HLPR Blog: Notice and Comment

By Geoffrey R. Stone*

We are living in perilous times. As we contemplate the prospect of another appointment by Donald Trump to the Supreme Court of the United States, the stakes for our nation are extraordinarily high. Among the many issues at risk, perhaps the most important concerns the right of a woman to decide for herself whether or not to carry a pregnancy to term. Having recently marked the forty-fifth anniversary of the Court’s 1973 decision in Roe v. Wade – an anniversary that means a lot to me personally because I was a law clerk for Justice Brennan that year – we must now face the possibility that Roe might be overruled.

For the past four decades, Roe has been one of the most bitterly divisive issues in American politics. Opponents of Roe maintain that the Court invented a constitutional right out of whole cloth, without any legitimate justification. Supporters of Roe maintain that it was a perfectly sound decision that correctly recognized a fundamental constitutional right.

Whether one agrees or disagrees with Roe, contemporary understandings of the decision and of its historical origins are often confused and incomplete. The story of how we got to Roe, like the story of how we got to Brown v. Board of Education or how we got to Obergefell v. Hodges, is important to remember, for it gives both content and context to the debates of the present.

So, let us begin at the beginning.

At the time our Constitution was drafted, abortion was often relied upon by single and widowed women to avoid the consequences of illegitimate births. In that era, contrary to what many people today assume, abortion before quickening, that is, before the point at which the woman could feel movement – usually at around four-and-a-half months – was perfectly legal. Indeed, this had been the unbroken state of the law at least as far back as the ancient Greeks. Although the Church in the Middle Ages condemned abortion as a sin, the law did not treat abortion as a crime. To the contrary, those who did not share the faith were free to do as they wished.

Abortion was also common – and legal – in England in the years leading up to the American Revolution. As Lady Caroline Fox wrote her husband in the 1740s upon learning that she was pregnant for the third time in as many years: “I’m certainly breeding. I took a great deal of physic yesterday in hopes to send it away.” Soon thereafter she wrote her husband that she had been successful, noting “is not that clever?”  At this time, a wide variety of “female pills” were readily available in London shops for the purpose of inducing abortion.

The American colonies embraced the same approach to abortion as the English common law, and abortion before quickening was both common and legal. Moreover, even abortion after quickening was almost never punished. Over the course of the nineteenth century, abortion became ever more common. This was evident in the fact that the birth rate in the United States fell dramatically from 1800 to 1900. In the colonial era, the average family had nine children. By 1900, that number was only three.

The reason for this change was clear. In the agrarian world of the eighteenth century, children were an important economic asset; but by the end of the nineteenth century, with greater urbanization, children were increasingly seen as a financial burden that could cause a family’s economic ruin. Thus, for most families, birth control had become essential, and because contraception was generally unreliable, abortion was seen a critical way of managing family size.

Indeed, by the middle of the nineteenth century, approximately twenty percent of all pregnancies ended in abortion. At this time, abortifacients were readily available from mail-order firms and pharmacists; daily newspapers regularly ran ads for abortifacients; and those who provided abortion services did so quite openly.

The flamboyant Ann Lohman Restell of New York, for example, who was popularly known as “Madame Restell,” maintained a highly profitable abortion business serving a genteel, middle- and upper- class clientele. She touted her “celebrated powers for married ladies” and, like many of her competitors, she broadly advertised her services in the penny press of the day. To give you a sense of the times, here is an example of one her widely-distributed advertisements:

To married women: Is it but too well known that the families of the married often increase beyond what the happiness of those who give them birth would dictate?

In how many instances does the hard-working father, and more especially the mother, of a poor family remain slaves throughout their lives, urging at the oar of incessant labor, toiling to live, living but to toil. . . .

Is it desirable, then, . . . for parents to increase their families, regardless of consequences to themselves, or the well-being of their offspring, when a simple, easy, healthy, and certain remedy is within our control?

The general acceptance of abortion as an appropriate method of managing family size began to change, however, in the latter part of the nineteenth century. Two factors in particular contributed to this shift.

