Ruth Barnett has been dead now for more than half a century. At the end of her life in the late 1960s, she urged people to stand up for “a woman’s right” to abortion. But for half a century before that, from 1918 through much of the 1960s, before the idea of “abortion rights” was a public rallying cry, she devoted herself to imagining the desperate plight of each girl or woman who showed up on her doorstep looking for help. And she devoted herself to delivering that help to one person at a time.
By the end of Ruth’s life, she had caught a glimmer of the robust feminist movement then being birthed in the United States. She admired how activists defined abortion rights as a keystone demand. Plus, she had certainly come to understand that the laws she’d always lived and worked under, the ones that guaranteed women’s endangerment and degradation, had to be thrown out and replaced with legislation that dignified and protected women’s health and their status. But Ruth never did talk or write much about power. Not the kinds of public and private power that shaped women’s lives, or the power that women lacked but were starting to claim, collectively, on their own behalf.
This is ironic, since Ruth spent so much of her life fighting powerful forces that controlled big pieces of her life and work. For decades she asserted her own wily power every day in efforts to blunt the power of lawmakers, of police, of judges, of semi-gangsters like Reg Rankin, of journalists and newspaper editors. Sometimes she prevailed; sometimes she ended up in jail. For the fifty years that she provided abortion services in the American West, the fact that her clients and their sisters had so little power, or none, was a natural feature of society and an individual tragedy.
Thinking over Ruth’s life now, I doubt whether this determined woman thought much about the particular history of laws and norms that made the degradation of women—their sexuality and reproductive capacity— seem natural. I am thinking of our long history of laws and policies that have targeted the reproductive lives and children of enslaved women, Native American women, women who got pregnant and gave birth and were not white, heterosexual, married, native-born, or citizens. Women who belonged to reviled political or religious groups, who were wives or divorced, who were rape victims, who were disabled, who were poor.
In the last decade of Ruth’s life, she might have read headlines in The Oregonian or the Oregon Journal about “women scamming the system” or “welfare queens,” women of color excoriated for having children while they were poor, who were subjected to midnight visits from welfare authorities checking whether a man was sharing their bed or maybe hiding in the closet to avoid the uninvited visitors. She was surely aware of mid-century panics about the “population explosion,” about “inner city” disobedience, about out-of-wedlock pregnancies, and about the scourge of her kind, the ones who performed illegal abortions. Policy experts and politicians responding to each of these so-called crises focused on the sex lives, pregnancies, and motherhood of the country’s most vulnerable women. They defined “excessive” indulgence in sex and irresponsible childbearing by certain females as the source of all social problems. And they meted out social, sexual, and reproductive punishments to solve these problems.
In her time, Ruth may have not seen the connection between man-in-the-house laws, which punished poor African American women for having a baby, and anti-abortion laws that aimed to stop white women from resisting another baby. Only later did advocates of reproductive justice make the connection plain: all of these mid-century “panics,” as well as other waves of moral upheaval and reform since the nation’s founding, used female reproductive capacity as the key to enforcing women’s vulnerability and their status as second-class members of society. All women were affected, though second-class status looked different by race. White politicians and policy makers exclusively valued and enforced the sex- and childbearing of white middle-class women as the engine for sustaining white population growth and white dominance in the United States. Enforcement meant using tactics that alienated women from their own sexual and reproductive bodies. It meant accusing the most vulnerable women of engaging in criminal activity as they tried to manage their fertility.
Whether or not Ruth knew the particulars of U.S. reproductive law and policy from slavery forward, and whether or not she understood the connections between the different kinds of punishments meted out to white women and women of color, an old fox like her wouldn’t have been surprised that the monumental Supreme Court decision legalizing abortion, handed down five years after she died, pointed in two directions at once.
On the one hand, Roe v. Wade (1973) gave women a substantial role in managing their own sexual bodies and fertility. The court’s decision suggested a new commitment to the idea that women, now that they were allowed to manage their fertility, were legal adults who had the capacity to be full citizens in the United States. The ruling also suggested that women’s decisions about reproduction were a private, not a public, matter. And Roe affirmed the First Amendment’s separation of church and state.
On the other hand, the majority opinion in Roe tempered or hedged in crucial ways the definition of women’s reproductive freedom. In particular, the decision, the work of an all-male majority, showed reluctance to invest fully in female dignity and self-management. For example, Roe defined a woman’s physician, almost certainly male, as her partner or guide in the decision-making process, weirdly making doctors surrogate husbands of multiple supplicating wives. Roe’s insistence on this partnership undermined the idea that the pregnant person had reproductive autonomy or even authentic decision-making power.
The majority opinion also asserted, confusingly, that the government had a special interest in the potential life of the fetus, even while it affirmed a woman’s right to end a pregnancy. The government’s interest was expressed by an escalating set of rules governing and limiting women’s decisions over the course of the three “trimesters” of gestation. This aspect of the decision suggested that as the fetus ages, the status of the woman— her access to self-management—regresses, a paradox for any woman getting closer and closer to assuming the full responsibility of motherhood.
