready to Have Sex?” or “Birth Control and GYN Care: For free. For real.”
Aside from its proximity to the site of the United States’ first birth-control clinic—opened in Brooklyn in 1916—the place is a typical Planned Parenthood clinic. Last year, seventeen thousand patients received medical care here. Two-thirds were insured by Medicaid, or paid reduced rates, or received free treatment. They were tested for S.T.I.s and U.T.I.s; they were prescribed birth-control pills and antibiotics; they were fitted for diaphragms and I.U.D.s and cervical caps; they learned how to check their breasts for lumps. They had pregnancy tests and Pap smears and abortions.
Nearly every woman there looked to be in her twenties, and everyone was wearing flip-flops and jeans and T-shirts or halter tops; outside, it was sultry. Ponytailed college students carried bike helmets and backpacks; women wearing head scarves clutched handbags. One woman had brought her boyfriend. Another had brought her son. He was playing with a Nintendo DS. Thumbs herky-jerky, he would sometimes elbow his mother by accident, and she would smile and stroke his cheek.
Nellie Santiago-Rivera has been the director of the Brooklyn health center for the past eleven years. The corkboard behind her desk is covered with family photographs. When she was a teen-ager growing up in the Bronx, a friend brought her to the Planned Parenthood clinic at 149th Street to get contraception. “Birth control is not something we talked about in my family,” she told me. Her parents were born in Puerto Rico. “We believed, ‘You light the candle, and you pray.’ ” A report published in 1965, when Santiago-Rivera was a girl, found that ninety-four per cent of women who died in New York City from illegal abortions were either black or Puerto Rican.
The Brooklyn health center is one of four clinics run by Planned Parenthood of New York City, an affiliate of the national organization. There’s one in Manhattan, one in the Bronx, and one in Staten Island. There are eighty-two Planned Parenthood affiliates nationwide, operating nearly eight hundred clinics. Planned Parenthood says that one in five women in the United States has been treated at a Planned Parenthood clinic. Critics of Planned Parenthood, who are engaged in a sustained attack on the organization, say that most of those women are going to those clinics to have abortions, paid for, in violation of the Hyde Amendment, with taxpayer money.
READ ENTIRE ARTICLE AT THE NEW YORKER
One of the 19th Century’s Greatest Villains is the Anti-Abortion Movement’s New Hero
Anthony Comstock, the 19th-century scourge of art and sex, is suddenly relevant again thanks to Donald Trump’s worst judge.
The Comstock Act, an 1873 federal law signed by President Ulysses S. Grant, is a relic of an era when free speech, medical privacy, and other rights that modern-day Americans take for granted effectively did not exist.
Nearly every word of this law, which is named after the Gilded Age anti-sex crusader Anthony Comstock, is unconstitutional — at least under the understanding of the Constitution that prevailed for nearly all of the past 60 years. The Comstock Act purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” or to mail any “thing” for “any indecent or immoral purpose” — vague words that inspired a century of litigation just to determine what concepts like “obscenity” actually mean.
And now, this puritanical law is back in vogue with the anti-abortion right wing.
A Trump-appointed judge who recently attempted to ban mifepristone, a drug used in more than half of all abortions in the United States, wrote an opinion that repeatedly cites a provision of the Comstock Act that also purports to ban “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” from being mailed.
Anthony Comstock, who died in 1915, never held high government office. The only federal office he ever held was an appointment as a postal inspector — a law enforcement position that gave him the power to enforce the law that bears his name. Yet wielding this office and using the authority given to him in his primary job as secretary of the New York Society for the Suppression of Vice (NYSSV), Comstock became the scourge of artists, authors, birth control activists, abortion providers, and pornographers.
At the height of his power, in 1883, Comstock successfully brought charges against an art gallery owner who sold high-quality reproductions of famous nude paintings — including Alexandre Cabanel’s masterpiece The Birth of Venus. A court deemed the paintings to be criminally obscene, and the art was seized.
Susan B. Anthony, Pro-Life Heroine?
Behind a quiet house museum are anti-abortion activists with a mission: to claim America’s most famous historical feminist as their own.
Like every house museum, the Susan B. Anthony Birthplace Museum in Adams, Massachusetts, sets out to tell a story. For the price of a $6 ticket, visitors can admire stacks of old quilts in the sunny room where the great suffragist was born and peruse 19th-century kitchen tools in a room where her father operated a small store. The self-guided tour ends in the “legacy room,” whose walls are lined with displays on Anthony’s later life and work.
The primary documentary evidence for Anthony’s “opposition to Restellism,” a 19th-century euphemism for abortion, are a few diary entries; a newspaper editorial; and the fact that her short-lived feminist newspaper, the Revolution, declined advertisements for “quack medicines” including abortifacients. From that thin gruel, the museum makes a feast. Anthony wrote in her diary in 1876 that her sister-in-law, recovering from an abortion (“tampering with herself”) would “rue the day she forces nature,” for example. She was friendly with women who wrote about abortion in much harsher terms. An excerpt from a speech Anthony delivered in 1875 spans the entirety of the wall: “When the office of maternity shall be held sacred … then, and not till then, will this earth see a new order of men and women, prone to good rather evil.”
These quotes are accurate, but their implication is wildly misleading. Historians say there’s almost no evidence that Anthony was pro-life in anything close to the way that term is used today. “I’ve been handling press questions about this for more than 20 years,” said Ann Gordon, an historian who edited the six-volume Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony. Pro-life activists have “got almost nothing to hang it on.”
That hasn’t stopped them from claiming Anthony as one of their own. Today, even as the modern feminist movement continues to embrace Anthony as its foremost 19th-century avatar, the modern pro-life movement is on a quest to make her the face of opposition to abortion. With an education campaign reinforced through books, articles, campus outreach, and institutions like the birthplace museum, the pro-life movement is making steady progress in rewriting what Anthony means to us. Their success shows just how quickly motivated forces can change the image of a major historical figure—and how tempting it can be to paint an earlier era as a reflection of our own.
What Are the Lessons of “Roe”?
A new book chronicles the decades-long fight to legalize abortion in the United States.
If you squint at it long enough, the abortion debate can look like an opportunity for conservatives to act like liberals—at least rhetorically. In arguing against abortion rights, conservatives cast themselves as brave advocates for an inconvenient moral truth. By standing up for the “little guy”—that is, the fetus—they claim to take the side of the oppressed. Like the most annoying of liberals, anti-choice conservatives can also treat this “oppressed class” as an ornament for their own self-regard, insisting that in their opposition to abortion rights, they provide “a voice for the voiceless.”
This co-optation of the best and worst of liberal tendencies by the anti-choice movement is the subject of Mary Ziegler’s new book, Roe: The History of a National Obsession, which surveys the rhetoric and arguments used by both sides of the abortion debate, beginning in the late 1960s—before the Supreme Court’s landmark Roe v. Wade decision in 1973, and before the issue became polarized along partisan lines—right up to Dobbs v. Jackson Women’s Health, the 2022 ruling that overturned Roe and eliminated the constitutional right to an abortion. Along the way, Ziegler’s book reveals how the anti-choice movement tried out and discarded a series of arguments in its search for a rationale that might appeal to judicial and general audiences alike. Her book can be understood as a history of the abortion as an argument, and how that argument has influenced American politics over the past half-century.
A legal historian who teaches at the University of California, Davis, Ziegler has written six books on abortion and the law. Though she’s unambiguously pro-choice, her work often aims to take a nuanced, more heterodox position on the issue, seeking to correct misconceptions about abortion’s history and highlight areas of agreement on both sides. Her first book, After Roe, recounted abortion politics in the first decade following the decision, when pro- and anti-choice activists had more in common than today’s readers might imagine. Her previous book, Dollars for Life, was a chronicle of the anti-choice movement’s victories in fundraising and in capturing the judiciary.
Dollars for Life was published last June; Ziegler is nothing if not prolific. She’s also rigorous: Her books are stuffed with facts more than analysis, though they’re sprinkled with just enough details about the major players involved to remind the reader that they were living human beings. But the strength of Ziegler’s books lies in their abundance of historical detail, immersing the reader in information about larger social movements and politics. Like its predecessors, Roe: The History is a dates-and-names book, though it aspires (also like its predecessors) to illuminate a central question that the historical record alone cannot answer: Why did Roe v. Wade become such a political lightning rod?