First, religious perspectives on abortion began to change during the evangelical explosion of the Second Great Awakening. The traditional Protestant conception of the fetus assumed that it was not alive until the point of quickening. Abandoning that view, evangelicals during the Second Great Awakening began for the first time to preach that a separate, distinct, and precious life came into being at the very moment of conception.

Second, medical professionals in this era increasingly came to the view, based partly on religion and partly on half-baked science, that human life begins at conception. A professor at the University of Pennsylvania Medical School, for example, published a pamphlet in which he confidently asserted that newly-conceived embryos could think and perceive right and wrong, and in the late 1850s the Boston doctor and religious moralist Horatio Storer initiated a concerted “Physicians Crusade Against Abortion.”

At this time there was a growing sense that women were evil temptresses who were driven by Eve-like impulses that would lead them to corrupt and to betray men. It was therefore necessary to eliminate abortion in order to keep them – and their desires – under control. Against this background, Storer decried the growing frequency of abortion and maintained that the primary cause of this phenomenon was the “general demoralization” of women and “wide-spread . . . ignorance of the true character” of abortion.

Storer insisted that many women who have an abortion die, either immediately or shortly thereafter, as a result of “moral shock from the very thought” of what they have done, while many others are driven to insanity. Storer charged that children born to a woman after she has had an abortion are often “deformed or diseased,” and that they too therefore bear the burden of their mother’s “heinous” act. Storer emphatically rejected the notion that a woman should decide this question for herself because, he explained, during pregnancy a “woman’s mind is prone to . . . derangement.”

As a result of Storer’s campaign, in 1859 the newly-founded American Medical Association adopted a resolution condemning abortion “at every stage of gestation,” except when necessary to save the life of the woman. Over the next several decades, the AMA, working hand-in-hand with religious moralists during the late nineteenth century’s “social purity” movement, launched an aggressive and successful campaign to rid the nation not only of abortion, but of contraception as well. As the leading voices of this movement explained, the sole purpose of women is to “produce children,” and women must therefore remain within their “God-given sphere.”

By the end of the nineteenth century, in a complete reversal of the world of the Framers, every state had enacted legislation prohibiting the distribution of any product designed for purposes of contraception, and every state had enacted legislation prohibiting abortion at any stage of pregnancy, unless a doctor certified that the abortion was necessary to save the life of the woman. Thus, for the first time in Western history, abortion was unlawful even before quickening, and women who sought abortions were now themselves subject to prosecution. Opponents of birth control insisted that the issue was simple: “If a woman didn’t want to get pregnant, then she shouldn’t do anything that might get her pregnant.” It was as simple as that.

But despite the threat of criminal sanctions, the medical profession’s often perverse warnings about the dangers of abortion, and the preaching of religious moralists, women in the late nineteenth century continued to seek abortions in record numbers. Indeed, by the turn of the twentieth century, approximately two million women had illegal abortions each year, and almost a third of all pregnancies ended in abortion. Now, though, for the first time in history, these abortions had to be performed illegally, in secret and unsafe circumstances, and by much less reliable practitioners than in the past.

By the 1960s, with improvements in contraception, which was now increasingly, but still not universally, legal, the number of unwanted pregnancies gradually declined. But even then, approximately one million women each year resorted to illegal abortions. The vast majority of these women turned either to self-induced abortion or to the dark and often forbidding world of “back-alley” abortions.

Women who resorted to self-induced abortion typically relied on such methods as throwing themselves down a flight of stairs, or ingesting, douching with, or inserting into themselves a chilling variety of chemicals and toxins ranging from bleach to turpentine to gunpowder. Knitting needles, crochet hooks, scissors, and coat hangers were among the tools most commonly used by women who attempted to self-abort. Approximately thirty percent of all illegal abortions at this time were self-induced.