Perhaps most important, the majority opinion justified legal abortion by invoking a right that is implied but not stated in the Constitution: the right of privacy. During the Supreme Court confirmation hearings for Ruth Bader Ginsburg in 1993, twenty years after Roe, the future justice expressed her strong regret that the decision rested on this privacy doctrine rather than on the principle that the Constitution protects abortion rights because women should have equal protection under the law. In retrospect, the privacy doctrine—the idea that an individual has what legal scholars call the negative right to be free from government interference in the “zone of privacy”—was also regrettable because “privacy” does not include a positive right establishing the government’s responsibility for making services affordable and accessible for all who want them. Roe indicated only that the government could not interfere. And the focus on individual privacy led straight to the association of abortion with personal, private “choice”—that is, the consumer-like choice making of an individual woman.
This association of “choice” and “privacy” has harmed the struggle to keep abortion legal in part because it has justified political, religious, and policy distinctions between individuals: good choice makers and bad ones, frivolous consumers and wise ones, “murderers” and mothers. Soon after the landmark Supreme Court decision, the reality set in: Roe v. Wade established a “right” for those with resources and a persuasive story—good choice makers who possess the wherewithal to enter the marketplace of reproductive options—but not a right for all unwillingly pregnant persons.
This two-sidedness of Roe reflects an unholy alliance of groups with profoundly different agendas, all promoting the legalization of abortion. Roughly, there were groups that claimed women’s rights and then groups that were already sick of calls for civil rights, women’s rights, and welfare rights in 1973. These latter groups included people who talked up abortion as a response to “welfare queens” and “overpopulation,” the racist justifications for legalization. They called for cutting down the number of babies born to poor women of color, the ones who swamped and overpopulated the ghettos of America. Roe’s two-sidedness, as well as several other cultural and political developments that took shape in the Age of Roe, such as the rise of evangelical Christianity as a political force, foretold half a century of precarity for both the Court’s decision and the women it aimed to empower.
Before we look at the ways that many women’s lives remained precarious after Roe—and at how the decision itself has hung by a narrowing strand—let’s honor, in the name of Ruth Barnett, the many ways that the legalization of abortion has served women’s interests. These paragraphs try to make clear that only when women have the right to manage their bodies do they have a chance to be full members of society.
At the most basic, demographic level, legalization had a quick and profound effect on the lives of many heterosexually active females, both those who became unwillingly pregnant and those who did not. In fact, it elevated the status of all women, heterosexually active or not.
We can start with the fact that public health experts and other observers estimated in the mid-1970s that approximately the same number of abortions were being performed in the United States after legalization—between one and two million a year—as before Roe. But the difference in results was striking. The reproduction-related death rate plummeted after Roe, largely because of the sharp decline in self-induced abortions, the tactic of the most resourceless women in the country, the ones lacking money, personal connections, and basic information. (Between 1973 and 1976, poor women could count on public funding of the procedure through the Medicaid program.) Now women could plan an abortion in a legal, not a criminal, context. And this was hugely important: legalization supported a new medical environment that was (at first) safe, stable, and dignified, appropriate for individuals owed the benefits of full adult status and basic human rights. This innovation delivered a powerful message to all of society about the value of girls and women generally.
With the birth control pill available to many women beginning in 1960, the pregnancy rate also fell between 1960 and 1970, as did the marriage rate. During that period, women’s age at first marriage began a steady climb: today the median age for women is about twenty-eight, while in 1973 it was about twenty-one. Both of these trends were possible in part because with access to both the pill and legal abortion, women were far more able to separate sex, pregnancy, and childbearing. They were able to make marriage and other life decisions independent of these matters. Clearly, as more and more women chose to finish their education and get work experience under their belt before marriage, this innovation, too, had meaning for everyone.
In another life-course shift, this one a distinctive, if indirect, result of Roe, unmarried white girls and women largely stopped relinquishing their babies for adoption, keeping and raising their (formerly “illegitimate”) children. Thousands of girls and women reasoned something like this: if the law says I can decide whether to stay pregnant, surely I can decide whether to be the mother of the child I am giving birth to. This kind of reasoning yielded a dramatic increase in the number of white single mothers after Roe, which in turn caused a sharp decline in the number of white babies sent into the domestic adoption marketplace. The call for adoptable babies did not, however, decline. So adoption agencies, buoyed by white families comfortable with the idea of racially and culturally blended families in the wake of the civil rights movement, began to develop adoption opportunities around the globe to fill the need in the United States. Agencies targeted the poorest countries and the children of the most resourceless girls and women in these places. In fact, in the baby-sending countries the incidence of adoption became a measure of the powerlessness of certain groups of women. In this way, the new choices of many women in the United States depended on the choicelessness of other women around the world.
The rise of white single motherhood that followed Roe was a challenge to racist ideas about just which girls and women had sex and babies without having husbands; it became impossible to define this syndrome as poor Black behavior. And when whites joined Blacks in the ranks of single motherhood, together they stimulated the growth of various kinds of non-traditional families that proliferated in the 1970s. They contributed to diminishing the stigma attached to parenting the family you found yourself at the head of or making even the unconventional family you wanted. The practical impacts of all of these demographic shifts tended to improve the status of many women, again demonstrating both the direct and the indirect effects of Roe. Certainly, having the latitude to decide to be the mother of the child you give birth to and defining family in your own terms, regardless of a legally sanctioned relationship to a man, became marks of adult status and society’s acknowledgment of your human right to be a parent.
