Book Details Roe v. Wade and What’s at Stake
We reviewed the book Sex and the Constitution in our last issue which explores the history of the entanglement of sex, law and religion and how it relates to the U.S. Constitution.
I decided to review this book for the summer because it is written by our very own Constitutional law expert and University of Chicago law professor Geoffrey Stone, who hired President Barack Obama and Supreme Court Justice Elena Kagan to teach at the prestigious university on the Southside.
In our review last week we focused on the history of the gay rights movement – from ancient times when the Greeks honored gay men to the horrific story of what homosexual people experienced here before they gained their rights.
The second part of the book that we will focus on in this review is Stone’s description of the fight for abortion rights in this country and what is at stake now that President Donald Trump could replace any of the three oldest justices – Ginsberg, Kennedy and Breyer, which could overturn a woman’s right to have an abortion.
In the early 18th and 19th centuries, there were no laws here prohibiting either contraception or abortion (before the fetus starts kicking). In the 19th century birth control increased as the birth rate fell dramatically from 1800 to 1900. Stone writes that in the colonial era, the average family had nine children, but by 1900 the number was only three.
The abortion rate soared from about 4 percent of pregnancies in the early 1800s to about 20 percent by the 1850s, and by the turn of the century, almost a third of all pregnancies ended in abortion. But as a result of the late 1800s abortion laws, abortions had to be performed illegally in less safe circumstances.
Stone writes that reproductive rights were not at the top of the list of women’s demands, which at the time included the right to vote (woman got the right to vote in 1920) and reform laws governing marriage and divorce.
The Catholic Church did not play a dominant role in the abortion debate in the 19th century, but it changed in the 1900s when it started to take an active stance on contraception, Stone writes.
Despite the public’s changing attitude toward contraception throughout the 19th century, abortion was illegal. Every state made abortion a crime except when a doctor might certify that the abortion was necessary to save the woman’s life.
In the early 1900s, between 10 and 25 percent of all married woman had at least one illegal abortion, and almost 90 percent of all premarital pregnancies ended in an illegal abortion.
By the early 1960s, abortion had been illegal in the country for almost 100 years. People first started taking a critical look at this issue in 1962 when Romper Room’s Miss Sherri – Sherri Finkbine – took medication while pregnant that she discovered caused severe birth effects and her doctor recommended a therapeutic abortion. But when the public learned about her abortion intentions, she was fired and her husband who was a teacher was fired. Their children got anonymous death threats and the press “swarmed around their home.” She finally got an abortion in Sweden.
Stone writes that the incident ignited a broad discussion about the nation’s abortion laws and a Gallup poll found 52 percent of Americans thought Finkbine did the right thing, while 32 percent thought it was wrong. Some of her supporters called for an appeal of laws prohibiting abortion. An epidemic of German measles known as rubella hit the US from 1962 – 1965, and of the 80,000 pregnant women who contracted rubella, 15,000 gave birth to severely-deformed babies because they were unable to obtain legal abortions.
Illegal abortions at this time were very expensive and those who could afford to pay a doctor were married, wealthy and well connected. Women who resorted to self-induced abortions relied on methods such as throwing themselves down a flight of stairs, ingesting or inserting a variety of chemicals and toxins ranging from bleach to potassium, turpentine, gunpowder or whiskey. Women who self-induced abortion used knitting needles, crochet hooks, scissors and coat hangers. About 30 percent of illegal abortions were self-induced.
Religion in the 60s did not take the radical anti-abortion approach that it does today. The National Assoc. of Evangelicals endorsed ‘the necessity for therapeutic abortion to safeguard the health of the mother.” But the Catholic Church insisted abortion was always wrong, even to save the mother’s life.
Stone writes that Republicans were actually more pro-abortion than Democrats in the 1960s, but Republican leaders, seeing an opportunity to draw disaffected Catholics who historically were Democrats, began to move toward a more anti-abortion stance. Millions of Catholics on account of the abortion issue voted Republican for the first time in 1972, helping Nixon win a landslide victory over pro-choice candidate George McGovern.
By 1971, 50 percent of Americans believed abortion should be legal, and the next year 64 percent thought it should be legal. In 1970, four states – Hawaii, Alaska, Washington and New York – legalized abortion in the first trimester.
The Supreme Court case announced its decision in Roe v. Wade on Jan. 22, 1972. The Court held the Texas abortion statute unconstitutional by a vote of 7-2. Justice Blackmun observed that the criminalization of abortion was a relatively recent phenomenon. In the ancient world, particularly in Greece and Rome, neither law nor religion forbade abortion. He concluded that the states retain an interest in protecting the woman’s own health and safety when an abortion is proposed. Blackmun further reasoned that the Court had repeatedly recognized that “a right of personal privacy” has existed under the Constitution since the 1890s. “The right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun stated. He also said that there is no consensus about when life actually begins and thus the Supreme Court nor the state of Texas are “in a position to speculate as to the answer.”
Stone writes that because President Lyndon Johnson died on the same day the Court announced its decision in Roe, the press treated the news as secondary. The editorials and commentary about Roe after the decision were generally approving, including papers in the south. Even evangelicals did not condemn the decision, Stone writes, because they “regarded abortion as a Catholic issue.”
But the blowback from the religious right against abortion despite the Court’s decision has been decisive. Anti-abortion violence soared in the mid-1980s resulting in less doctors performing abortions. By the mid-1990s, 84 percent of all counties in the US, and 95 percent of all rural counties had no abortion providers, and there were 600 fewer hospitals offering abortion services than 20 years earlier. The Supreme Court also ruled it constitutional to prohibit using public Medicaid funds to enable indigent women to pay for legal abortions, comparing it to a situation where the government doesn’t have to buy poor people megaphones so they can exercise their free-speech rights.
Each year there are roughly 6.7 million pregnancies and about half are unintended. Forty percent of all unintended pregnancies end in abortion. Thirty percent of all women have at least one abortion and one million abortions are performed each year here. “Faced with an unintended pregnancy, higher-income women are three times more likely to have an abortion than women living below the poverty line.” Fifteen percent of women live at or below the poverty line, but they have 40 percent of all abortions and 50 percent of all unintended children. Abortion has fallen from 1.6 million in 1990 to 1 million in 2016. “The combination of better sex education, easier access to contraception, and the availability of more effective contraception has reduced both the number of unintended pregnancies and, as a result, the number and rate of abortions,” Stone writes.
Another reason there are less abortions today, Stone writes, is that perhaps people have become less accepting of abortion. But today still only 29 percent want to overturn Roe.
However, the possibility that Roe could be overturned lurks with a president who has courted the religious right and could replace one justice who could then overturn the historic decision, and Justice Blackmun’s fear that would “return us to the back alley, and a number of these women, an unconscionable number, will die.”