The 40th Anniversary of Roe v. Wade: A Teachable Moment
Linda K. Kerber, October 2012
Nearly 40 years ago, on January 22, 1973, the U.S. Supreme Court handed down a decision that turned out to be one of the most contentious in its history. Two plaintiffs whose names were changed to protect their privacy—"Roe" from Texas and "Doe" from Georgia—claimed that laws making abortion illegal undermined their own right to make medical choices for themselves and their physicians' right to practice medicine according to their best judgment. Less than a decade before, abortion had been illegal in every state, with very narrow exceptions—to save the life of the mother; or, occasionally, in cases of rape or incest. At the time of the decision, a small handful of states had reformed abortion law by widening the exemptions to include saving the mother's physical and mental health. The court's opinion, written by Justice Harry Blackmun, with two dissents by Justices Byron White and William Rehnquist (who characterized the desire for abortion by a healthy woman as a matter of her "convenience") recognized that the long-established right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
In the years since 1973, scholars have written fresh histories of reproductive rights in the United States, placing Roe v. Wade in deep political and social context. These histories recognize its link to the history of birth control and to the U.S. Supreme Court's decisions in Griswold v. Connecticut 381 U.S. 479 (1965) and Eisenstadt v. Baird 405 U.S. 438 (1972), which treated as private decisions the use of birth control, first by married couples and, a full seven years later, by unmarried couples. Many of these books are already understood to be classics: James C. Mohr, Abortion in America : The Origins and Evolution of National Policy, 1800–1900 ( New York: Oxford Univ. Press, 1978), Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: Univ. of California Press, 1984); Linda Gordon, Woman's Body, Woman's Right: Birth Control in America (New York: Penguin Books, 1990), and the revised and expanded version, The Moral Property of Women: A History of Birth Control Politics in America, (Urbana: Univ. of Illinois Press, 2002); Andrea Tone, Devices and Desires: A History of Contraception in America (New York: Hill & Wang, 2001).
Chapter 4 of Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey (New York: Times Books, 2005) traces Justice Blackmun's thinking as he wrote the Supreme Court opinion. Faye Ginsburg's Contested Lives: The Abortion Debate in an American Community (Berkeley: Univ. of California Press, 1998) follows the impact of Roe into Fargo, North Dakota. Johanna Schoen's Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare (Chapel Hill: Univ. of North Carolina Press, 2005) places abortion in the general history of reproduction. Beth Bailey, Sex in the Heartland (Cambridge, MA: Harvard University Press, 1999), Sandra Morgen, Into Our Own Hands: The Women's Health Movement in the United States, 1969–1990 (New Brunswick: Rutgers Univ. Press, 2002), and Elaine Tyler May's America and the Pill: A History of Promise, Peril, and Liberation, published on its 50th anniversary (New York: Basic Books, 2010), place the subject of abortion in the context of women's recent medical history.
Among the recent books that make it clear that access to, and indeed, the meaning, of abortion has differed greatly for women of differing races, ethnicities, class position, and age are Jennifer Nelson, Women of Color and the Reproductive Rights Movement (New York: New York University Press, 2003) and Iris Ofelia Lopez, Matters of Choice: Puerto Rican Women's Struggle for Reproductive Freedom (New Brunswick: Rutgers University Press, 2009).
Now, on the eve of Roe's 40th anniversary, abortion reform has been radically unsettled; women's right to make the abortion decision sharply curtailed. In writing the majority decision in Roe, Justice Blackmun said "this right is not unqualified and must be considered against important state interests in regulation." The state, he went on to say, has a "legitimate interest in protecting the health of the pregnant woman . . . and it has still another important and legitimate interest in protecting the potentiality of human life." Opponents of abortion reform have worked, with much success, to expand what can be understood as the state's "legitimate interest ... in regulation." Women who need access to a constitutionally protected medical procedure now face, in state after state, mandatory waiting periods that increase the physical dangers of the procedure; parental consent or notification requirements that constrain young women who have reason to fear their own parents, especially women who are victims of incest; mandatory preabortion sonograms accompanied by "counseling" by medical staff who are required to describe the fetus as a "baby." In 2011, the Republican majority in the House of Representatives sought to disqualify Planned Parenthood for federal support, even though the organization does not use federal money to support its abortion programs; that effort has been echoed in other states, most recently in North Carolina. In July 2012 Arizona became the 10th state to ban abortions starting at 20 weeks— rather than the current ban at viability, which is about 24 weeks.1 As I write, Todd Akin, the Republican member of Congress from Missouri, remains in the running for the U.S. Senate despite his pronouncement that an exemption for rape is unnecessary because "if it's a legitimate rape, the female body has ways to try to shut that whole thing down"—an oxymoron yoked to a fantasy.
Every state—and indeed every locality—has its own history of abortion: every state and every locality is less than a half-century removed from a time when abortion was illegal everywhere. What it meant to live in a time evoked by the title of Leslie Reagan's now classic When Abortion Was a Crime: Women, Medicine, and the Law in the United States 1867–1973 (Berkeley: Univ. of California Press, 1997) is important to know. For abortion as a public health problem before Roe, Mary Steichen Calderone, Abortion in the United States (New York: P. B. Hoeber, 1958; at that time Calderone was medical director of Planned Parenthood); Patricia G. Miller, The Worst of Times (New York: Harper Collins, 1993); Rickie Solinger, The Abortionist: A Woman Against the Law (New York: Free Press, 1994); Ann Fessler, The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade (New York: Penguin Press, 2006). Laura Kaplan, The Story of Jane: The Legendary Underground Abortion Service (Chicago: Univ. of Chicago Press, 1997) is a riveting account of young women who undertook to offer safe abortions to women in Chicago and many who came there from neighboring states.