As I suggested, before Roe, many girls and women who had heterosexual sex could not reliably plan their marriages; neither could many plan their education or work lives, even after contraception became more widely available. (The Supreme Court decision Eisenstadt v. Baird [1972] established the right to contraception of unmarried women, on the same basis as married women.) Unintended pregnancy was always possible and unpredictable. For a hundred years (or for millennia, depending on how you calculate), employers and school officials had drawn on this vulnerability to treat females as dead-end students and unreliable employees who deserved lower pay. Given the possibility that female employees could become pregnant at any time and drop out of the workforce, male supervisors argued that women had limited use for education. They steered white girls away from career tracks and advanced study and pushed them toward preparation for white “women’s work,” including homemaking, retail sales, and low-skilled office jobs. Supervisors claimed that these kinds of jobs required less responsible workers and allowed white female employees to cycle in and out of the workplace without causing disruption.
For much of this “hundred years,” of course, women of color were educated and employed under an apartheid-like system, hemmed in by segregated, often severely underfunded schooling and restricted to agricultural and domestic employment with subsistence wages. By the end of the criminal era, in the late 1960s, the civil rights movement and subsequent legislation began to challenge racially segregated education and employment opportunities, although other contemporaneous policies continued to tar- get and punish women of color for sex-and-pregnancy as the Age of Roe dawned. And to this day, an apartheid-like wage system prevails, with Black women and other women of color paid considerably less than white men, men of color, and white women.
In the immediate pre-Roe period, several states legalized abortion with the support of an emergent, largely white women’s movement. (As I mentioned above, nonfeminist political interest groups also supported legal abortion: the groups that aimed to control “population explosion” and the groups determined to suppress the fertility of women of color—whom they accused of having valueless babies that were costing white taxpayers too much—were definitely not feminists. The membership and the agendas of these groups often overlapped.) With these early legalization successes under their belts, feminist activist groups and their allies went on to champion a number of other state and federal laws and judicial decisions that supported women’s reproductive rights. These included pairing the right to contraception for married women (established by the Supreme Court’s 1965 decision in Griswold v. Connecticut) with the same rights for unmarried women; the Roe decision; and the right to education and employment free of several forms of discrimination.
For example, Title IX of the Education Amendments of 1972 states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX specifically criminalized discrimination on the basis of “pregnancy, childbirth, false pregnancy, miscarriage, abortion, or related conditions, including recovery.” For nearly fifty years, this legislation has been extremely important for all girls and women in school, including those who might become pregnant, who are pregnant, or who have children.
Five years after Roe, the Pregnancy Discrimination Act (PDA) of 1978 prohibited “sex discrimination on the basis of pregnancy, childbearing, or related medical conditions.” A pregnant woman who might have sought an abortion before the PDA, because she worried that her pregnancy would lead to discrimination in the workplace, might now decide that her job was not threatened even though she was pregnant. Or an unwillingly pregnant woman might, in light of these new federal statutes, feel comfortable or hopeful in making the decision to terminate her pregnancy because Title IX protected her determination to get the education that would allow her to achieve economically secure motherhood or adulthood in the future.
In the context of these new laws and new protections, educational opportunities expanded after Roe, and so did work opportunities for all women and women’s earnings. Now millions more women were in the position to pay for contraception or an abortion or to support a child, conditions that, again, strengthened all women’s claims to adult status and human rights. It’s fair to say that these claims could not have been realized without the Supreme Court’s Roe v. Wade decision. Legalization of abortion not only facilitated the practical necessities of full membership in society but defined basic relationships and identities, too, in ways that clarified women’s status. For example, Roe implicitly acknowledged the fact that women do not intend to get pregnant most of the times when they engage in heterosexual sex, and indicated that women’s intentions as well as their legitimacy as sexual persons should prevail. Roe granted women a crucial degree of autonomy in relation to their sexual partners, who were not members of the decision-making dyad. And Roe rejected the argument that fetuses, from conception to birth, may be treated as separate, constitutionally protected persons under the law.
In addition, as sex, contraception, pregnancy, and abortion became topics of public concern and public policy, the secrecy and shame attached to these matters diminished, even as women’s bodies and sexuality became, so to speak, publicly visible and endless topics of public debate. Still, many women, unshackled from aspects of sexual shame, assumed a greater degree of social power and at least a semblance of sexual autonomy, both markers of adult status and citizenship potential.
Again, in the second half of the twentieth century these matters were still highly racialized—and used to define the meaning of being white and the meaning of being “not white.” White policy makers and politicians typically assessed sexual blame and shame according to race and maintained—and even intensified—the racialized value differences they assigned to the consequences of sex: the high status of the children of white women versus the reviled status of the children of women of color. These assessments were reflected in punitive welfare legislation and eventually in President Bill Clinton’s policy of “ending welfare as we know it.” They also impacted school- and hospital-funding policies, policing policies, and many other arenas.