Women who sought abortions from “back-alley” abortionists encountered similar horrors. To find someone to perform an illegal abortion, women often had to rely on tips from elevator operators, taxi cab drivers, salesmen, and the like. Because of the clandestine nature of illegal abortions, the very process of finding an abortionist was dangerous and terrifying. Women who sought “back-alley” abortions were often blindfolded, driven to remote areas, and passed off to people they did not know and could not even see during the entire process.

Such abortions were performed not only in secret offices and hotel rooms, but also in dank bathrooms, in the backseats of cars, and, literally, in “back alleys.” The vast majority of these abortions were performed either by persons with limited medical training or by rank amateurs, including elevator operators, prostitutes, barbers, and unskilled laborers.

In the 1960s, an average of more than two hundred women died each year as a result of botched illegal abortions. In addition to those who died in the course of illegal abortions, many thousands more suffered serious illness or injury. At this time, though, the often horrendous experiences of these women remained in darkness, because having an abortion was deemed both criminal and shameful. A woman who had abortion would either tell no one, or at most tell only a close friend of family member. As a result, the nightmare world of illegal abortion was almost completely invisible to the vast majority of Americans.

The stories of abortions that did come to light usually did so only because they ended in tragedy. One woman recalled, for example, how a fellow college student who had had an illegal abortion was too frightened to tell anyone what she had done. She locked herself in the bathroom in her dorm and quietly bled to death.

In another incident, 28-year-old Geraldine Santoro bled to death on the floor of a Connecticut hotel room after she and her former lover attempted an abortion on their own. The former lover, who had no medical experience, used a textbook and some borrowed tools. When things went terribly wrong, he fled the scene, and Santoro died alone.

The occasional visibility of such incidents led some religious organizations that had previously been silent on abortion to address the issue more directly. Protestant churches varied in their opinions. The United Methodist Church, for example, acknowledged “the sanctity of unborn human life,” but nonetheless proclaimed that, because “we are equally bound to respect the sacredness of the life and well-being of the woman, for whom devastating damage may result from an unacceptable pregnancy,” we “support the removal of abortion from the criminal code.”  Similarly, in 1968, the American Baptist Convention came to the conclusion that abortion should be a matter of “responsible personal decision.”

The Catholic Church, on the other hand, insisted that abortion was always and unequivocally forbidden, even when necessary to save the life of the woman. This led the politics of abortion to play out in interesting ways. Because Catholics had traditionally identified with the Democratic Party, and because Catholics were more likely than others to oppose abortion, Republicans at this time were more “pro-abortion” than Democrats.

Although we often forget this fact, it is interesting to recall that in early 1972 fifty-nine percent of Democrats and sixty-eight percent of Republicans thought that “the decision to have an abortion should be made solely by a woman and her physician.” Indeed, Republican politicians spearheaded some of the earliest efforts to liberalize abortion laws. Barry Goldwater, for example, one of the Republican Party’s conservative icons, supported abortion rights, and in 1967 California Governor Ronald Reagan signed a bill liberalizing that state’s abortion laws.

But because of other, more liberal elements in the Democratic Party, the Democratic Party itself was officially more pro-abortion than the Republicans. Seeing an opportunity to draw disaffected Catholic voters away from the Democrats, Republican leaders began to move towards a more anti-abortion stance. They knew that, if they could succeed in this effort, they could bring about a profound shift in American politics.

This strategy was clearly evident in President Richard Nixon’s policies during the 1972 election. With a clear sense of the political ramifications of the abortion issue, Nixon embraced an anti-abortion stance in a strategic effort to draw Catholics into the Republican camp. Nixon knew what he was doing. In the 1972 election, large numbers of Catholics who were prepared to cast single-issue votes on the issue of abortion voted Republican for the first time in their lives, helping Nixon win an overwhelming victory in that year’s presidential election.

At roughly the same time, though, the rising voice of the women’s movement began to shape public discourse on abortion. In February of 1969, for example, Betty Friedan, the founding president of the National Organization for Women, delivered a rousing address in Chicago at what was billed as the First National Conference on Abortion Laws. Friedan declared that “there is no freedom, no equality, . . . possible for women until we assert and demand the control over our own bodies, over our own reproductive process.”