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The Original Comstock Act Doesn’t Support the New Antiabortion Decision
Judge Matthew Kacsmaryk rationalized his medication abortion opinion through a distorted reading of the long-dormant 1873 law.
America in the 1870s was a society obsessed with sexual morality. After the Civil War, some abolitionists turned their attention to ridding the country of vice. Temperance campaigns and anti-prostitution efforts dominated newspaper headlines and the work of charity organizations.
Anthony Comstock, a former Union soldier, became one of the most prominent players in this movement, with his zealous anti-obscenity work. Obsessed with rooting out pornography and sexual material, he began his career in New York where he founded the New York Society for the Suppression of Vice, personally leading surprise raids on bars, saloons, sex shops and houses of prostitution. He also went after newspaper editors and pamphlet authors whom he deemed immoral, including suffragist Victoria Woodhull.
Backed by wealthy donors, Comstock took his impressive collection of pornographic pictures, sex toys and contraceptive materials to Washington, D.C., where he displayed them at the Capitol to help galvanize Congress to pass anti-obscenity legislation.
In March 1873, Congress responded by passing an “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of immoral Use” — popularly known as the Comstock Act. The law made it illegal to send anything considered “obscene, lewd, or lascivious” through the U.S. Postal Service. Included among the list of “nonmailable” items: every “article, instrument, substance, drug, medicine, or thing designed, adapted, or intended for producing abortion.”
States soon followed by passing their own “mini-Comstock” laws, which they layered onto existing antiabortion and anti-contraceptive laws that they had enacted beginning in the 1840s. This phalanx of laws meant that for decades, the Postal Service hired postal inspectors to spy on private citizens’ mail to catch them sending anything deemed immoral by the act — including private discussions about birth control or abortion in personal letters. It was a massive invasion of privacy. Punishments could include prison time, large fines or even hard labor.
What few realize is that the initial draft of the Comstock Act contained an exception for physicians. While the Senate Committee on Post Office and Post Roads was drafting the bill, Sen. George Edmunds (R-Vt.) added an amendment stating that it prohibited “any article or medicine for the prevention of conception, or for causing abortion, except on a prescription of a physician in good standing, given in good faith.” Upon seeing the new version of the law, Comstock was appalled, writing in his diary that Edmunds probably had doctor friends “in the business” that he was trying to shield.
Yet, during floor debate over the bill, Sen. William Alfred Buckingham (R-Conn.) proposed replacing the physician exception — “line 13.” It is not clear why he did so although some historians have speculated that it might have had to do with a political rivalry between Buckingham and Edmunds, …
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How the Conservative War on Campaign Finance Regulation Hastened Roe’s Downfall
How the movement to end legal abortion became intertwined with a different conservative pet project.
There’s one man behind the Federalist Society-induced death of Roe v. Wade whose name you’ve probably never heard. James Bopp Jr. has dedicated his life to ending legal abortion in America. A “pro-life” conservative lawyer, Bopp spent more than three decades as general counsel for the National Right to Life Committee, which frequently brought legal challenges to Roe and coined the term that erroneously characterizes later abortions as “partial-birth abortions.” More recently, the organization made news by releasing model legislation that would criminalize providing help to anyone seeking abortion care “over the phone or internet.”
The right’s battle to end the right to abortion care involved a nearly fifty-year-long intertwined political and legal strategy. In her latest book, Dollars For Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, law professor Mary Ziegler tells the story of how a difference pet project of the conservative legal movement—deregulating campaign finance—became central to the religious right’s campaign to end legal abortion.
Dismantling campaign finance regulations enabled anti-choice activists to elect the conservative zealots who delivered the Supreme Court conservative supermajority that just overturned Roe. Quoting Justice Thurgood Marshall’s final dissent on the Court, the Dobbs dissenters sum up what conservatives understood early on: “Power, not reason, is the new currency of this Court’s decisionmaking.”
For Bopp and his ilk, the need to dismantle campaign finance regulations begins with the anti-choice movement’s failure to respond to Roe by passing a personhood amendment to the Constitution, making legal abortion unconstitutional. By the end of the 1970s, the effort had failed. Ziegler describes how anti-choicers, still determined to end legal abortion, turned their attention to trying to overturn Roe by transforming the federal courts instead. Most infuriating to anti-choicers were the Republican-appointed justices who were nominated, supported, and confirmed to the Court, only to rule from the bench in ways that the religious right viewed as compromising on abortion. Ziegler points to the pinnacle example of this trend for conservatives: the outcome in Planned Parenthood of Southeastern Pennsylvania v. Casey.
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Roe v. Wade (1973)
Roe v. Wade Lawyer ‘Amazed’ Americans Still Fighting Over Abortion
On the 45th anniversary of the famous decision, Sarah Weddington reflects on what has – and hasn’t – changed.
It was 45 years ago Monday — on Jan. 22, 1973 — that the U.S. Supreme Court announced its 7-2 decision in Roe v. Wade: that a woman’s constitutional right to privacy extended to decisions about whether to terminate a pregnancy, thus essentially declaring that laws prohibiting abortion were unconstitutional.
But, rather than closing the book on the issue, the ruling opened a Pandora’s box.
And it remains open to this day. On Thursday, the Trump administration revealed its plan to create a federal office that would protect medical providers who refuse to participate in abortion procedures. The next day, the White House declared the Roe anniversary to be National Sanctity of Human Life Day, and President Trump became the first sitting president to address the March for Life rally, the major anti-abortion gathering that’s been held annually since the first anniversary of Roe. And on Saturday, reproductive rights are sure to be a topic of discussion among the many who are marching nationwide in an encore of last year’s Women’s March.
One person with a unique perspective on the aftermath of Roe is lawyer Sarah Weddington, 72, of Austin. When she was just 26, in what would be one of several milestones in her legal career, she argued on behalf of “Jane Roe” (later revealed to be Norma McCorvey) in the famous suit. TIME has caught up with Weddington to mark the Roe anniversary before, a tradition of sorts that continued this week. Below is an edited transcript of that conversation.
The History of Southern Baptists Shows They Have Not Always Opposed Abortion
How the Southern Baptist Convention’s views on abortion changed during the 1980s, when a more conservative wing seized control of the denomination.
With an abortion case now before the U.S. Supreme Court, the Southern Baptist Convention of June 2022 encouraged its members to pray for the overturning of Roe v. Wade, the 1973 decision that made abortion legal in the U.S.
The resolution, “On Anticipation of a Historic Moment in the Pro-Life Movement,” was not without controversy, however. A faction of Southern Baptists who consider themselves “abortion abolitionists” argued the Convention should also call for the criminalizing of people who have abortions as murderers. Instead, the resolution calls on Southern Baptists to stand with and pray for “abortion-vulnerable women.”
The Southern Baptist Convention, the largest Protestant denomination in the U.S., and often referred to as the “bellwether for conservative Christianity,” has long voiced opposition to abortion. A Pew survey in 2014 found that two-thirds of Southern Baptists believed abortion should be illegal in most or all cases. In 2021, the Convention passed a resolution stating “unequivocally that abortion is murder” and calling for “abolishing abortion immediately, without exception or compromise.”
But Southern Baptists have not always been opposed to abortion.
The Convention expressed support for abortion in certain cases throughout the 1970s, until a more conservative wing seized control in the 1980s. I was a Southern Baptist at the time, and I now study the denomination. I understand the Convention’s stance against abortion as a reflection of leaders’ conservative beliefs about women, gender and sexuality.
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Scooping the Supreme Court
The first Roe v. Wade leaks happened fifty years ago.
Supreme Court watchers have been calling the leak of a draft opinion in advance of the Court’s abortion decision “unthinkable” and “unprecedented.” Chief Justice John Roberts has ordered an internal investigation by the marshal of the Court, and former Attorney General Bill Barr has suggested that a criminal probe may be warranted. Fifty years ago, however, the Court sprang another leak—two, in fact—in connection with the original Roe v. Wade decision. A rookie writer named David Beckwith published a story in Time magazine asserting that the Court was about to legalize abortion, a few hours ahead of the official decision. Speaking by phone the other day from his home in Austin, Texas, Beckwith said, “In my little incident, no one had any mal intent.” He joked, “They just had the bad judgment to trust me.”