Racialized assessments were also reflected in abortion-funding legislation, starting with the Hyde Amendment (1976), which denied federal funding to Medicaid recipients for one and only one legal medical service: abortion. These policies left millions of poor women without public assistance to care for their children and without access to abortion services. Many policy makers and politicians were enthusiastic about legislation that had the effect of making sex itself a class privilege. After all, a poor woman, like any other woman, who engages in heterosexual sex stands the chance of getting pregnant, and under the post-Roe, post-welfare regime, she might well be unable to afford either an abortion or a child. In this policy environment, many women became essentially choiceless, a status that powerful and vocal politicians argued was appropriate for this class of poor females, whom they considered, virtually by definition, to be bad choice makers. In this way, many poor women in the United States began to live in a “post-Roe reality” only three years after the monumental Supreme Court decision. The number of individuals living in this reality has grown considerably in the nearly fifty years since that time.
But women of color and some white allies strongly resisted this kind of intersectional bias (discrimination against a class of people because they were female, poor, and of color) early in the Age of Roe. The welfare rights movement, led in the early 1970s by Johnnie Tillmon, an African American woman, drew in part on the new dignity associated with women’s reproductive and other rights. Tillmon spoke for many when she emphatically rejected the idea that motherhood or sex should be a class and race privilege. She made a powerful, memorable case for the right of welfare recipients to human dignity, despite their poverty. Tillmon and others connected civil rights, human rights, reproductive rights, and the right to be a parent, a standpoint that the reproductive justice movement—led by Loretta Ross and her sister theorist-activists—further articulated from the early 1990s onward.
Roe also stimulated the birth of the feminist health movement, as activists rejected its core feature requiring a woman’s dependence on her physician as the guiding participant in her abortion decision. Roe positioned the physician as a confessor before whom the female patient was a supplicant and, she hoped, a convincing confessant. The women’s health movement rejected this view of “privacy” and supported women’s full-throated self-definition in the medical arena generally. Movement activists argued, again and again, in many ways, that the right to privacy is impossible where women lack what the cultural critic Deborah Nelson has called “a secure public identity,” an identity that cannot be achieved simply in privacy.
After Roe, millions of people linked “consciousness” of women’s subordination with the political project of claiming women’s rights. Certainly, Roe v. Wade fueled burgeoning women’s movements of many kinds. In sum, the early demographic, practical, and political consequences of legalizing abortion strongly suggested that its recriminalization would be impossible without devastating the status of women, newly elevated in the late twentieth century.
Nevertheless, many people in the United States saw women’s new reproductive (and other) rights as constituting a cosmic threat to male privileges, to the sanctity of the family, and to the proper order of society. This sense of threat, expressed in an increasingly regressive political culture in the decades after Roe, structured an enduring backlash against the Court’s decision. As some Americans began to think of legal abortion as the centerpiece of social and religious crisis in the United States, women’s sexual and fertile bodies were once again defined as the source of and solution to the country’s problems.
A critical mass of politicians and policy makers made that case in at least three powerful ways. First, drawing on persistent white racism, Republican politicians (with some Democratic participation) developed the Hyde Amendment and argued continuously, through additional laws, policies, academic studies, and public pronouncements, that a girl or woman’s race and class legitimately marked her as possessing either reproductive rights or reproductive duties. A middle-class white woman rightly had relatively easy access to the products and services she required to manage her fertility. A poor woman of color simply had the duty to constrain her sexual and reproductive life or face various punishments. In this way, white racism was effectively reinforced through reproductive law and policy in the years after Roe, in part through the legalization and institutionalization of racially inflected meanings of reproductive “rights” and “duties,” of “legitimate” and “illegitimate” motherhood.
Second, Republican politicians recognized not long after Roe that opposition to legal abortion was an important path to sustaining and extending their power. The Democratic Party had long been the political home of many Catholic voters, whose religion opposes abortion. After Roe, Republicans could productively appeal to these voters—and the growing number of Christian evangelicals in their party—with religion-based objections to abortion. They condemned the Court’s decision as a Democratic accomplishment, even though a number of key Republicans, such as New York senator Jacob Javits, Oregon senator Robert Packwood, and Massachusetts senator Edward Brooke, were leaders in the fight to legalize abortion, which they saw as an expression of individual liberty and small government. By the time that Ronald Reagan (a former abortion-rights supporter) was elected president in 1980, he and his fellow Republicans were effectively arguing that a vote for a Democrat was simply a vote for abortion.
Third, in a related move, Republicans, with millions of new Catholic and evangelical voters on their side, built religious objections into the heart of their anti-abortion policies and politics. Over time they brought religion into the public square so fervently and frequently that its presence came to seem natural and eternal.
Having used their power and organized their base to focus on abortion as a sign of social blasphemy, Republican politicians, together with segments of their base, developed a raft of strategies to vilify abortion, abortion providers, and women seeking to manage their reproductive lives. These strategies especially targeted poor women of color, who, they calculated, could not stimulate the sympathy of the Republican base.