At the end of the conference, the participants founded the National Association for Repeal of Abortion Laws (NARAL) on the premise that what was needed was a complete overhaul of America’s abortion laws. “Recognizing the basic human right of a woman” to control her own reproduction, NARAL declared that it was “dedicated to the elimination of all laws . . . that would compel a woman to bear a child against her will.”

Later that year, Planned Parenthood and the American Public Health Association also called for repeal of America’s abortion laws and declared abortion to be a fundamental personal right of the woman. As these organizations moved to the forefront of national debate, and as women began now to speak out about their horrendous experiences in the world of illegal abortion, the law began to change. In 1970, four states – Hawaii, Alaska, Washington, and New York – legalized abortion in the first trimester, thus restoring the law to more or less what it had been at the time our Constitution was adopted.

Opponents of these laws quickly mobilized their forces, however. Adding fuel to the fire, in early 1972 Congress approved the Equal Rights Amendment, and submitted it to the states for ratification. This immediately led religious and conservative activists to tie the issue of abortion to even larger conflicts about the appropriate role of women in American society and to the meaning of so-called “family values.”

Suddenly, the legislative progress on abortion that had begun only a few years earlier ground to a halt. Despite growing – and clear majority – support for legalizing abortion, no state legislature now acted on that view. Single-issue voters, who threatened to “take out” any legislator who supported the right to abortion, now took control of the legislative process.

Indeed, only a year after the New York legislature had liberalized its abortion law, a fierce religion-driven campaign led the legislature to repeal the new law and to reinstate the late nineteenth century law that forbade abortion. Governor Nelson Rockefeller – a Republican – vetoed this new law, explaining that the clear majority of the citizens of New York supported the more liberal legislation, that the repeal had been driven entirely by religious beliefs, and that in a nation dedicated to the separation of church and state this was an impermissible basis for legislation.

Faced with this sudden paralysis in the legislative arena, pro-choice advocates began for the first time to think about challenging the constitutionality of anti-abortion laws in the courts. Initially, this seemed a long-shot because, in the words of New York Times columnist Linda Greenhouse, the idea of a constitutional right of abortion seemed somewhat “illusory.” But with legislative change effectively blocked, the courts now seemed the only realistic alternative.

In 1970, after the Connecticut legislature repeatedly refused to amend its nineteenth century anti-abortion statute, a group of women activists formed a new organization, “Women versus Connecticut,” to challenge the constitutionality of the law. “We want control over our own bodies,” they declared. “We are tired of being pressured to have children or not to have children. It’s our decision.”

Six weeks after Women versus Connecticut filed its complaint in federal court on behalf of 858 women plaintiffs, the federal court held the Connecticut law unconstitutional. Judge Edward Lumbard, a conservative Eisenhower appointee, held that, in this law, “Connecticut trespasses unjustifiably on the personal privacy and liberty of its female citizens in violation of the Constitution,” and that the state’s purported interests in banning abortion “are insufficient to take from the woman the decision . . .  that she, as the appropriate decision maker, must be free to choose.”

Cases challenging anti-abortion laws now started popping up everywhere. In Georgia, a group of twenty-four plaintiffs, including doctors, nurses, social workers, and members of the clergy, challenged the constitutionality of Georgia’s anti-abortion statute.

The federal court in Georgia also held the statute unconstitutional, explaining that the constitutional “concept of personal liberty embodies a right to privacy” that is “broad enough to include the decision” to terminate an unwanted pregnancy.

At roughly the same time in Texas, Linda Coffee and Sarah Weddington, recent graduates of the University of Texas Law School, teamed up with a plaintiff identified only as “Jane Roe” to challenge the Texas anti-abortion statute. On June 17, 1970, the federal court held that the Texas law violated the “fundamental right” of women to decide for themselves “whether – or not – to have children.”

