SOCIETY
The U.S. Supreme Court could overturn the country's constitutional right to abortion. Politico published a draft of the decision, which is a summary of the majority opinion of the judges. Such a change is largely possible because conservatives won a majority on the highest court in the United States under Trump, but from a historical perspective, what is happening is the result of the increasing politicization of abortion. Abortion rights became a stumbling block between Republicans and Democrats just a few decades ago; now, in the run-up to the election, this fight is reaching its highest point.
Recent events in the U.S. have been another reminder that no outcome of the fight for women's rights can be said to be final. The history of abortion bans in the U.S. dates back to the mid-19th century, but unlike today's conflict, its main actors were members of the professional medical community.
Affordable abortion and women’s monopoly on knowledge
Until the mid-nineteenth century abortion was a common and non-stigmatized procedure. At that time, 20 to 35% of pregnancies ended with what was called “restoration of menstrual regularity.” The chief means of abortion were herbs grown in one's own gardens or over-the-counter medicines in pharmacies. For wealthy and middle-class white women, abortion was part of reproductive health. The decision to terminate a pregnancy was made personally by the woman, not by doctors. However, the situation was quite different for enslaved women, whose bodies were controlled because their children were considered the property of the slave owner.
Before the professionalization of the medical community, women also had a monopoly on reproductive knowledge and often turned to other female midwives for help.
Under British Common Law, in the nineteenth century abortion was permitted until the fetus moved, which only the woman herself could notice and confirm. This usually occurred between the fourth and sixth months of pregnancy. Thus, it was virtually impossible to prove in court that the pregnancy was terminated after fetal movement began. In addition, an abortion performed past that point was considered only a minor crime.
Historians believe that the prohibition of abortion after the beginning of fetal movement existed in order to preserve a woman's life. Termination of pregnancy at a later stage was performed with special instruments and carried more risks to the woman's life.
The anti-abortion struggle and the monopoly of expertise
The first anti-abortion activists in the United States were members of the professional medical community. They declared that pregnant women should be assisted by licensed doctors, not by midwives.
Physician-gynecologist Horatio Storer engaged in anti-abortion lobbying and even organized a real “Physicians Crusade Against Abortion” within the American Medical Association. According to historians, for many doctors who advocated the regulation of abortion, the main goal of the campaign was to eliminate the competition from female midwives.
By the beginning of the twentieth century, abortion was banned in all states. However, almost all of the laws passed at the time provided exceptions when an abortion was necessary to save a woman's life. The decision was to be made exclusively by licensed doctors.
Women's reproductive knowledge was greatly limited by the 1873 law prohibiting the dissemination of explicit materials. This included information about abortion and contraception. In 1906 the sale of mislabeled and “harmful” drugs and medicines was also banned. It became even more difficult to obtain safe abortions with medication.
Those laws gave doctors a monopoly on expertise and the exclusive right to decide whether to terminate a pregnancy. Prohibitions also led to the emergence of a black market for abortions and the resulting increase in female deaths due to clandestine procedures. The criminalization of this market hit African-American and Puerto Rican women especially hard. They were the ones who were more likely to die as a result of illegal abortions.
«My Body, My Choice»: The Fight to Legalize Abortion in the United States
But not all doctors supported the abortion ban. Many performed illegal abortions, justifying them by risks to a woman's health and life. But as medicine progressed in the mid-twentieth century and more accurate and effective methods of gynecological and obstetric care became available, it became increasingly difficult to use such justification rhetoric.
In the 1960s, the view that the abortion law should be liberalized found more and more support in society. This was primarily due to the serious consequences of pregnant women's use of thalidomide, a sedative sleeping pill. Women used it to combat morning sickness and anxiety. The drug was later found to have resulted in the birth of babies with serious birth defects. Many of those babies did not live to be one year old.
Attitudes toward abortion were also affected by the rubella epidemic, which resulted in tens of thousands of babies born with deafness, blindness, heart defects, and mental problems. The outbreak of the disease showed that not only minorities and the poor needed abortions, but also white, wealthy women.
The shift from demands for reform of the law banning abortion to demands for its complete abolition occurred in the late 1960s. This was associated with the significantly grown influence of the second-wave feminist movement. As Betty Friedan, leader of the National Organization for Women in the United States and author of “The Feminine Enigma” (1963) stated: “A woman's right to control her reproductive process must be established as a basic, inalienable, human, civil right.”
A branch of the environmental movement, whose activists were concerned with sexual freedom and population control, also advocated the abolition of the ban on termination of pregnancy. The Zero Population Growth group, formed in 1968, played a particularly important role in the fight for abortion rights within this branch.
As a result of public pressure, fourteen states reformed and four more (New York, Hawaii, Alaska and Washington) repealed the law banning abortion.
In response to the emergence of social movements fighting for abortion rights, opposition also emerged. It included the Catholic Church, doctors, and housewives who fought for embryo rights.