Beckwith, a law-school graduate, joined Time’s Washington bureau in 1971, just as the Supreme Court was about to hear arguments in Roe v. Wade. On July 4, 1972, he noticed what he called “one of the strangest stories I’d ever seen” on the front page of the Washington Post. It had no byline and quoted no sources by name. But it contained an extraordinary number of confidential details about a struggle inside the Supreme Court chambers over the right to abortion. The story revealed that, while a majority of the Justices clearly supported a constitutional right to abortion, Chief Justice Warren Burger, who opposed abortion rights, wanted to hold off announcing a decision until President Richard Nixon could fill two vacancies on the Court—which Burger hoped would change the outcome.
Although no one seemed to pick up on the Post’s account, published on a national holiday, Beckwith took notice. He decided to dive in and report out the story, interviewing more than a dozen Court insiders, including Justices and clerks.
A close reading of the Post story shows that it was leaked by someone with inside knowledge of the Court’s private deliberations. It revealed the date on which the Justices had met to discuss the case, and also disclosed that the Court’s reigning liberal, Justice William O. Douglas, was enraged by what he viewed as Burger’s delay tactics, which he saw as an attempt to subvert the outcome. Douglas circulated a memo describing the Chief Justice’s improper power plays to his fellow Justices and their clerks. Within days, its contents were on the front page of the Post.
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The Unknown Supreme Court Clerk Who Single-Handedly Created the Roe v. Wade Viability Standard
All roads lead to Larry Hammond, Justice Lewis Powell’s law clerk at the time.
On Wednesday, the Supreme Court will reconsider the fundamental principle that has underpinned abortion law since the 1973 Roe v. Wade ruling: the right to end a pregnancy before the viability of the fetus.
Oral arguments will take place in Dobbs v. Jackson Women’s Health Organization, a case concerning Mississippi’s abortion ban after 15 weeks of pregnancy. The law was designed as a direct challenge to Roe, and the Supreme Court has accepted a question the state wants answered in its ruling: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
To understand the vulnerability of Roe v. Wade, one needs to dig into the backstory of how the case was decided almost 50 years ago. And when it comes to the viability standard, all roads lead to Larry Hammond, Justice Lewis Powell’s law clerk at the time.
Hammond’s bench memo to Powell in October 1972 is arguably the most important ever produced by a Supreme Court law clerk.
Clerks typically draft dry bench memos to justices outlining the facts and arguments to consider. But Hammond’s memo was the very source of the concept of viabilityin Roe.
The notion of using viability — the time when a fetus can survive outside the womb — had not even been argued by the litigants. It was Hammond’s suggestion.
Hammond died in March 2020 at 74 of complications from a lung disease. In 2013, I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.” It was the only extensiveinterview he ever gave on his behind-the-scenes work in the Roe case.
“Before he died, Justice Powell released me to speak about our interactions so long as I didn’t talk about other justices,” he told me. Our conversation clarified the decision-making process that underpins the legal precedent now coming under question.
Hammond was born in El Paso to Episcopalian parents with strong religious convictions. After law school at the University of Texas, he won a clerkship on the U. S. Court of Appeals in Washington and subsequently was hired by Justice Hugo Black in the summer of 1971.
Black was 85, and he suffered a series of strokes that resulted in his death in September 1971. Hammond was a clerk without a justice; he was reduced to shepherding schoolchildren on Supreme Court tours, playing basketball at the court’s facility and whiling away afternoons in gab sessions with Justice Thurgood Marshall.
By tradition, he should have been done at the end of the court’s term, but fate intervened. President Richard Nixon nominated Virginia attorney Lewis Powell to replace Black, and Powell decided to retain Hammond. Their partnership was immediate. Powell would write to Hammond when he completed his clerkship: “I think you are one of the ablest lawyers with whom I have ever worked. Your capacity of penetrating legal analysis is exceptional.”
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The Myth That Roe Broke America
The debate over abortion is an important part of the story of polarization in American politics, but it is not its genesis.
The idea that American politics became bitter and divisive because of Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, is a cherished bit of right-wing folk history, akin to the idea that Robert E. Lee opposed slavery or that the purpose of the Electoral College was to protect small states from the tyranny of big states. Like any political use of history, its purpose is to justify the use of power to achieve a desired end—in this case, the overturning of Roe and the elimination of women’s right to decide whether and when they have a child.
In his draft opinion overturning the decision, Justice Samuel Alito laments that Roe “sparked a national controversy that has embittered our political culture for half a century.” In classic Alito fashion, the justice contradicts himself later in the opinion, arguing that the justices cannot consider how society would be affected by Roe being overturned, insisting, “We would have no authority to let that knowledge influence our decision.” Alito’s defenders and fellow travelers have echoed this reasoning. The New York Times columnist Ross Douthat described the decision as “an inflection point where the choices of elite liberalism actively pushed the Republic toward our current divisions, our age of chronic strife.”
Roe is an important part of the story of polarization in American politics, but it is not its genesis. “The idea that Roe kickstarted polarization is a really dramatic oversimplification,” Mary Ziegler, a law professor at UC Davis and the author of the forthcoming Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, told me. “If people are genuinely upset about polarization, presenting Roe as the source of that denies that a lot of other people had responsibility. There were a lot of politicians, activists, media figures, and lawyers who deepened the divide on abortion and benefited from it.”
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America Almost Took a Different Path Toward Abortion Rights
Roe v. Wade was never expected to be the case that made history.
For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.
The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.
In the conference room, the women were giving sworn depositions for the judges to read later. One testified that as a 19-year-old Vassar student, she was driven blindfolded to Washington, D.C., for an illegal abortion and bled for days afterward. She broke down as she described going to see a gynecologist in Poughkeepsie who threatened to call the police so they could take her to jail. Another woman, speaking matter-of-factly, said that when she became pregnant and had to carry the fetus to term, she was forced to take a leave of absence from Queens College and lost her scholarship. The press was allowed to attend, making the women’s words public.
Lawyers representing the State of New York repeatedly objected to the testimony. When a freelance writer tearfully described giving a child up for adoption — “the most painful, difficult part of the experience was leaving the baby behind,” she said — Joel Lewittes, from the state attorney general’s office, stepped in. “I am going to move to strike all of the testimony as being irrelevant,” he said. Someone yelled “Pig!” and the room burst into applause.
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Why Norma McCorvey Switched Sides
The perils of turning the plaintiff in Roe v. Wade into a political symbol.
It is perilous for a person to become a political symbol. Norma McCorvey, the plaintiff at the center of Roe v. Wade, knew perhaps better than anyone the difficulties of representing something much larger than herself. When she stepped into public view, identifying herself as Jane Roe, she became an important voice in the pro-choice movement—the woman who carried her own unwanted pregnancy to term in order to secure the rights of millions of women not to. Later, she made a shocking conversion, transforming herself into a crusader for the pro-life cause. All along, she courted the attention: She told her story countless times to journalists and filmmakers, to the co-writers of her memoirs (one published before she switched sides, one after), to almost any organization willing to pay her to speak. What did she think she was doing?
In his new book, The Family Roe, Joshua Prager sifts through the many stories McCorvey told about herself, up to her death in 2017. Over more than a decade, Prager unraveled the details of McCorvey’s life, drawing on her personal records and his own interviews, and tracing her struggles with depression and substance abuse, with poverty and a difficult family, and with being gay in the conservative South, as well as the influence of the pro-choice and pro-life activists who wanted to claim her as a prize. As Prager reveals, much of what she said about her life was self-serving, riddled with exaggerations and lies. All too happy to accept a role in the great abortion morality play, she stubbornly refused to stick to the script.