As Linda Greenhouse and Reva Siegel observe in their remarkable documentary history, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling, "the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it." The court decided the constitutionality of a Texas law, but "the legal pipeline was rapidly filling up with challenges to abortion laws from around the country." Roe made these challenges unnecessary, but when those files were discarded or locked in archival cases, with them went evidence of lived experience. Greenhouse and Siegel's book offers a history of the struggle for abortion reform in national context and also tightly focused histories and documents from the legislative and court battles in New York and Connecticut. It includes a fine bibliography that lists documents by opponents as well as supporters of abortion reform. Greenhouse and Siegel have already revised their book to account for recent developments, and include in the second edition an extended essay analyzing the sources and reflecting on the dynamics of the conflict. They have made this updated version freely available, placing it in Google Books with free "full view" and as a free, downloadable PDF file (as well as in other formats) on the web site of the Yale Law School library at http://documents.law.yale.edu/before-roe.2
Greenhouse and Siegel answer some, but not all, of the questions I set out in the sidebar. But every locality, even in New York and Connecticut, has its own unwritten history—not only for the years before the Roe decision, but for the years afterwards.
Here is where our students—undergraduate and graduate—can make a real difference by their research. Working with advisers and archivists, they can frame questions, and they can seek to reconstruct a history that is in grave danger of being lost. The answers they find can contribute to the accumulation of necessary knowledge (see sidebar for some sample questions); their research, and our own, is indispensable.
Activists in the 1960s—on both sides of the debate—are now in their 70s and 80s; activists of the 1950s are in their 90s. The time available to us is short. Most have never been interviewed; many are hungry to place their experience on the historical record. Some have the records of the small groups of which they were a part and do not know that they may be welcomed by historical societies and college and university based archives. Local newspapers—many now digitized—can be searched.
The papers of some state legislators have been archived; often they are filed by topic, which makes it easy to search for "Abortion." Many of these collections include letters from constituents on both sides of the question, urging action on one side or the other with evidence from their own experience. Some of these letters are heartbreaking; all are interesting. (Archivists will generally ask researchers to sign an agreement not to publish the names of the authors.) Catholic bishops were early to organize challenges to abortion reform; clergy of other denominations formed the Clergy Consultation Service on Abortion. Its members were ministers and rabbis who were prepared to identify safe (though illegal) providers to women who sought abortions.3 Although the CCS originated in New York City, chapters flourished throughout the country; identifying participants in your town or county or state—and interviewing them about their memories of their work—could be significant contributions to recapturing the history of the fight over abortion reform. The role of Catholic clergy and of nuns in our towns and counties deserves its own history. Melody Rose, Safe, Legal, and Unavailable? Abortion Politics in the United States (Washington D.C.: Congressional Quarterly Press, 2007) is a good place to begin studying post-Roe developments. Linda Greenhouse and Reva Siegel warn that partisan alignments after Roe took longer to develop than many appreciate, and have been embedded in the large national agendas of political parties.4
Many of us have already had the experience of how energized we and our students become when their work can clearly be seen to have value outside the boundaries of the course. Roe's 40th anniversary is both a warning of rapidly fading memories and an opportunity to capture a history that still shapes American lives and politics.
Questions That Need Answers
Do you know when the last abortion provider was found guilty of crime in your state? (In my own state, Iowa, it was Dr. J. A. Snyder, convicted in 1953.) Do you know when the first family planning clinic was established in your state? In your county? Who were involved in establishing it? Did they face any opposition?
Do you know if abortion reform was established—and on what terms—in your state before January, 1973? Do you know whether your state legislature debated abortion reform, and for how many sessions? Do you know how many deaths in your county were ascribed to botched illegal abortions in the decade before abortion became legal in your state?
Do you know who introduced bills for abortion reform into your state legislature and in what year? Do you know to what party the initiators belonged? [It surprises most of my students to discover that most were Republicans.] Are any of those legislators still alive? Can they be interviewed? Do you know when your own college's student health service first prescribed birth control? Do you know many women students in your own college or university died from illegal abortions in—pick a decade, any decade— before 1973? Does your college know?
Linda K. Kerber is the May Brodbeck Professor in the Liberal Arts and professor of history emerita, and lecturer in law at the University of Iowa. She is the author or editor of several books, including No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship. She was president of the AHA for 2006.
1. The U.S. 9th Circuit Court of Appeals quickly issued a stay while a challenge to the law is being decided. A good summary of the national situat ion as of last year—with an instructive map and graph— is Dorothy Samuels, "Where Abortion Rights Are Disappearing," New York Times, September 24, 2011.
2. This revised second edition can also be accessed at the Science Research Network web site at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2131505. The Yale Law School library web page at http://documents.law.yale.edu/before-roe provides links to a downloadable PDF of the book, as well as MOBI format for Kindle and EPUB for non-Kindle electronic readers. The book is available in Google Books with free "full view" at http://goo.gl/srgXz. The first edition of the book was published in 2010 by Kaplan Books. The revised and expanded second edition includes the authors' essay, "Before (and After) Roe v. Wade: New Questions about Backlash," Yale Law Journal 120 (June 2011), 2028–87.
4. See their essay, "Before (and After) Roe v. Wade: New Questions About Backlash," Yale Law Journal 120 (June 2011), 2028–87.