One of the Republicans’ most effective strategies was shepherding cases that could diminish Roe to the Supreme Court. Indeed, in 1980, Harris v. McRae upheld the Hyde Amendment, justifying its policy of withholding federal funds for even the medically necessary abortions of poor women. Justice Potter Stewart, overlooking the long-term impacts of slavery and of the subsequent employment, education, and housing laws that harmed persons of color and immigrants and kept them poor, explained that he supported the Hyde Amendment because the government is not responsible for a person’s poverty or for alleviating it. The government’s responsibilities, Stewart wrote, must be narrowly drawn: “[A]lthough government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation: Indigency falls in the latter category.”
At the end of the 1980s, in Webster v. Reproductive Health Services, the Court allowed the state of Missouri to base public policy on the theological concept that “life begins at conception.” This decision allowed the state to prohibit public employees and facilities for performing an abortion unnecessary to save the life of a woman, and to impose other abortion-limiting restrictions. Soon thereafter, with Rust v. Sullivan, the Court upheld federal regulations barring physicians at publicly funded family planning clinics from providing their patients with abortion counseling or referrals. Clearly, these and other decisions diminished Roe, especially as they targeted the choices of low-income women first and foremost, since this group would most likely be clients of public clinics.
Republican politicians, often joined by Democrats, augmented the reproductive degradation of poor women in additional ways, cutting welfare payments for poor women who gave birth while they were collecting benefits; giving cash bribes to poor women if they agreed to use long-acting contraceptives; mandating a five-year lifetime limit on welfare receipt; and prosecuting poor pregnant women for drug and alcohol use, even when they had unsuccessfully searched for treatment programs that would accept pregnant women. Ironically, if a drug-using poor woman had obtained an abortion, she would not be prosecuted for her behavior, and she would be eligible for drug treatment programs.
In addition to targeting poor women and championing legal cases that diminished Roe, anti-abortion-rights activists mounted or signaled their approval of campaigns of violence against abortion providers in the 1990s, a kind of attack that Ruth Barnett and her colleagues in the illegal era never experienced. In Ruth’s time, police and the public (even jurors) were more likely to view and protect skilled practitioners as community public health assets, with practices shut down only under occasional political pressure or if there was a death. Now, though, armies of abortion resistors—frustrated that President Reagan had not nullified Roe in the 1980s, empowered by the outspoken support for anti-abortion activists among Republicans, and with the apparent tacit support of local law enforcement—began to mount violent attacks on abortion clinics. As Randall Terry, the founder of Operation Rescue, a violence-prone group that targeted clinics, put it, “If you believe abortion is murder, act like it’s murder.” Starting in 1977, hundreds of clinics nationwide were bombed and otherwise sabotaged. By the early 1990s, violent resistors were killing physicians.
Dr. Warren Hern, a veteran practitioner in Boulder, Colorado, described the violent era this way: “In March, 1988, five shots were fired through the front windows of my waiting room . . . . It was one of several attempts on my life. Randall Terry, surrounded by his followers, stood in the street in front of my office in 1991 and prayed for my execution. In March, 1993, Dr. David Gunn was assassinated in Pensacola, Florida, by Michael Griffin . . . . Later in 1993, Rev. David Trosch, a Catholic priest in Alabama, declared that killing doctors who perform abortions is ‘justifiable homicide.’ A few days after his announcement, Randall Terry went on National Christian Radio Network, and, naming me and quoting scripture, invited his listeners to assassinate me. The next day, Shelley Shannon tried to assassinate Dr. George Tiller in Wichita. Reverend Trosch formed the ‘American Coalition of Life [sic] Activists’ and advocated the assassination of abortion doctors. Paul Hill, a member of the group, then assassinated Dr. John Britton along with Dr. Britton’s bodyguard, also in Pensacola. The ‘American Coalition of Life Activists’ had a national press conference on January 22, 1995, and announced the hit list of the first 13 abortion doctors they wanted eliminated. I was on the list, and so was Dr. Tiller. Dr. Barnett Slepian was assassinated in 1998, and Dr. George Tiller, a close friend of mine, was assassinated in his Lutheran Church in 2009.”
Dr. Hern defines this era of horror as the culmination of years of violence against and everyday harassment of clinics, their staffs, and their clients—all carried out in cities and towns across the country with relative impunity. The rise of murderous violence terrified practitioners and drove a number away from their work, fulfilling the goal of Randall Terry and his army. It also terrified unwillingly pregnant girls and women heading toward abortion clinics, especially since neither law enforcement officials nor politicians defined or responded to the violence as domestic terrorism, as it surely was. Nor did public discourse typically call out these activities as promoting violence against women. But when Randall Terry and his colleagues attacked female spaces and demanded laws to coerce childbearing, they were, indeed, calling for violence against women.
What had changed since Ruth’s day to stimulate and justify all this violence and terrorism? We can begin to answer this question by looking into the mid-century, pre-Roe courtroom where a client of Ruth’s or of another practitioner sat on the stand. The prosecutor forced the lady to relate the details of her abortion, but he didn’t typically accuse her of being a baby killer. He rebuked her for her sex life, for being willing to have sex but not to become a mother. He accused her of violating a woman’s destiny, and he used that violation to go for conviction of the abortionist. After Roe, though, in a smart, strategic move, the anti-abortion movement began to call itself “pro-life,” implying that those who supported abortion rights were “pro-death.” In the process, this movement largely ignored the rights—and the unchastity—of pregnant women as immaterial. The “unborn child” was all that mattered.