Prager’s book is not just a biography but also political history. The Family Roe traces the rise of abortion in America, both before Roe v. Wade and after, as well as the backlash to the 1973 decision. In the process, he writes intimately about major figures on both sides of the fight, centering the story on three Texans—McCorvey; Mildred Jefferson, a star of the anti-abortion movement; and Curtis Boyd, a doctor who opened and still operates abortion clinics in Texas and New Mexico.
Their stories are of interest in large part because the battles they fought are still ongoing. The pro-life backlash to Roe began almost immediately after the 1973 decision and has been gaining ground ever since. In September, a law banning abortions after six weeks went into effect in Texas, unchallenged by the Supreme Court. On December 1, the court will hear a case challenging the repeal of a Mississippi law banning abortion at 15 weeks; the state is asking the court to overturn its earlier ruling and abolish federally protected abortion rights. This year, over 200 members of Congress filed a brief asking the Supreme Court to strike down the decision. One way or another, for nearly half a century, we have been relitigating Roe. And yet, all this time, we have known little about the central figures who dedicated their lives to this fight.
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“The Family Roe” and the Messy Reality of the Abortion “Jane Roe” Didn’t Get
A new book juxtaposes dominant narratives about motherhood, women’s autonomy, and abortion with the weirdness of ordinary lives.
I almost didn’t read The Family Roe: An American Story by Joshua Prager. When I saw the premise – a biography of Norma McCorvey, the “Jane Roe” of Roe v. Wade, and her family – I wasn’t immediately sure why I should care. I study the broad-scale social history of reproductive health and I had mostly considered plaintiffs to be incidental to Supreme Court cases, convenient (or as Prager demonstrates, not-so-convenient) examples of a common conflict that needs legal resolution. It was the principle of a case, and the impact of the decision on millions of lives, that mattered, not the specific individuals called to be stand-ins for everywoman.
But as Prager shows, a deep dive into the life of an ordinary person thrust into an extraordinary public matter can be immensely rewarding, humbling, and thought-provoking.
The power of Prager’s approach is that he juxtaposes dominant narratives about motherhood, women’s autonomy, and the morality of abortion with the messy weirdness of ordinary people’s private lives. At the heart of the book is Norma, whose life did not follow any culturally recognized script. She was a lesbian who enjoyed partying and lots of sex and slept with men sometimes. She never used contraception, so she had given up three children for adoption by the time she had her tubes tied at age 23 at the behest of her partner, Connie Gonzalez. After serving as the plaintiff in Roe v. Wade, she made her living for years as a pro-choice activist, before abruptly becoming a pro-life activist, following the meager money and occasional fame in abortion activism to the other side, and dragging Connie with her.
Like many Americans, Norma’s views on abortion were ambivalent and contradictory. Throughout decades of vocal pro-choice and pro-life activism she privately maintained the view that abortion should be legal, but only in the first trimester. And yet the abortion at the center of the court case – an abortion she sought but failed to obtain – would have taken place around 20 or so weeks of gestation. She believed that abortions were often necessary, but she still felt they were sinful.
Some months after the 1973 Roe v. Wade decision, pro-choice leaders tried to include the legal team and Norma herself in activism. Norma would need to be educated in middle-class feminist ways of speaking about abortion rights. Norma, though, was not so open to being domesticated. She liked to smoke and drink and use her own words. She didn’t like to be told to show up on time for interviews, or that she couldn’t use vodka to steady her nerves. For their part, pro-choice leaders wanted a symbol, not a person. Norma needed to mouth the correct words or be quiet. But Norma didn’t entirely believe the pro-choice narrative. And she sounded like a working-class Arcadian from the South, not a northeasterner with a private college education.
In 1995, after Norma began working as a receptionist at an abortion clinic in Dallas, the radical pro-life activist organization Operation Rescue opened a crisis pregnancy center next door. The leader, minister Philip Benham, targeted Norma for conversion.
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My Grandmother’s Botched Abortion Transformed Three Generations
Her death was listed as ‘manic depressive psychosis,’ and it sent five of her six children to orphanages.
When the Supreme Court overturned Roe v. Wade, my first thought was of my grandmother and the botched illegal abortion that transformed three generations of my family. My mother, Katherine, the fourth of six children, was born in Brooklyn to immigrants from Sicily. Her mother, Rosa, took care of the family and worked as a seamstress from home; her father, Giovanni, earned his living as a shoemaker. They struggled as many poor families did, then and now, to feed and clothe their children. Then Rosa became pregnant with child number seven.
She was 40. She had a baby, a 4-year-old, a 6-year-old, a 7-year-old, an 11-year-old and a 13-year-old. I imagine the method of birth control was rudimentary. Rosa’s older sister Margarita was distraught that Rosa would have another mouth to feed. Margarita persuaded her sister not to bear another child.
Margarita promised to make her a special drink, a combination of certain powerful plants (most likely pennyroyal, tansy or savin, among other ingredients that were used at the time). That concoction would “take care of it.” Rosa acquiesced to her older sister. My mother was 6 years old at the time.
My grandmother became feverish — most likely from an infection that turned into septic shock that evening — on fire from the poison, burning inside. Pennyroyal, I know now, can be toxic to the liver. My mom watched her mother stand up on her bed, pulling at her hair and asking God, “Why?”
Rosa Inzerillo was taken to Kings County Hospital in Brooklyn on April 18, 1927. She died on April 25 at about 7 a.m. The doctor was unable to state definitively the cause of death; the last diagnosis during her last illness was manic depressive psychosis. Contributory: exhaustion.
One late night at the kitchen table, my mother told me this story, slowly and quietly, haunted by the images of her mother’s death. For years, she had hinted that something tragic had happened but she had never put it fully into words until then. She remembered her Aunt Margarita whispering to her mother, coaxing her, while she played with her doll.
My grandfather worked at the Hanan Shoe Factory in Brooklyn for $35 a week. After my grandmother’s death, the Brooklyn Department of Welfare sent all the children to City Hospital. None of the immediate relatives was able to take in any of the children; after every family name — maternal uncle, aunt, grandmother — the official report says, simply: “Cannot assist.”
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How the Supreme Court Fractured the Nation — and How It Threatens to Do So Again
Abortion and America’s new sectional divide.
Kavanaugh has given assurances that he considers the status quo on abortion, after the 1973 decision in Roe v. Wade, to be settled law. He may be perfectly sincere. But the Dred Scott case demonstrates that settled law can become unsettled overnight.
Abortion isn’t directly analogous to slavery. For one thing, it lacks the economic importance slavery had to the South. Yet striking similarities exist. Those who would outlaw abortion today are as convinced of the morality of their position as the abolitionists were of the morality of theirs. Compromise is equated with surrender to sin, just as it was for Garrison and his comrades.
Until recently, there was a crucial difference between the fight over slavery and that over abortion. Slavery was a sectional issue in a way abortion was not. Yet this is changing, as the South and central part of the country turn redder and the coasts more blue. The lessons of the 1850s become more pertinent than ever.
Suppose Roe is reversed, and the states are allowed to restrict abortion as they see fit. Red states reduce access to abortion, in some cases nearly eliminating it. Blue states maintain or even liberalize their existing laws. The red states proclaim themselves right-to-life, the blue states right-to-choose. Women seeking abortions travel or move to the blue states, leaving the red states redder still.
Having repealed Roe, opponents of abortion would be tempted to push for a further step: the restriction or outlawing of abortion nationwide. Just as Massachusetts abolitionists felt compelled to condemn slavery in Georgia, so anti-abortionists in Texas would feel conscience-bound to try to prevent abortions in California.
They might not succeed, but the effort alone would cause many Californians to ask themselves whether their liberties were safe any longer in a Union with such people. California’s economy would rank it fifth in the world if it were an independent country. Californians might conclude that they could stand on their own and vote to secede. Perhaps they would be joined by Washington and Oregon, adding Amazon, Microsoft and Nike to the economic heft of the Pacific republic.
What would happen then is anyone’s guess. Would the heartland fight to keep the left coast in the Union? Maybe not. It’s worth noting that when the South seceded in 1860-61, many Northerners, not all of them abolitionists, applauded its departure. Lincoln took the opposite view, but another president might have let the South go. In fact, another president did let the South go: James Buchanan stood by amid the first wave of secession.
