Dobbs v. Jackson, One Year Later
An Abortion Historian’s View from 2023
Most historians of abortion were likely not surprised by last year’s US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned the right to abortion established in Roe v. Wade (1973). Dobbs has become a bellwether for other, related efforts to contract civil liberties, efforts that stem from movements contemptuous of the rights of millions of Americans, especially women, LGBTQ+ people, and people of color. The activism of the past can help us to understand how we might respond in the present.
The right to abortion began to narrow almost as soon as the ink had dried on Roe. In 1976, Congress passed the Hyde Amendment, which prohibited the federal government from subsidizing abortion in most circumstances. When it took effect in 1980, Hyde effectively limited the abortion right to those who could afford it without assistance from programs like Medicaid. Several states also prohibited private insurers from covering abortion care, leaving many people to pay out-of-pocket.
Abortion access became more elusive after the US Supreme Court’s 1992 decision in Planned Parenthood v. Casey, in which the court reasoned that state laws and regulations that did not unduly burden women seeking abortions were constitutional. For the next three decades, states enacted thousands of abortion laws and regulations, many of which purported to protect women’s health. These laws ranged from requiring physicians to read untrue statements about the medical risks of abortion to mandating expensive building design requirements more appropriate for multispecialty surgical clinics. In practice, these requirements humiliated, exhausted, and bankrupted patients and clinic owners, providers, and staff and made pregnant women more vulnerable to physical harm. Courts nearly always ruled that these onerous laws and regulations did not unduly burden women. Poor people, people of color, and those who lived in rural communities were—and remain—disproportionately harmed by antiabortion laws and regulations.
As these legal developments suggest, the issue of abortion has long served as a litmus test for key judicial and administrative appointments. The 1980 Republican Party adopted a platform affirming its opposition to abortion and four years later the GOP promised to nominate Supreme Court justices who oppose abortion. Democrats followed suit, committing to protect abortion rights. When he ran for president in 2016, Donald J. Trump promised to nominate “pro-life” judges to the bench. Once Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney-Barrett were seated, the table was set to formally overturn Roe v. Wade.
In the year since Dobbs was decided, echoes of the past ring loudly.
In the year since Dobbs was decided, echoes of the past ring loudly, with the return of pre-Roe strictures that make pregnant people suffer needlessly once again. Between the late 1860s and the late 1960s, when abortion became a crime in every state, thousands of otherwise-healthy women died in their search for an abortion. Many more continued with pregnancies that they did not want or could not afford. Yet, in the 49-year period when abortion was a federally protected right under Roe, the United States didn’t make it much easier to be pregnant or to raise children by extending meaningful commitments to pregnant people, working parents, or children.
Now that Roe has been overturned, states that prohibit or severely restrict abortion are among the least likely to offer employment, healthcare, or welfare benefits that help women to survive pregnancy and their children to thrive. In states that have recriminalized abortion, attorneys, wary of vaguely written abortion bans, have warned physicians not to perform legal, medically necessary abortions in order to shield hospitals from legal jeopardy. In Louisiana, a woman whose fetus was missing the top of its skull (a rare, fatal condition called acrania) was denied an abortion because state authorities had not included acrania in a list conditions that are exempt from the state’s abortion ban. Louisiana subsequently added acrania to the list of exemptions, but not before the pregnant person had to travel out-of-state to obtain the abortion.
The return of stringent abortion laws is part of a small but powerful movement designed to contract ways of being by criminalizing behaviors, speech, and identities. We are witnessing a dizzying number of efforts to shame, terrorize, and attack related and intersecting categories of people including women, LGBTQ+ people, and people of color. These movements to reduce possibilities for expression and bodily control are gendered. Professions dominated by women are under attack, including librarianship (with book bans) and pediatrics (with bans on gender-affirming healthcare). Many states have passed “divisive concepts” legislation in an effort to prevent students from learning about the histories of racism and sexism. Contingent faculty (in which women are overrepresented) are especially vulnerable to losing their jobs if they violate these laws.
A small but powerful movement has organized to contract ways of being by criminalizing behaviors, speech, and identities.
Learning about resistance in the past—often through the histories of race and gender—offers insights for navigating contemporary attacks on speech, thought, and identity. When abortion was criminalized, thousands of physicians risked their careers—and prison time—to offer women safety and dignity as they sought to end pregnancies. Young Jewish immigrants working in dangerous garment factories, themselves vulnerable to charges of incitement and disloyalty, nevertheless challenged suffragists to articulate a vision of citizenship that recognized the value of women’s labor. Black women throughout the South, well aware that they were unlikely to receive justice through the courts, nevertheless pursued charges against white men who terrorized them throughout the 20th century. Historians’ work of identifying brave resisters and the conditions that make inequality possible continues.
Historians and history-minded academics and journalists have offered critical insights for understanding why laws and regulations designed to protect equality and speech are under attack. By identifying how gerrymandering has reduced the electoral power of people of color, tracing the sources and influence of dark money, and analyzing social and economic barriers to gender equality, historians help us to understand why these powerful far-right efforts are sometimes out-of-sync with public opinion, but also why they target select groups with special zeal. As campaigns designed to constrain our ability to speak honestly about the past and make decisions about our healthcare intensify, we must continue the work that we have been trained to do. There is power in naming the enablers and sharing the stories of the brave resisters among us.
Karissa Haugeberg is an associate professor and director of undergraduate studies in the history department at Tulane University. She tweets @shesareader1.
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