The second part of the anti-abortion movement’s smart strategy underscored this point by defining the embryo and the fetus as having the same constitutionally protected status as a baby. If the fetus was now “a child,” then the abortion provider and the woman seeking an abortion were murderers. The violent fringe of the anti-abortion movement used these definitions to justify violence, “killing for life,” and terrorizing practitioners and patients. In the process, they revitalized the old claim that for women, biology is destiny.
The anti-abortion movement has achieved numerous victories since it organized and consolidated its political base in the decade or two after the Roe v. Wade decision. Probably its greatest success has been the construction of “fetal rights” and “fetal personhood,” two linked ideas that propose a stunning new constitutional status for “unborn children.” This new status positions women as mere vessels for carrying “children” and stakes out a basis for overturning Roe.
As of 2019, thirty-eight states and the federal government have enacted so-called “fetal homicide” laws, which treat the fetus as a potential crime victim if, say, a pregnant woman is hurt or killed and the fetus she is carrying is harmed or dies as a result. These laws are also intended to punish pregnant women convicted of behavior that authorities define as endangering a fertilized egg, an embryo, or a fetus. Pregnant women who use certain drugs (but not others) have been charged with and incarcerated for this behavior. So have women who are suicidal or have fallen down stairs, delivered their children without medical supervision, refused C-sections or other medical advice, or otherwise violated some popular norm governing the behavior of pregnant and birthing women. Women accused of these behaviors have been charged with murder, manslaughter, neglect, endangerment, and criminal recklessness. In these cases, the law denies that women are full persons with established rights and views them, again, as mere vessels for unborn babies. In some cases, women— poor women—have been detained and even arrested after a miscarriage, unjustly accused of causing, not suffering, pregnancy loss.
States have passed additional laws that support the claim of fetal personhood, for instance allowing public officials to issue birth certificates for stillborn babies, and have tried to pass laws mandating burial for aborted or otherwise dead fetuses. These and the rest of the laws based on “fetal rights” constitute a strategy for defining life as beginning before birth, even at conception. The new laws position women as non-rights-bearing individuals and as “collateral damage” in the abortion wars. In these ways, anti-abortion forces have achieved steady successes in developing support for principles that promise to kill Roe v. Wade.
Republicans, the original champions of legal abortion, now champion anti-abortion litmus tests for candidates for state legislatures, Congress, the presidency, and judgeships (including on the Supreme Court). People in these positions have promoted and protected legislation that makes abortion access difficult or impossible, including TRAP (targeted regulation of abortion providers) laws that impose unreasonable, expensive requirements on the way abortion clinics are designed and the equipment they must have; parental consent laws; and laws that require waiting periods and multiple clinic visits, often necessitating long-distance travel, loss of income, motel stays, childcare complexities, and other cash-draining expenditures. Legislators have created and judges have validated categories of information that patients must receive and must not receive in the clinic, as well as other obstacles to abortion access. None of these requirements have medical or other benefits for people seeking abortions.
Some state legislatures and judges also demand and protect the kind of sex education in public schools—the abstinence-only curriculum—that multiple studies have shown contributes to higher rates of teen pregnancy, usually unplanned and unwanted pregnancies. The states that mandate the abstinence-only curriculum are the ones that make abortion access the most difficult and have the highest rates of teen pregnancy.
One more key strategy that anti-abortion proponents have long relied on is creating public education campaigns based on “bad science”—that is, anti-abortion arguments that sound scientific but which reputable scientists have not validated. Nevertheless, a network of anti-abortion advocates continue to publish studies using bad science and to testify as experts about the harmful impacts of abortion, providing material to eager, credulous legislators in the states and in Congress.
Some of this work makes the argument that abortion is unsafe and kills or maims thousands of girls and women every year. No such data exist; on the contrary, the U.S. Centers for Disease Control and Prevention and other recognized authorities annually publish data showing the minuscule incidence of medical complications associated with abortion. Anti-abortion advocates have concocted other scary messages: that abortion causes breast cancer and deep harm to a woman’s psychological health. Even though absolutely no evidence exists to support either of these claims, and a great deal of evidence refutes them, eight states require that before you get an abortion, you must receive counseling warning you that an abortion may cause long-term mental health problems.
Another insidious foray into junk science claims that fetuses can feel pain before viability, which occurs at twenty-four weeks’ gestation. Again, no scientific evidence supports this claim, according to the American College of Obstetrics and Gynecology, a professional organization of women’s health care physicians advocating the highest standards of practice. Nevertheless, in response to this scientific-sounding claim, twenty-one states have enacted twenty-week abortion bans. Clearly, the “fetal pain” gambit is tailored to appeal to the anti-abortion, fetal-personhood constituency.