But even if there were no war, the rending of the Union would have consequences only the boldest or most naive ought to contemplate with equanimity.
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The Better Roe: The Case of Struck v. Secretary of Defense
When Susan Struck fought being discharged for pregnancy from the US Air Force, it brought the right to choose into a different light.
One day in the spring of 1970, while stationed in Phù Cát, Vietnam, air force nurse Susan Struck felt dizzy. She sat down, wondering what the problem was, and then it hit her: she was pregnant. Struck had joined the US Air Force Nurse Corps partly to avoid the traditional path of marriage and family that many of her friends had followed. She loved nursing, had even volunteered for a war zone assignment, and had no plans to trade her career for a family. But when she realized she was pregnant, she had only two options: face immediate discharge for pregnancy and leave the air force or have an abortion and remain on duty.
Struck decided to have an abortion. At the time, the US military permitted abortions in its hospitals, though the procedure’s availability in Vietnam varied, and so Struck planned to ask for permission to fly to Japan for the procedure. But after a dream about her fetus, she drew on her Catholic faith and decided to continue with the pregnancy and surrender the baby for adoption. She also resolved not to be discharged, so she hid her pregnancy for as long as she could. She was about seven and a half months along when her hospital’s chief nurse confronted her. The following day, Struck was on an airplane back to the United States, where she began a two-year legal battle to remain in the military.
Since formally admitting women to the armed forces, the US military had imposed regulations that restricted women’s sexuality and pregnancy, driven by both prevailing gender norms and a desire to safeguard the women’s and the institution’s reputations through a public image of heterosexual respectability. But in other ways, policies increasingly reflected a moderate approach to women’s concerns, and by 1970, military abortion policies outpaced much of the rest of the nation’s.
The Department of Defense (DOD) attempted to standardize its reproduction policies in 1966, a year after the US Supreme Court guaranteed married couples the right to reproductive privacy in Griswold v. Connecticut. The DOD ordered that birth control be made available to servicewomen and to the wives and daughters of servicemen worldwide, and it permitted abortion and sterilization “for medical reasons only.” Federal law regulated military medical care, but as states passed widely varying abortion laws in the late 1960s, many medical officers were unsure whether state laws applied. In early 1970, the surgeons general sought clarification from the DOD.
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Activism in the U.S.
The Civil Rights movement led the way, soon followed by anti-war protests and activism for women’s issues and gay rights.
The United States has a long history of activists seeking social, political, economic, and other changes to America—along with a history of other activists trying to prevent such changes. American activism covered a wide range of causes and utilized many different forms of activism.
American sociopolitical activism became especially prominent during the period of societal upheaval which began during the 1950s. The African American civil rights movement led the way, soon followed by a substantial anti-war movement opposing American involvement in the Vietnam War, and later by vigorous activism involving women’s issues, gay rights, and other causes.
The United States remains a land of nearly constant change, and activists play a significant role in the ongoing evolution of American democracy. It seems likely that Americans will remain enthusiastic activists in the future.
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The Roe Baby
After decades of keeping her identity a secret, Jane Roe’s child has chosen to talk about her life.
Nearly half a century ago, Roe v. Wade secured a woman’s legal right to obtain an abortion. The ruling has been contested with ever-increasing intensity, dividing and reshaping American politics. And yet for all its prominence, the person most profoundly connected to it has remained unknown: the child whose conception occasioned the lawsuit.
Roe’s pseudonymous plaintiff, Jane Roe, was a Dallas waitress named Norma McCorvey. Wishing to terminate her pregnancy, she filed suit in March 1970 against Dallas County District Attorney Henry Wade, challenging the Texas laws that prohibited abortion. Norma won her case. But she never had the abortion. On January 22, 1973, when the Supreme Court finally handed down its decision, she had long since given birth—and relinquished her child for adoption.
The Court’s decision alluded only obliquely to the existence of Norma’s baby: In his majority opinion, Justice Harry Blackmun noted that a “pregnancy will come to term before the usual appellate process is complete.” The pro-life community saw the unknown child as the living incarnation of its argument against abortion. It came to refer to the child as “the Roe baby.”
Of course, the child had a real name too. And as I discovered while writing a book about Roe, the child’s identity had been known to just one person—an attorney in Dallas named Henry McCluskey. McCluskey had introduced Norma to the attorney who initially filed the Roe lawsuit and who had been seeking a plaintiff. He had then handled the adoption of Norma’s child. But several months after Roe was decided, in a tragedy unrelated to the case, McCluskey was murdered.
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Pro-Choice Advocates Fear That Roe v. Wade Could Be Lost. But It Already Happened.
How “undue burden”—a concept nurtured by anti-abortion groups and championed by the first woman on the Supreme Court—has eroded the right to choose.
On June 29, 1992, as Justice Sandra Day O’Connor began reading the decision for Planned Parenthood v. Casey, 25-year old Andrea Miller sat in the audience stunned. She’d braced herself for the likelihood that the Supreme Court might overturn Roe v. Wade. Court watchers had speculated that O’Connor would cast the decisive vote to uphold the statutory provisions regulating abortion as laid out in the Pennsylvania Abortion Control Act, which included parental consent for minors, spousal consent for married women, and 24-hour waiting periods.
Miller had started as an assistant at the American Civil Liberties Union in New York City; she had requested to work under Kathryn Kolbert, co-counsel for the Reproductive Freedom Project from the Philadelphia office. Born to a college-aged mother six years before Roe, Miller says she grew up keenly aware of her mother’s financial hardships and thwarted dreams. In the fall of 1991, Miller helped the attorneys as they wrote Planned Parenthood of Southeastern Pennsylvania’s brief in Casey, which boiled down to one simple question: Is Roe v. Wade still the law of the land?
“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”
But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.
Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too? In the Supreme Court’s crowded vestibule, Miller huddled with other advocates from pro-choice organizations, scrambling to understand: Should the decision be framed as a win or a loss? Guards waved them toward the exits. Outside, reporters filled the stone steps, awaiting a reaction. For months the clinics’ attorneys had been insistent that the American public needed to understand exactly what was at stake. It was an election year; they wanted to rouse the mainstream pro-choice public out of complacency. In their courtroom arguments, they’d aimed simple language at the media and voters: Keep Roe on the books. But now they had a murky legal decision that upheld Roe in name but not in content.
Who Killed the ERA?
A review of “Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics.”
In the summer of 1968, George Wallace, in between terms as governor of Alabama, concluded that endorsing the Equal Rights Amendment for women would help his third-party presidential campaign. He declared his support in a telegram to Alice Paul, the head of the National Women’s Party, who had cowritten the first draft of the amendment in 1923 and had been campaigning for it for forty-five years. The pro-segregationist Wallace was hardly alone among conservative politicians in his position. Strom Thurmond, a Republican senator from South Carolina, likewise supported the amendment, saying in 1972 that it “represents the just desire of many women in our pluralistic society to be allowed a full and free participation in the American way of life.”
In fact, the Republican platform had supported the Equal Rights Amendment as far back as 1940; opposition had come mainly from pro-labor Democrats, who feared that equal treatment for men and women would mean an end to legislation that protected women from dangerous jobs. Labor opposition waned as the increasingly active feminist movement—frustrated that the Supreme Court had never interpreted the Fourteenth Amendment’s equal protection guarantee to apply to discrimination on the basis of sex—made passing the Equal Rights Amendment a top priority. In 1971 the House approved the ERA by a vote of 354–24. The Senate followed the next year by a vote of 84–8. The proposed amendment’s language was straightforward: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The necessary ratification by three quarters of the states—the magic number of thirty-eight—looked eminently achievable.
Shortly after Congress’s endorsement, however, Wallace repudiated his earlier support, and in his platform proclaimed:
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Dobbs v. Jackson Women’s Health Organization (2022)
The Anti-Abortion Movement and the Ghost of Margaret Sanger
Religious conservatives see “anti-eugenic” laws as the most promising path to establish a federal ban on abortion.
After half a century of unremitting assaults—years spent defunding abortion care, restricting abortion access, and terrorizing women and their doctors—the religious right has achieved its first major judicial breakthrough: the overturning of Roe v. Wade. Among a volley of first-term decisions by the ultraconservative Supreme Court supermajority installed by President Donald Trump, Dobbs v. Jackson Women’s Health Organization must be seen as part of an unfolding judicial counterrevolution.
