The rise and fall of Roe v. Wade in the land of the "free"

In 1969 Norma McCorvey, who had previously given birth twice, and who had given both of those children up for adoption, fell pregnant again and was seeking a legal abortion. At the time, Abortion was legal in Texas, but only if the mother's life was in danger, and hers was not. Her other options included a dangerous, and expensive, back-alley abortion, or traveling abroad to a country where abortions were allowed. Neither option, of course, were feasible for Norma McCorvey who was disadvantaged. Eventually, she was referred to Linda Coffee and Sarah Weddington, two lawyers who were keen on trying to challenge abortion rights. In order to understand why McCorvey was denied a legal abortion in the 1960s, and why Coffee and Weddington were so eager to take on her case, we need to delve a little into the history of abortion in the United States:

Surprisingly (and refreshingly), abortion in the United States was mostly legal in the 19th century (generally until the baby started moving around and kicking), however over the years more and more restrictions were added. In 1847, the American Medical Association was established which benefitted doctors by pushing midwives and homeopaths out of the medical market. Not only that, but in the mid to late 1800s, women were beginning to study in universities, many of whom were aiming to study gynecology. Many see the founding of the AMA, an organization which, at the time, consisted entirely of men, as an anti-feminist group. In 1873, congress passed the Comstock law, which prohibited the distribution of anything lewd or obscene through the mail. It was mostly meant for publications, but contraceptives were also included in this ban. At the end of the 1880s, abortions were illegal in most places across the country. It has also been posited that making abortions illegal gained traction, in part, as a response to increasing immigration. People, mainly men, were worried about the "purity" of the American population, so they wanted to ensure that as many white babies would be born as possible. In 1896, the Catholic church banned any and all abortions for its followers. Of course, we know that banning abortions doesn't stop them. People seeking abortions in the early 20th century were forced to turn to dubious drugs and tonics, or have the procedure performed by unscrupulous "doctors". It was a dangerous time for people with uteruses and many were poisoned, infected, permanently injured, or killed.

By 1955, some people had had enough and a conference was hosted by Planned Parenthood (founded 1916). At said conference, "Conference attendees said that laws should be rewritten to allow doctors greater latitude to provide abortion services, which would improve public health and access to reproductive health care for people of different economic circumstances" (Historical Abortion Law Timeline: 1850 to Today, n.d.). Following that, in the 1960s and 1970s there were a lot of high-profile abortion cases and reforms. Alaska, Hawaii, Washington, and New York repealed their abortion bans entirely. Even clergymen, in some places, were calling for the repeal of some abortions bans. It was this backdrop of changing attitudes around abortion that set the stage for Roe v. Wade. In 1970, Coffee and Weddington filed a lawsuit against Henry Wade, who was the district attorney of Dallas County at the time. They not only filed on behalf of Roe, but on the behalf of all people who, "might become pregnant and want to consider all options." For three years, the duo battled the courts all the way to the top. Their main argument for abortion was that the current laws banning abortion were in violation of the Due Process clause of the Fourteenth Amendment, which guarantees that the state cannot interfere in individuals' right to privacy, which includes making decisions about one's own body. Others were also included as plaintiffs in the lawsuit. There was a married couple where the wife was suffering from some kind of mental or emotional disorder and a she was advised to stop taking birth control, but also not to get pregnant, by her doctor. The doctor that McCorvey tried to get an abortion from was also a plaintiff. He refused to give her an abortion because he had pending charges against him for performing two previous abortions. All argued that the criminal code statutes were too vague and in violation of many amendments, the fourteenth in particular. In the middle of all this, McCorvey gave birth to a baby girl and put her up for adoption.

In 1973 the supreme court struck down the Texas law banning abortion 7-2, citing that a woman's right to an abortion was implicit in the right of privacy protected by the Fourteenth amendment. Basically, any laws that strictly banned abortions would be unconstitutional. The Court divided the gestation period into three 'trimesters' and outlined the following stipulations:

101(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

102(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

103(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This decision was upheld for nearly 50 years and was even solidified during a few high profile cases like Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. However, that same case also allowed the state to impose stricter rules on abortion without banning it outright, opening the door for other states to do the same.