A year later, the Supreme Court of the United States announced that it would hear the case of Roe v. Wade. Many Americans today think of Roe v. Wade as a radical, left-wing decision, but that was not at all the view at the time. By 1973, a substantial majority of Americans supported the right of a woman to terminate an unwanted pregnancy, and Gallup polls showed that “two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Moreover, as we have seen, the lower courts were already moving sharply in a direction that anticipated the decision in Roe.

In an overwhelming seven-to-two decision, the Supreme Court held that these lower courts were correct, and that the Constitution did, indeed, guarantee a woman’s right to decide for herself whether or not to bear a child. Strikingly, three of the four justices appointed to the Court by Richard Nixon, who had dedicated himself to appointing “conservative” justices, joined the decision. Indeed, without their support, Roe would have come out the other way.

That Warren Burger, Harry Blackmun and Lewis Powell joined Justices Douglas, Brennan, Stewart and Marshall in Roe speaks volumes about the mainstream nature of the decision. The plain and simple fact is that, at the time Roe was decided, the justices did not view the abortion issue as posing a particularly divisive ideological question. Although the justices certainly understood the stakes, none of them imagined that Roe would later come to be a central flashpoint of American politics.

This understanding of Roe is consistent with both the news coverage and the public reaction at the time. Because Lyndon Johnson died on the same day that the Court announced its decision in Roe, newspapers, magazines, and news shows treated Roe as only a secondary headline.  U.S. News & World Report, for example, did not even mention Roe on the front page of that week’s issue. As the editors observed forty years later, “the far-reaching effects of the decision simply weren’t evident at the time.”

This view is also consistent with the editorials and commentary about Roe, which were overwhelmingly approving. Even newspapers in traditionally conservative states took this view. The Atlanta Constitution, for example, characterized the decision as “realistic and appropriate,” the Houston Chronicle called it “sound,” and the San Antonio Light gushed that although the ruling was “not perfect, . . . it was as close to it as humanly possible.”

Moreover, the American people clearly endorsed the decision. In polls taken at the time, only forty-one percent of Americans disapproved of the Court’s decision. To put that in perspective, it is useful to compare the public’s reaction to Roe with its reaction to other, more controversial, decisions. In 1962, for example, after the Supreme Court held prayer in public schools unconstitutional, seventy-nine percent of Americans disapproved of the decision. In 1967, after the Court held laws prohibiting interracial marriage unconstitutional, seventy-two percent disapproved. In 2010, after the Court held laws limiting corporate campaign expenditures unconstitutional, eighty percent of Americans disapproved. But only forty-one percent of Americans disagreed with Roe.

An additional measure of just how uncontroversial Roe was at the time is the fact that, when President Gerald Ford nominated John Paul Stevens to succeed Justice William O. Douglas in 1975, not a single senator asked Stevens a question about Roe or about his views on abortion.

Even most evangelicals did not challenge the decision, for in 1973 most evangelicals still “regarded abortion as a Catholic issue.” The one group that did strongly condemn Roe from the very moment of the decision were Catholics, who disapproved of the decision by a margin of fifty-six to forty percent. Indeed, within days of the decision, thousands of telegrams and letters of protest from Catholics began pouring into the Court, many of them form letters from Catholic school students denouncing the justices as “murderers” and “butchers.” The vast majority were addressed either to Justice Blackmun, the author of the opinion, or to Justice Brennan, the Court’s only Catholic justice, for whom I was serving as a law clerk at the time.

Of course, as we know, Roe eventually emerged into a bitterly divisive issue, but this did happen until the end of the decade, as the Culture Wars exploded over such issues as the ERA, gay rights, obscenity, and women’s liberation, thus inflaming the evangelical community.

By this time, polls showed that more than a third of all Americans identified themselves as “born again.” Evangelicals had become the nation’s largest religious demographic. When the Rev. Jerry Falwell founded the Moral Majority in 1979, he brought together for the first time the many disparate elements of Christian fundamentalism into a single, unified, political movement. Falwell explained that Roe had awakened him from his slumber, and he preached that if evangelicals worked together they had the power “to take control of the national government.”