The electoral pushback against the decision has been impressive, and no doubt stronger than Republicans had anticipated. In ballot initiatives in Kansas, Kentucky, California, Michigan, and Vermont, voters have either rejected proposed abortion bans or reaffirmed existing protections. Yet the Dobbs decision is unlikely to be the Supreme Court’s last word on the matter.
For decades, religious conservatives have wanted to overturn Roe and return abortion laws to state legislatures. But they have never seen this as the be-all and end-all of their struggle. For the right-to-life movement that emerged in the 1970s, the reversion of authority to states is a stepping stone on the road to a higher goal: a federal prohibition on abortion that would overrule the ability of any state to legalize the practice. The recognition of fetal personhood is a key plank in this agenda.
In the years leading up to the Roe decision in 1973, as legal historian Mary Ziegler recounts in Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, anti-abortion activists called on state and federal courts to recognize the civil rights of the unborn. They appealed to the Declaration of Independence, with its affirmation of an unalienable right to life, and to the Fourteenth Amendment (the Reconstruction-era amendment that reaffirmed and clarified the rights enumerated in the Declaration) to argue that the unborn deserved equal protection and due process like any other minority. In several instances, they cited as precedent the 1954 Brown v. Board of Education decision outlawing segregation, hoping to convince the courts that fetuses, like African Americans under Jim Crow, were natural persons unjustly deprived of their full rights to life.
Their efforts were unceremoniously rebuffed by Justice Harry A. Blackmun, author of the majority opinion in Roe, who argued that fetal personhood was nowhere to be found in the Constitution and that, in any case, the Court had no authority to rule on a matter that was unresolved among religious scholars and biologists. Crucially, however, Blackmun acknowledged that if the concept of “person” could somehow be construed to apply to the unborn, then no one could legitimately deny due process and equal protection rights to fetuses—and the case for abortion rights would “collapse.”
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Why There Are No Women in the Constitution
There is little mention of abortion in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.
Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
Because these facts appear to surprise Alito, abortion is likely to become a crime in at least twenty states this spring. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote, in a leaked draft of the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization. The draft decision, which Politico published on Monday night, would overturn Roe v. Wade, the 1973 decision legalizing abortion. Chief Justice John Roberts, promising an investigation, has not denied its authenticity. Five Justices have reportedly voted in accordance with the draft: Alito, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are sure to dissent. Roberts is not likely to concur. One theory has it that whoever disclosed the draft is trying to make it more difficult if not impossible for Roberts to recruit a defector from the majority. But, of course, this remains unknown.
About as wholly speculative as the question of who leaked this decision is the history offered to support it. Alito’s opinion rests almost exclusively on a bizarre and impoverished historical analysis. “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” he argues, making this observation repeatedly. Roe, he writes, was “remarkably loose in its treatment of the constitutional text” and suffers from one error above all: “it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.
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The Fight over Abortion History
The leaked draft opinion that would overturn Roe v. Wade also takes aim at its version of history, challenging decades of scholarship.
History, and arguments about history, have long been central to abortion jurisprudence.
In its 1973 decision in Roe v. Wade, the Supreme Court found a constitutional right to abortion, grounded in what it described as a “right to privacy” provided in the Fourteenth Amendment. And that legal argument was bolstered by a historical narrative.
State laws prohibiting abortion at all stages of pregnancy, Justice Harry Blackmun wrote in the opinion, were not of ancient or even common-law origin, but dated mostly to the late 19th century. Before that, he wrote, citing various scholars, abortion early in pregnancy was legal in most states.
The leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, which would overturn Roe, offers a very different history. The 98-page draft, written by Justice Samuel A. Alito Jr., asserts that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Roe, Justice Alito writes, “either ignored or misstated this history.” And “it is therefore important,” he continues, “to set the record straight.”
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Justice Alito’s Invisible Women
Alito would erase the right to abortion without acknowledging the impact on women and on the constitutional understanding of sex equality.
Yes, the leak of the draft opinion that would overturn Roe v. Wade was a shock. And it was shocking to read Justice Samuel Alito’s airy dismissal of a decision the Supreme Court has reaffirmed numerous times in the past 49 years as “egregiously wrong from the start.” That was on Page 6 of the draft opinion that Politico published last Monday, and Justice Alito spent the next 61 pages explaining why, in his view and perhaps ultimately in the view of four other justices, the court needs to overturn Roe now.
But the real shock to me was not what those 67 pages contain — mostly warmed-over stock phrases from the anti-abortion playbook that read like a law clerk’s cut-and-paste job — but rather who is missing: women.
Women were largely absent from Roe v. Wade too. While Roe exists in the culture as some kind of feminist screed about the right to abortion, it was anything but that. If people set preconceptions aside and actually read Justice Harry Blackmun’s opinion, they would see that Roe was really a decision about the right of doctors to exercise their judgment about a patient’s best interest without risking prosecution and prison. How else to interpret this summary sentence from near the end of the opinion? “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.”
Women at best had a walk-on role in Roe v. Wade, but at least Justice Blackmun and the six other members of his majority had an excuse. When it came to the rights of women, the justices had very little to draw on. The court had yet to build a jurisprudence of sex equality; that came later, in the series of cases that the young Ruth Bader Ginsburg would argue during the remainder of the 1970s.
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On Roe, Alito Cites a Judge Who Treated Women as Witches and Property
Sir Matthew Hale, a 17th-century jurist, has been endlessly quoted by American judges and lawyers, with awful repercussions for women.
In his recently leaked draft majority opinion overturning Roe v. Wade, Supreme Court Justice Samuel A. Alito Jr. presents what he sees as his most convincing arguments for permitting legislatures to ban abortion. So what is the best Alito can do? One of his prominent strategies is to repeatedly quote and discuss someone he describes as a “great” and “eminent” legal authority, Sir Matthew Hale.
Most Americans have probably never heard of Hale, an English judge and lawyer who lived from 1609 to 1676. Hale was on the bench so long ago that his judgeship included presiding over a witchcraft trial where he sentenced two “witches” to death.
Nonetheless, we are still living in the world that Hale helped create. And as that witchcraft trial suggests, Hale’s influence has not been a “great” development if you believe women have equal humanity with men.
Hale is best known for his “History of the Pleas of the Crown,” a treatise published posthumously in 1736 that became wildly popular with judges and lawyers in England and America. In my years studying women’s legal history, I have read hundreds of American judicial opinions quoting Hale’s treatise.
Hale was not writing for women, who were excluded from the legal profession and judiciary. But he had much to say about women. For example, his pronouncements on rape were bedrocks of American law for generations, and their influence persists.
Hale believed that authorities should distrust women who reported having been raped. In his mind, rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers endlessly quoted Hale’s canard well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment.
Hale also wrote what became the most frequently cited defense of the marital rape exemption, the doctrine that shielded a husband from prosecution if he raped his wife. Hale explained that a woman’s agreement to marry meant that she had placed her body under her husband’s permanent dominion. In Hale’s words: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
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Originalists are Misreading the Constitution’s Silence on Abortion
The originalist case for lifting abortion restrictions.
The law and courts were indeed largely quiet on the subject of abortion when the Constitution was written in 1787. But one of its drafters left a record of what he intended by that silence: A historians’ amicus brief in Dobbs points out that, following the common law, he believed abortion was not the business of courts or lawmakers. The procedure, usually accomplished with herbs, was widely described by 18th-century authorities on English common law as perfectly all right before quickening, or before the pregnant person felt movement in the womb, which can happen as late as 25 weeks.
James Wilson, who wrote the Constitution’s preamble, weighed in on the subject of abortion law in a 1790 lecture. Quoting William Blackstone, a preeminent authority on English common law, Wilson told his audience: “In the contemplation of law, life begins when the infant is first able to stir in the womb.” Abortion, in Wilson’s view, could not be regulated by law before that time.
In the early republic, Blackstone’s interpretation of English common law with respect to abortion was repeatedly affirmed by U.S. courts. For example, in 1845 the Massachusetts Supreme Judicial Court found that, “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.”