In the early 1970s, the Republican Party deliberately escalated the conflict over abortion. Richard Nixon, a presidential candidate in 1972, used the abortion issue in his campaign to win the support of Catholics, residents of traditionally conservative southern states, and all those who normally voted for Democrats but held anti-abortion views. Thus, the polarization of society took place years before the historic 1973 Roe v. Wade court verdict, which legalized abortion nationwide.
In the late 1960s, Norma McCorvey (who appeared in court as Jane Rowe) became pregnant and wanted an abortion. She went to Texas for that purpose, because the laws of that state allowed termination of pregnancy in cases of rape and incest. But the woman could not prove rape. A suit was filed on her behalf in a district court. District Attorney Henry Wade was the defendant. The court ruled in favor of the plaintiff on the merits, but refused to enjoin the relevant abortion laws. On appeal, the case went all the way to the U.S. Supreme Court, which ruled in Roe's favor and ruled that the constitutional right to privacy included a woman's right to terminate a pregnancy at her own will. Thus, the verdict of the highest U.S. court legalized abortion across the country. Supreme Court Justice Garry Blackmun called the decision in the case “a step that had to be taken if we are to move toward full emancipation for women.”
As a result of legalization, the number of clandestine abortions dropped from 130,000 in 1972 to 17,000 in 1974. The number of deaths resulting from illegal abortions also dropped significantly, from 39 cases in 1972 to five in 1974.
The New Right and the Birth of the Pro-Life Movement
The Supreme Court decision legalizing abortions was almost immediately followed by restrictions. In 1976, Congress approved the Hyde Amendment, which prohibited federal funding of abortion. As a result, low-income women suffered, because they were the ones most likely to use government health insurance systems.
In the decade that followed the legalization of abortions, there was an unprecedented politicization of abortion. Abortion became a theme that united the New Right, led by religious activist Paul Weyrich. They opposed mainstream forces within the Republican Party and the Religious Right. Weyrich, following Nixon, used abortion to attract additional support from evangelicals. According to the New Right, the possibility of induced abortion threatened the existence of the American family, and the Roe decision was presented as a symbol of sexual promiscuity, the withdrawal of women from the family, and the decline of religion.
The New Right financed organizations specifically designed to politically mobilize evangelicals and to unite them with like-minded voters. Of those organizations one of the best known is the Moral Majority, founded by Baptist Jerry Folwell in 1979 and directed against liberalism and feminism. Abortion is an important part of the overall ideology of this movement.
The New Right also opposed the Equal Rights Amendment, which feminists lobbied for. One of the main forces of the conservative anti-feminist movement was Phyllis Schlafly. She argued that women did not need to “stoop to equal rights” because they already had a “special privilege status.” Schlafly's arguments about the need to protect the traditional family resonated with Evangelical, Mormon, Jewish, and Catholic views on women's emancipation.
It was the combined forces of the New Right and the right-wing religious movement that led to Republican Ronald Reagan's victory in the 1980 presidential election. On the campaign trail, he openly declared his “pro-life” position, and the Republican Party supported the idea that a constitutional amendment to protect the right to life of unborn children should be passed. The radicalization of the Republican Party's position on abortion in order to attract new supporters and votes went hand in hand with the consolidation of opposing views for the Democrats. In 1980, the party supported Roe v. Wade and opposed the Embryo Life Protection Amendment.
The «pro-life» fight: violence and restrictive laws
Violence by “pro-life” activists increased in the U.S. during the 1980s and 1990s. From 1980 to 1993, there were 153 reported acts of bombing or arson in American clinics. Anti-abortion activists began to resort to threats, chemical attacks and break-ins.
Members of the extremist group Army of God were the most radical. They concluded that killing the doctors who performed the abortions would help stop abortions. Their first victim was Dr. David Gunn. He was killed in Florida in 1993.
Members of the movements also came up with new anti-abortion tactics. For example, “sidewalk counseling” or blocking access to clinics. As a result, more and more doctors refused to perform abortions for their own safety.
In contrast to the violent methods of the radicals, the mainstream right fought abortion with prohibition. Pennsylvania Governor Robert Casey passed a law requiring women to give their “informed consent” before terminating a pregnancy. Women were thus required to read information about embryo development and the risks of abortion. If a woman was a minor, she had to obtain parental consent, and if married, she had to notify her spouse of her intention. At the same time, a mandatory waiting period was imposed: a minimum of 24 hours had to elapse between the time she went to the clinic and the time of the abortion.
The state Planned Parenthood Center sued the governor. The case went all the way to the Supreme Court, which eventually upheld all the provisions of the law, except the spousal notification requirement. Thus, the highest court in the U.S. supported the work of anti-abortion activists and significantly limited access to abortion on the national level. Once again, the most vulnerable members of the population were hit the hardest.
«Defender of Unborn Children» Donald Trump
The real radicalization of the anti-abortion strategy came after the election of Donald Trump as president in 2016. Hard to believe, but back in 1999 Trump claimed to be “pro-choice.” However, during his presidential campaign, he promised to appoint anti-abortion activists to the Supreme Court - in order to overturn the Roe v. Wade verdict. That gave Trump the support of conservative evangelicals and Christians, and played no small part in his subsequent election. Hillary Clinton, on the other hand, took the opposite stance during her campaign and advocated repealing the Hyde Amendment.