These and other examples of junk science are proliferating, exciting the anti-abortion base and providing staff at so-called “crisis pregnancy centers,” state and federal legislators, judges, and Supreme Court justices with an ever-growing number of justifications to restrict access to full reproductive health services and, ultimately, to reverse Roe v. Wade. In a defensive move to publicize its claim that objections to abortion are scientifically sound, even in the absence of supporting evidence, the organizers of the 2019 anti-abortion march in Washington, D.C., chose the theme “Opposition to abortion is pro-science,” a proposition that the medical community broadly rejects.
As a result of all of these strategic attacks on Roe v. Wade and on women’s reproductive autonomy generally, anti-abortion forces have consolidated their base: to be a Republican now largely means to be anti–abortion rights. In the process of consolidating power, the anti-abortion movement has amassed a huge fund-raising and organizing network. This network has been busy. Seven states have only one abortion clinic left open, and thirty-four states forbid the use of Medicaid benefits to pay for abortion services. The Kentucky and Florida legislatures have passed laws banning abortion after six weeks of gestation—that is, before most people know they are pregnant. More states are moving toward this restriction, while other state legislatures are organizing to enact all-out abortion bans. Almost half of all American girls and women who can get pregnant, roughly those between the ages of fifteen and forty-nine, live in parts of the country where anti-abortion advocates are in power. That means twenty-nine million people are at risk of coerced pregnancy. Indeed, millions of girls and women already live in a post-Roe reality today.
Nevertheless, popular support for sustaining Roe v. Wade is wide- spread. In fall 2018, the Pew Research Center found that fifty-eight percent of Americans believe abortion should be legal in all or most cases, while thirty-seven percent think it should be illegal in all or most cases. Groups supporting Roe include eighty percent of white suburban women and seventy-nine percent of African American women. Some states with a Democratic legislature and governor, such as New York, have recently passed or are moving toward crafting strong legislation to protect abortion rights, no matter what the Supreme Court does to Roe v. Wade.
Abortion-rights activists in Oklahoma and other so-called red states are mounting public education campaigns about what women stand to lose if the Supreme Court invalidates Roe. Activists nationwide are educating women about modern, safe options for performing self-induced abortion. For example, experts at the Advancing New Standards in Reproductive Health center of the University of California, San Francisco, state that “women can safely and effectively self-induce abortion after receiving information from a healthcare provider about how to use the drug misoprostol.” If/When/How: Lawyering for Reproductive Justice, a group with a national and international focus, describes its mission as “transforming the legal landscape through litigation, public policy advocacy, and organizing to ensure that anyone who ends a pregnancy can do so with dignity and without punishment.” Its core work supports the position that “everyone should be able to self-determine their reproductive lives and access care in ways that best meet their needs and uphold their dignity,” including having access to information “about how to safely and effectively self-administer abortion care.” With the Supreme Court threatening to overturn Roe v. Wade, this group is committed to centering its “efforts on communities most impacted by criminalization.”
This resistance work is so urgent, as many people who support abortion rights understand, because of what women will lose if they lose the right to manage their reproductive bodies. Many look to the past and think about how today’s women will manage work, its credentialing requirements, and their financial and family responsibilities when they are forced to reinhabit the vulnerable bodies that Ruth Barnett helped in the shadows cast by the criminal era.
Many people worry about modern medical technologies and their benefits and how these will melt away if abortion is further restricted or recriminalized. If the negative right to abortion (Roe’s guarantee that the government may not interfere with a woman’s access) is taken away, how will that affect the status of fertility treatments such as IVF, in which multiple embryos may be transferred to a woman’s uterus but only one is sustained for gestation? What will happen to women’s access to prenatal testing and diagnosis? What will happen to the widespread practice of testing preimplantation embryos for genetic diseases? What will happen to the status of women in U.S. society? We need only look at populations of women in the past and around the world today whose governments and cultures demand coerced childbearing to imagine the intended consequences of recriminalizing abortion.
What we know is that Ruth Barnett, toiling largely by herself, could help women one at a time, but ultimately her work could not advance the status of women. As long as women had to go outside the law—become criminals—to manage their bodies, they could not have the status of full adults or full citizens (or the potential to be full citizens), nor could they share equal status with men. Without the legal right to manage their fertility, individuals are degraded. They are compelled to take medical risks that go with pregnancy and childbearing. They are required to bear discomfort and disability. They are forced to perform the uncompensated labor of pregnancy, childbearing, and motherhood whether they want to or not, whether they have the resources to take on these tasks or not. In millions of cases, they are also forced into positions of economic dependency, because taking care of a newborn or small child is often incompatible with earning money. For all these reasons and many others, state-enforced childbearing cannot coexist with dignity and equality for childbearing people.
Today we also know that the provisions of Roe v. Wade provide a floor, not a ceiling, for reproductive rights. Its guarantees do not define or ensure either rights or access for all. Roe’s guarantees grant simple consumer-like choice and the much violated promise that the government will not interfere with women’s access to legal abortion services. What’s more, nearly fifty years after this Supreme Court decision, we know that the guarantee of abortion rights—and access to reproductive health services—is a necessary but insufficient condition for reproductive autonomy. Today, activists, theorists, and segments of the public reject the framework of “choice” in favor of the framework we call “reproductive justice,” a way of thinking about what people need to be able to reproduce, or not, with dignity and safety. But what is reproductive justice and what does reproductive justice have to do with abortion rights?