New Jersey’s Supreme Court found in the 1849 case, State v. Cooper, that “to cause or procure abortion before the child is quick, is not a criminal offence at common law, and has never been made so by statute in New Jersey.” As long as the mother consented to the abortion, it was unregulated and legal. If the pregnant woman did not consent, Chief Justice Henry W. Green said, then the act was illegal, because it was a poisoning or assault on the mother — but not on the fetus, which had no autonomous legal existence.
Green went on to make a distinction between life as a medical matter and as legal matter: “It is not material whether, speaking with physiological accuracy, life may be said to commence at the moment of quickening, or at the moment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it firstreceived it.” No medical or philosophical concerns could change the fundamental nature of abortion before the pregnant woman felt the fetus move, according to Green. Abortion in early pregnancy was, and always had been, legal.
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The Anti-Abortion Movement’s Powerful Use of Language Paid Off
Nearing an antiabortion victory five decades in the making.
The antiabortion movement has almost won its holy grail. The leaked draft opinion by Justice Samuel A. Alito Jr. reported by Politico on Monday indicates that the Supreme Court is ready is overturn nearly 50 years of precedent and find that there is no constitutional right to an abortion.
Unless a justice in the majority changes his or her mind before the court finalizes the decision, the ruling would signal that the antiabortion movement has changed the tides of history. This success is the product of powerful conservative coalitions but, crucially, the antiabortion movement has successfully co-opted and reworked leftist rhetoric about rights.
As state legislatures in the late 1960s began to liberalize their abortion laws, the emerging antiabortion movement faced serious cultural and political obstacles. Many Americans were skeptical of religious movements imposing their will on others. They also confronted a rising feminist movement arguing that women were an oppressed class. Women’s inability to control their reproduction meant they could not be full citizens.
Recognizing the power of these claims, the nascent antiabortion movement rejected the open crusade to regulate women’s sexuality embraced by the anti-birth-control movement of the early 1960s. While anti-birth-control forces asserted that states should punish promiscuity and the women who enjoyed it, antiabortion activists understood that this explicit sexism and religiosity would no longer sell.
But the new language pioneered by the ascendant rights movements of the decade — especially the civil rights movement — offered a solution to this problem. These movements made Americans familiar with claims about the need for new laws to protect the rights of minority groups. As historian Sara Dubow and others have shown, antiabortion activists adopted this language, developing secular arguments centered on the civil rights of fetuses.
This formulation allowed them, for example, to compare abortion to slavery and the Holocaust. All three devalued or eradicated human life, they claimed. But abortion was the worst of the three, according to antiabortion activists. The growing number of abortions would eventually outpace the number of people murdered during the Holocaust or killed in the Civil War. It was also worse because the fetus was the ultimate innocent victim. One activist wrote to his Utah legislator in 1973: “As far as I [am] concerned [Roe v. Wade] is far more tragic than anything Hitler ever did, at least his victims weren’t completely helpless and could fight to a degree for themselves.”
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What Justice Kavanaugh Gets Wrong About Abortion and Neutrality
Calls for the court to remain neutral have long been tools for denying Americans rights.
During oral arguments in Jackson Women’s Health Organization v. Dobbs, the potentially historic abortion rights case the Supreme Court is now considering, Justice Brett M. Kavanaugh took pains to assert that the court should not take sides. He touted this view as if it were a moderate middle ground, claiming that because the Constitution is “neither pro-choice nor pro-life” the court’s role is to “be scrupulously neutral on the question” and “leave it to the states.”
Yet Kavanaugh seemed not to recognize that this position — that the court should stay “neutral” on an issue of equality and liberty — has a long, sordid history. The court, in fact, has rejected this claim in some of its most celebrated rulings. Kavanaugh himself touted these very decisions during the same oral argument as examples of the Supreme Court correctly overruling faulty precedents. But he ignored that these landmark decisions were only possible because the court rejected Kavanaugh’s claim that denying constitutional rights amounts to neutrality. Rather, this faux “neutrality” argument, renounced repeatedly by the court, has long been associated with the likes of segregationists and gay rights deniers.
The text of the Fourteenth Amendment is not neutral about individual rights. Instead, it explicitly protects people’s liberty and protects it equally for all people, including women and people of color. The court has relied on these principles of equal liberty for decades to prevent states from, for example, restricting access to contraception and banning interracial marriage.
In fact, the argument that the Constitution is “neutral” on questions about individual liberty and equality and that these matters should be left to the states traces back to proslavery arguments during the Civil War. After the passage of the Thirteenth, Fourteenth and Fifteenth Amendments in the years following the Civil War, pro-segregation advocates and others looking to deny fundamental rights adopted this line of reasoning as a way around the Fourteenth Amendment’s promises.
In Plessy v. Ferguson, the infamous 1896 decision upholding “separate but equal” in public spaces, without using the word explicitly, the justices adopted this “neutrality” reasoning. Some states required segregation, other states didn’t practice it, while the court remained neutral on the issue.
Segregationists wanted the court to reaffirm this posture in the pioneering Brown v. Board of Education decision. At oral argument in 1952, John Davis, the lawyer for South Carolina, quoted to the justices from Judge John Parker’s opinion in the lower court, saying that “this is a matter for the legislatures and not the courts.” He further quoted Judge Parker, saying that because “the questions thus presented are not questions of constitutional right,” the members of the court have “no more right to read their ideas of sociology” and race relations into the Constitution than they do on any other topic.
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How Did Roe Fall? Before a Decisive Ruling, a Powerful Red Wave.
The downfall of the constitutional right to abortion began 12 years ago, after Republicans swept state house elections and passed hundreds of restrictions.
The beginning of the end of Roe v. Wade arrived on election night in November 2010.
That night, control of state houses across the country flipped from Democrat to Republican, almost to the number: Democrats had controlled 27 state legislatures going in and ended up with 16; Republicans started with 14 and ended up controlling 25. Republicans swept not only the South but Democratic strongholds in the Midwest, picking up more seats nationwide than either party had in four decades. By the time the votes had been counted, they held their biggest margin since the Great Depression.
There had been a time, in the 15 years after Roe, when Republicans were as likely as Democrats to support an absolute right to legal abortion, and sometimes even more so. But 2010 swept in a different breed of Republican, powered by Tea Party supporters, that locked in a new conservatism. While Tea Party-backed candidates had campaigned on fiscal discipline and promised indifference to social issues, once in office they found it difficult to cut state budgets. And a well-established network was waiting with model anti-abortion laws.
In legislative sessions starting the following January, Republican-led states passed a record number of restrictions: 92, or nearly three times as many as the previous high, set in 2005.
The three years following the 2010 elections would result in 205 anti-abortion laws across the country, more than in the entire previous decade.
“A watershed year in the defense of life,” Charmaine Yoest, at the time president of the anti-abortion group Americans United for Life, proclaimed when the sessions were over, noting that 70 of the laws — restrictions on abortion pills and hurdles for women getting abortions and clinics providing them — had adopted the group’s model legislation. “And that is just the beginning.”
“It was a massacre,” said Beth Shipp, then the political director of NARAL Pro-Choice America, which had been founded before Roe to push for abortion rights.
In the fraught and much disputed language of pregnancy, the elections of 2010 were the quickening of the anti-abortion movement. The movement started out weak but gained power in the new red wave. Abortion rights groups, meanwhile, were weakened in the states. The ensuing debates in state legislatures pointed toward the polarization that would divide the country over the coronavirus pandemic and the presidential election 10 years later: gerrymandered control and party-line votes, and the two sides increasingly operating under a different definition of the facts. And as legislatures continued to layer restrictions upon restrictions, anti-abortion groups could argue to the court what Jeanne Mancini, the president of the March for Life, proclaimed to crowds in Washington this year: “Roe is not settled law.”
The momentum that started in 2010 led to the Supreme Court overturning Roe on Friday, even though polls show that a vast majority of Americans supported it, and that most now believe abortion is morally acceptable. The court’s decision lamented that Roe had “sparked a national controversy that has embittered our popular culture for a half century.” In fact, that controversy started not so much with Roe but in state houses, and raged hottest over the last decade.