In 2018 The Center for Reproductive Rights filed a suit on behalf of Jackson's Women's Health Organization (Dobbs vs. Jackson Women’s Health Organization), which was the last remaining abortion clinic in the sate of Mississippi. They were trying to block the state's seemingly unconstitutional ban on abortion after 15 weeks. Citing Roe v. Wade, the Federal district court struck down the ban. The decision was upheld in 2019 by the U.S. Court of Appeals for the Fifth Circuit for the same reason. However, in 2020 the state of Mississippi appealed to the Supreme Court and asked the judges to review the ban. The current and very conservative panel of Supreme Court judges ruled 6-3 to uphold the Mississippi ban stating that there was no constitutional guarantee to abortion, effectively striking down Americans' right to an abortion.

I'm sure we've all heard the following argument from at least one person: "Abortions haven't been made illegal, the states can simply just decide on their own what they want to do." Though that statement is technically correct, it is also fundamentally wrong. The US is a big country, and if abortions are banned in one state and the states around, as is often the case, it would make it impossible for disadvantaged people to seek one. Taking time off work, paying for transportation, and paying for the procedure will become impossible for many Americans. Not only that, but banning abortions will cause abortion clinics to disappear, and abortions aren't the only services offered: STI testing, pre and post natal care, contraceptive care, sexual health check ups... those services will likely all be gone, especially for people of color, people in the LGBTQ+ community, and those at or below the poverty line.

RIP all those living in the South East....

So the question is, "How did this happen?" Especially when the majority of Americans support the right to choose (64%)? To answer that, I want to take a closer look at the three supreme court judges who voted to uphold Roe v. Wade and the six who voted against it.

FOR

Name: Stephen G. Breyer (retired June 30th, 2022) Age: 83

From: San Francisco, California Nomination: Bill Clinton (1994)

Notes: Argues that the judiciary should include public participation and opinion in governmental opinions. Consistently struck down anti-abortion laws throughout his career.

Name: Sonia Sotomayer Age: 68

From: New York, NY Nomination: Barack Obama (2009)

Notes: Grew up in the Bronx. Fought crime in the 70s in New York. First woman of color and first Latinx justice on the Supreme Court.

Name: Elena Kagan Age: 62

From: New York, NY Nomination: Barack Obama (2010)

Notes: In 1997, she wrote a memo urging Clinton to support a ban on late-term abortions. First woman to become the Solicitor General. Often agreed with Breyer, and disagrees the most with Alito.

AGAINST

Name: Samuel Alito Age: 72

From: Trenton, NJ Nomination: George W. Bush (2006)

Notes: Replaced Sandra Day O'Connor, the first female supreme court judge. Was considered one of the most conservative justices on the Court in 2013. Said that, "Roe was egregiously wrong from the start."

Name: Clarence Thomas Age: 74

From: Pin Point, Georgia Nomination: George H.W. Bush (1991)

Notes: Was the Chairman of the Equal Employment Opportunity Commission in 1982. Has been considered to be the most conservative member since 2011. Is an originalist. Sexually harassed Anita Hill while he was the Chairman of the Equal Employment Opportunity Commission which made him subject to an investigation upon nomination.

Name: Neil Gorsuch Age: 54

From: Denver, Colorado Nomination: Donald Trump (2017)

Notes: Also an originalist. Supported the Gulf War. Attends a church that is friendly to the LGBTQ+ community.

Name: Brett Kavanaugh Age: 57

From: Washington, DC Nomination: Donald Trump (2018)

Notes: Recommended Bill Clinton's impeachment when he was working under Ken Starr. Considered to be a moderate. Christine Blasey Ford and other women accused him of sexual harassment and assault. He became a senator with a 50-48 vote. Survived an attempted assassination in June 2022.