To begin with, we can think of reproductive justice as a stool with three sturdy—and structurally interdependent—legs that sit on a rock-solid platform. Typically, since Roe, the first leg alone has defined reproductive politics in the United States. But within the reproductive justice framework, each leg represents a primary, necessary, and, as I say, interdependent principle: (1) the right not to have a child, (2) the right to have a child, and (3) the right to parent children in safe and healthy environments. This third principle asks how a person can make a safe decision to get pregnant, stay pregnant, and become a parent if she cannot make a living wage or must bring the child up in a neighborhood polluted by toxic waste, with a criminally underfunded school system and crumbling apartments. In response, reproductive justice calls for access to a living wage; a healthy environment; a network of interrelated, community-based resources such as high-quality health care, housing, and education; and a safety net for times when these resources fail. In addition, reproductive justice claims that the three primary rights can be fully realized only in a context where individuals can claim sexual autonomy and gender freedom.
The three-legged stool sits on the solid platform of human rights. “Human rights” refers to what governments everywhere owe their people. The idea includes both negative rights and positive rights. As we’ve seen, negative rights establish an individual’s right to mental, physical, and spiritual autonomy, free of government interference. Positive rights express a government’s obligation to ensure that people can exercise their freedoms. The human rights analysis rests on the claim that when the government, the community, and even the family interfere with the safety and dignity of fertile and reproducing persons, that is a blow against their humanity—that is, against their rights as human beings. Protecting people against this interference is crucial to ensuring the human rights of everyone because each of us has the human right (if not always the physical capacity) to be fertile, the human right to engage in sexual relations, the human right to reproduce or not, and the human right to be able to care for our children with dignity and safety.
By paying attention to the unmet health care needs of the poorest and most vulnerable women in the United States, we can see clearly that abortion rights constitute only a part of women’s reproductive health requirements. A 2013 study of the situation of immigrant women living in the Rio Grande Valley tell the story. One woman, Letitia, had bled from her vagina for months and had severe pain, but she didn’t have health insurance or the $250 dollars that the local physician charged for a visit. Letitia learned that she had a uterine tumor, but she couldn’t afford treatment either. As the mother of young children, she lives with “crushing anxiety,” worrying about who will care for them if she dies. Another woman, Josephine, cannot pay for transportation or the doctor’s fee to get an annual medical exam, and a third, Alexandra, who unsuccessfully begged a physician to sterilize her, got pregnant and gave birth to a daughter with cerebral palsy thanks to medical neglect and a general lack of quality medical care. These woman are all victims of a Texas law that makes immigrants who came to United States on or after August 22, 1996, ineligible for Medicaid coverage. These women, like all people, deserve full medical benefits and access to quality medical care, including full reproductive health services, as a human right. The reproductive justice framework calls for such rights—which are intricately connected to the right to be a mother and the right to the resources to raise one’s child in a safe and healthy environment—alongside and together with the right to abortion.
In the country where reproductive justice prevails, reproductive dignity and safety are human rights that the government guarantees. Sex and parenthood are not race or class privileges. Poverty does not disqualify people from being parents; being rich has nothing to do with legitimate parenthood. Everyone has access to the full range of reproductive health services. Reproductive capacity is not a source of danger and degradation for a rich person or a poor person, a straight person, a gay person, a trans person, a free person, or a person behind bars, a disabled person, an immigrant, a Native American person, or any person.
At this most threatening time, we recognize that we are a great distance from achieving the country of reproductive justice. But Ruth Barnett, who labored all her life to provide the bare and bravely claimed necessities to thousands of women, would have been shocked at how quickly the status of abortion turned around, her profession was legalized, and the status of women was enhanced in various ways. With hard work, focus, and determination, we, too, may be able to achieve as much as we can imagine, and in our own lifetimes.
Another abortion provider, Dr. Mildred Hanson, died in 2015 after decades of providing abortion services. In a 2003 interview, Dr. Hanson looked back at the time when she was a young, obedient, law-abiding physician. She would never have broken the law then, no matter how clearly she understood the indignities and dangers of coerced pregnancy, childbirth, and motherhood. She explained how she had changed since those days: “If Roe v. Wade were repealed, I think I’d go right on doing abortions. . . . And I would frankly just wait for them to come and get me, because . . . our experience since Roe v. Wade has convinced us so strongly of the need for safe, legal abortion. I feel more strongly about it now than I did in the days before Roe v. Wade. These days, I would go right on doing it. I would wait for the cops to come and take me. Absolutely. Absolutely.” These are stirring, brave words. Even though Dr. Hanson is gone, and Ruth Barnett is gone, there are others on the front lines who understand that whatever the future brings, whatever the law says, millions of people will take the steps they need to take to manage their own bodies. They always have. The past tells us that when abortion is not legal, people will enact mass disrespect for the law. They have to, because under these conditions, the law represents the gravest danger to their dignity and safety.