“Women are asking me all the time — what happened? They have no understanding of how this could be,” said Cecile Richards, who was president of Planned Parenthood from 2005 to 2018. “What’s happened is not about religion, or morality or unborn babies. It’s about politics. Women can’t wrap their brains around it. Republicans want to pretend it’s about something else. But it’s about control — that’s what politics is about.”
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Abortion Is About Freedom, Not Just Privacy
The right to abortion is an affirmation that women and girls have the right to control their own destiny.
A few months before my seventeenth birthday, my mother bought me a subscription to Seventeen magazine. It seemed an odd choice, given its conventional makeup ads and utterly normative portraits of white girls. I was in the midst of coming out as a lesbian and found the whole thing jarring. But, in the mix of ads and grooming tips, there were articles that captured my attention, including one about the erosion of rights for teen-agers. A small sidebar noted, as an example, that teen-agers were required to get parental consent before receiving an abortion. The issue struck me viscerally. I had been fighting constantly with my father and stepmother about curfews, smoking, and the socialists I was hanging out with. The idea that they might decide whether or not I had a baby was enraging, obliterating any notion of self-determination.
I had never thought much about abortion before, but I had thought often about pregnancy; my mother had said, almost in a whisper, that her grandmother had told her that, as soon as girls have their periods, they can’t let boys touch them. In Texas, where I had spent junior high, everyone knew that when some girls suddenly disappeared from school they were probably pregnant. During my freshman year of high school, a friend wore a coat every day until she, too, eventually disappeared. She had hidden her pregnancy for months before finally delivering a baby. It seemed to be only women and girls who suffered any consequence for pregnancy. Girls, not boys, disappeared from school. Girls, not boys, carried the weight of social stigma. Girls, not boys, had their entire lives turned upside down if they carried the pregnancy to term. It was terrifying; it was also radicalizing.
On those mornings in Buffalo, anti-abortion protesters trickled out of their cars wielding their grotesque signs. The protesters—white men accompanied by women and, in some cases, even children—yelled at patients who showed up for their appointments, saying that they were killing their babies. We chanted back, “Pro-Life, your name’s a lie, you don’t care if women die.” The clinic defenders, as we counter-protesters called ourselves, were a combination of campus activists, socialists, lesbians, and feminists—a motley crew of the Buffalo left. We had some inevitable tension with the owners of the clinic, who worried that our counter-protests might alienate patients, too. But, as the right escalated its tactics to shut clinics down, we came to feel that we were keeping the clinics open and allowing women to exercise a constitutional right.
The Supreme Court’s decision to overturn Roe v. Wade has brought old feelings of astonishment and disgust back to the surface. The Court’s utter disregard for the rights of women and of trans and nonbinary people who have the capacity to become pregnant is shocking in the twenty-first century. In the text of the majority opinion—as, indeed, in the original 1973 Roe opinion—the rights of women as full citizens hardly seem to register.
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Abortion and Partisan Entrenchment
The modern Republican Party has tied itself to Roe v. Wade. With the Supreme Court’s decision in Dobbs, the party is vulnerable to new issues.
In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party’s commitments of ideology and interest.
Over time, partisan entrenchment by both parties can keep the Supreme Court’s ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court’s current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.
Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe’s demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.
Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among the Court’s conservative majority.
Moreover, Roe’s demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review–that is the point of partisan entrenchment–but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.
Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party’s most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.
Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.
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How Do You Tell the Story of Roe v. Wade?
A new exhibition at Harvard’s Schlesinger Library looks at how the 1973 Supreme Court decision reshaped American culture and politics.
In the corner of a ground-floor gallery at Harvard’s Schlesinger Library on the History of Women in America sits a small plexiglass case, holding two cowboy hats.
One was the signature headgear of Flo Kennedy, the firebrand feminist lawyer and activist. The other belonged to Mildred Jefferson, a onetime president of the National Right to Life Committee.
One is brown suede, the other is white straw — a color contrast that might seem to symbolize the stark polarities of the abortion debate.
But “The Age of Roe,” a new exhibition here, aims to break down any simple understanding of how the Supreme Court’s 1973 decision in Roe v. Wade has shaped America.
The show, in the works since 2020, was originally going to be called “Roe at 50.” But then the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in June struck down the constitutional right to abortion, and Roe was dead at 49.
“It was a weird time to be curating an exhibit,” Mary Ziegler, the exhibition curator, said in a telephone interview. “Since Dobbs — and I include myself here — it’s been a very emotional time. There’s been a lot of heat, and not a lot of light.”
Dobbs, Ziegler said, didn’t materially change much about the exhibition, beyond the title. And that title is meant to raise a question.
“Have we entered a new era, or not?” she said. “And if we have, what do we make of the old one?”
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Even if Republicans Outlaw Abortion, Americans Will Soon Rebel
Prohibition couldn’t even last 14 years. Will an abortion ban last that long?
A movement that seeks to compel Americans to live according to a stringent moral code may be most vulnerable when it succeeds.
For more than half a century, anti-abortion activists, most of whom were or are either conservative Catholics or evangelical Protestants, lobbied state legislatures and Congress, held prayer vigils and mass demonstrations, and recruited a dedicated regiment of lawyers and judges to advance their cause. “This is a great day for preborn children and their mothers,” declared the National Right to Life Committee in June after the Supreme Court overturned Roe v. Wade, hailing “the work of millions” of citizens who carried its message “into every nook, cranny and corner of America for decades.”
Now that movement has a new and more difficult task: to press its allies in state governments and the courts to enact and enforce new abortion restrictions and to persuade the public to accept the criminalization of what a majority of Americans have long said should be legal.
A century ago, another mass movement, also driven by religious zeal, faced a similar challenge — and utterly failed to overcome it. In 1919, the amendment to prohibit the sale and manufacture of alcohol became part of the Constitution.
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Overturning Roe Could Threaten Rights Conservatives Hold Dear
Parental rights stem from the same liberty that the Supreme Court just began rolling back.
Conservatives are celebrating the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization as a legal victory that protects the rights of the unborn child. But the decision could have unforeseen implications for political causes that conservatives hold dear, especially parental rights. Dobbs reversed the seminal decision in Roe v. Wade (1973), which was based on two early 20th-century Supreme Court decisions that found that the 14th Amendment protected fundamental civil liberties, namely the rights of parents to raise their children as they see fit.
While many commentators have focused on the danger posed by Justice Samuel A. Alito Jr.’s reasoning in Dobbs to other fundamental liberties protected by Supreme Court decisions based on Roe, such as same-sex marriage, the implications of the decision for parental rights have received little attention. But they should.
The court’s decision in Dobbs begins the process of rolling back the 14th Amendment’s protections for civil liberties, which may eventually threaten the Supreme Court decisions in Meyer v. Nebraska(1923) and Pierce v. Society of Sisters(1925). The circumstances that led to Meyer and Pierce, where sweeping laws passed by democratic majorities threatened the ability of minorities to make decisions about their family life, also foreshadow the risks of a post-Dobbs world.
In the early 20th century, a powerful Progressive movement argued that the fundamental rights of defenseless children superseded the rights of parents — and that the state had a duty to protect and promote them. This push included important campaigns to protect children from the burdens of industrial labor, promote children’s health and secure the right of all children to an education. There was always an undercurrent of nativism in these movements. Reformers who championed child labor laws and compulsory schooling were particularly concerned about the large numbers of poor immigrants who entered the United States at the turn of the century, who often allowed their children to work or refused to “Americanize” them in public schools.
Amid the rising popularity of eugenics and “race science,” the nativist impulses in the movement for children’s rights reached a fever pitch during and after World War I. The anti-German sentiment lingering from the war drove the Nebraska legislature to require that all children be schooled in English. In Oregon, during a brief surge of Ku Klux Klan power, citizens took advantage of an initiative referendum process to put a measure on the ballot that required all children to be educated in public school. An overwhelming majority of voters supported the measure, which promised, in effect, to ban private and religious schooling.
These laws produced the court challenges that the Supreme Court ruled on in Meyer and Pierce.
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Collected and curated by Bunk History
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