Name: Amy Coney Barrett Age: 50

From: New Orleans, Louisiana Nomination: Donald Trump (2020)

Notes: Was voted into the senate 52-48. All democrats and one republican were against her appointment. Replaced RBG. Controversial because she was nominated only 38 days before the election which many considered to be too close to the line. Senate Republicans refused to hold hearings for Merrick Garland in 2016.

Name: John Roberts (Chief Justice) Age: 67

From: Buffalo, New York Nomination: George W. Bush (2005)

Notes: Voted to uphold Mississippi's abortion ban after 15 weeks, but said that Roe v. Wade should not be struck down as it was the "settled law of the land". In a radio interview in 1999 he stated that state laws are more attuned to what's happening in that area.

As you can see, currently, the Supreme Court is majority conservative. There is only really one true liberal while the other two that voted to maintain Roe v. Wade are considered to be more moderate-leaning. Federal Supreme Court Justices serve life terms, or they can choose to retire earlier. Many of the Justices nominated by Trump are quite young, and will remain on the Court for... 20 or 30 more years. If we want to get our right to abortion back, we are going to have to be patient and smart. Supreme Court justices are nominated by the President and then voted in by the Senate. There are two senators from each state which are elected by the people. It's important to participate in senate elections because senators vote on important laws and also, as previously stated, confirm Supreme Court appointments. Together, we need to educate ourselves on our state's senators, who they are, and what they're likely to support and dissent on, and then vote. The same goes for presidential elections. I know it sounds daunting and time-consuming, but this is what needs to be done to ensure our rights. Most of all, we need to suss out those politicians who would ratify the the right to abortion into the constitution so this kind of thing doesn't happen again. If Conservatives could wait 50 years for Roe v Wade to be struck down, We can match their grit, and surpass their determination, to get we want.

Sources: Center for Reproductive Rights. (2022, June 24). The Case in Depth. Retrieved July 10, 2022, from https://reproductiverights.org/case/scotus-mississippi-abortion-ban/dobbs-jackson-womens-health/

Harmon, S. (2022, July 6). U.S. Supreme Court Takes Away the Constitutional Right to Abortion. Center for Reproductive Rights. Retrieved July 10, 2022, from https://reproductiverights.org/supreme-court-takes-away-right-to-abortion/

Historical Abortion Law Timeline: 1850 to Today. (n.d.). Planned Parenthood Action Fund. Retrieved July 7, 2022, from https://www.plannedparenthoodaction.org/issues/abortion/abortion-central-history-reproductive-health-care-america/historical-abortion-law-timeline-1850-today

History.com Editors. (2022, June 24). Planned Parenthood v. Casey. HISTORY. Retrieved July 10, 2022, from https://www.history.com/topics/womens-rights/planned-parenthood-v-casey

Jane ROE, et al., Appellants, v. Henry WADE. (n.d.). LII / Legal Information Institute. Retrieved July 10, 2022, from https://www.law.cornell.edu/supremecourt/text/410/113

Ravitz, J. C. (2016, June 27). The surprising history of abortion in the United States. CNN. Retrieved July 10, 2022, from https://edition.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html

Wikipedia contributors. (2022a, July 5). Sonia Sotomayor. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Sonia_Sotomayor

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Wikipedia contributors. (2022c, July 6). Samuel Alito. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Samuel_Alito#Abortion

Wikipedia contributors. (2022d, July 7). Amy Coney Barrett. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Amy_Coney_Barrett

Wikipedia contributors. (2022e, July 8). Elena Kagan. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Elena_Kagan

Wikipedia contributors. (2022f, July 8). John Roberts. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/John_Roberts#Fourth_and_Fifth_amendments

Wikipedia contributors. (2022g, July 8). Stephen Breyer. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Stephen_Breyer

Wikipedia contributors. (2022h, July 9). Brett Kavanaugh. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Brett_Kavanaugh

Wikipedia contributors. (2022i, July 10). Clarence Thomas. Wikipedia. Retrieved July 10, 2022, from https://en.wikipedia.org/wiki/Clarence_Thomas