The Moral Majority raised huge amounts of money to support political candidates, and in state after state its members wrested control of the state Republican apparatus from party regulars. By the summer of 1980, Republican Party leaders were treating Falwell, more than any other religious figure in American history, like the leader of a powerful political constituency.

The Christian broadcaster Pat Robertson boasted that the evangelical community now had “enough votes to run the country,” and in his pursuit of the presidency, Ronald Reagan now called for a constitutional amendment to overturn Roe v. Wade and promised to appoint pro-life judges at all levels of the judiciary, thus ushering in a historic era of judicial nominations shaped in no small part by religious conceptions of constitutional law. With Reagan’s election, James Dobson, the founder of Focus on the Family, proclaimed that evangelicals had finally “come home,” and that “home was the White House.”

In the years since 1980, a succession of Republican presidents, have sought to appoint Supreme Court justices who would overturn Roe v. Wade. Interestingly, though, three of those seven justices – Sandra Day O’Connor, Anthony Kennedy, and David Souter – disappointed those who appointed them.

Demonstrating a respect for precedent, and an understanding of the desperate plight of women in a world in which abortion is illegal, and an appreciation of the fundamental right at issue in Roe, O’Connor, Kennedy, and Souter consistently reaffirmed Roe, despite repeated efforts to overturn the decision.

Having learned this lesson, though, Republican presidents have grown ever more determined not to replicate the mistake, and with the appointment of justices like Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito, the Court has now come several times within a hair’s breadth of eviscerating Roe.

So, where are we today?

Well, had President Obama’s nominee, Chief Judge Merrick Garland, been confirmed by the Senate, as he should have been, that would have pretty much locked Roe into place for the foreseeable future, for there then would have been six justices on the Court who supported a woman’s right to decide for herself whether or not to bear a child. Largely to prevent that outcome, however, Senate Republicans, in an unconscionable abuse of authority, refused even to consider Merrick Garland’s nomination, in the hope that an anti-abortion Republican would win the White House in 2016.

With the confirmation of Neil Gorsuch put the Court back where it was before Justice Scalia’s death – that is, the Court will once again be divided five-to-four in favor of upholding Roe v. Wade. But if one of the three oldest justices – Ruth Bader Ginsburg, Anthony Kennedy, or Stephen Breyer — should leave the Court in the next few years, and if Donald Trump gets to appoint another committed conservative to the Court, there will then be five justices on the Court who will likely vote to overrule Roe v. Wade.

In the United States today, thirty percent of all women have at least one abortion during their lives, and approximately one million legal abortions are performed in the United States annually. If Roe is overruled, some states will no doubt legalize abortion, but most will not. Think of the Electoral College. If this comes to pass, hundreds of thousands of women, mostly poor and minority, will once again be thrown each year into the dark and dangerous world of back alley abortions.

So, what, then, is the takeaway? It is, in part, to make clear that a world where abortion is illegal is not the state of nature. From the ancient world until the late 19^th century, abortion was readily and legally available to women. Roe v. Wade did not mark a radical departure from our history, but a return to the world of the Founders of our nation and the Framers of our Constitution. It was only the illegitimate infusion of religious dogma into our secular law that changed all this. Especially in a nation dedicated to the separation of church and state, this is, truly, a tragedy waiting, once again, to happen.

 

* Geoffrey R. Stone is the Edward H. Levi Distinguished Professor of Law at the University of Chicago. He has served in the past as Chair of the Board of the American Constitution Society. This essay is derived from his 2017 book, Sex and the Constitution, which has been described by Laurence Tribe as a “masterpiece” that “is the rarest of combinations: a page-turner that is also a magisterial font of wisdom.”

The featured image is of Norma McCorvey (Jane Roe) and her lawyer Gloria Allred on the steps of the Supreme Court in 1989. Photo credit goes to Lorie Shaull.