In 2020, Trump became the first sitting president in U.S. history to attend the March for Life, a major anti-abortion event. “Unborn children have never had a stronger advocate in the White House,” he assured marchers.
It is thanks to Trump that a steady conservative majority has emerged in the highest court of the United States. And even though he lost the 2020 presidential election, his legacy – the right-wing deviation of the judicial branch – has made the Texas Heartbeat Act and even the likely reversal of the Roe v. Wade verdict possible.
«Heartbeat Act»
In September 2021, the state of Texas passed what is known as the “Heartbeat Act.” It bans pregnancy termination after the sixth week, making no exception for cases of violence and incest. According to the authors of the law, it is at that week that the embryo has a recognizable “heartbeat.” However, many women are not even aware of the fetus at such an early stage. Experts estimate that only 10 to 15% of all abortions are performed before the sixth week of pregnancy.
Similar attempts to restrict access to abortion almost completely were made in conservative states before. But they were struck down by the Supreme Court as contrary to the landmark Roe v. Wade decision.
As a rule, to challenge a passed law, you have to file a lawsuit against the official responsible for enforcing it. But Texas' new anti-abortion law was designed to get around this hurdle. Now the law is enforced not by officials, but by the citizens themselves. Anyone can sue anyone who provides any assistance in an illegal abortion. The defendant, if he loses the lawsuit, must pay at least $10,000 to each complainant. Attempts to appeal the law before the Supreme Court were unsuccessful. As a result, in early May, a similar law was passed in the neighboring state of Oklahoma.
The Texas law poses a serious threat to the health and lives of pregnant women, especially those in critical situations. This was proven by the case of Anna, who found out about her pregnancy after the law went into effect and decided to keep the baby. However, in the 19th week of her pregnancy her water broke suddenly. The paramedics informed Anna that the baby was premature and would not survive, while the woman was facing high risk of sepsis and bleeding with a potentially fatal outcome. The doctors recommended an abortion, but under Texas law, they were not authorized to do so at that stage.
Anna could either get to a neighboring state by car, an eight- to nine-hour trip, or by plane. The woman chose the second option, and it cost her several thousand dollars. In a TV interview, Anna told NPR that for the first time in her life, she felt she was expendable:
“I have a savings account and a job that allowed me to do all this. But there are a lot of other people on this planet with a uterus who wouldn't be able to do all this. And what would they have done? Would they have just died? I think about that all the time.”
A vote for Democrats as the «last line of defense»
If the Supreme Court reverses the Roe decision, conservative states could ban abortion altogether. According to a study by the Center for Reproductive Rights, abortion could be banned in half of the states, almost all of which are traditionally conservative and are located in the south and central part of the country. For instance, Texas authorities have announced their intention to impose a total ban on abortion if the 1973 verdict is overturned.
Already many women are forced to go to clinics in states where abortion is legal. And those medical facilities are severely overburdened by the growing number of patients. The reversal of the Roe decision could lead to a real crisis within the country. Millions of women would have to travel hundreds and thousands of kilometers to get an abortion. Some clinics are already preparing for a critical influx of female clients, while others have warned that they will not be able to cope with the surge in demand. In addition, some experts fear that conservatives will want to ban women from leaving the state for abortions.
After the publication of a draft of the Supreme Court decision, left-leaning politician Bernie Sanders called on Congress to urgently enshrine the Roe verdict as law:
“Congress must pass legislation that codifies the Roe v. Wade as the law of the land in this country now.”
In February 2022, Democrats had already tried to pass abortion rights legislation, but were unsuccessful. The bill was blocked by Republicans and failed to get 60 votes in the Senate. A second attempt to legislate abortion rights in May of that year also failed. According to The Guardian, this action had more of a symbolic meaning - it was meant to unite the citizens of the country against the likely reversal of the Roe decision in late June.
The Americans' reaction: «We're not going backwards»
In response to the publication of a draft of the Supreme Court decision, there were more than 380 protest rallies across the country on May 14, including the largest in Washington, D.C., New York, Los Angeles and Chicago. The protests, under the common slogan “Bans Off Our Bodies,” were organized by a group of associations and organizations, including the Women's March, Planned Parenthood, UltraViolet and MoveOn. Protesters in Washington marched to the Supreme Court building. “I can't believe that at my age I'm still having to protest over this,” a 64-year-old federal government employee said.
Demonstrators carried placards with the slogans “Reproductive Justice for All” and “We Are Not Going Backwards” and a picture of a hanger, a symbol of dangerous clandestine abortions. Parade participants shared their personal stories of their experiences with illegal abortions. Gloria Allred, a women's rights lawyer, said she had been left in a pool of her own blood:
“The nurse said to me, “I hope this taught you a lesson.” It did teach me a lesson, but not the one she meant. Abortion should be safe, it should be legal, it should be affordable, it should be accessible.”
The 2022 survey shows that the majority of U.S. citizens believe abortion should be legal: 61% believe abortion should be allowed in all or most cases, while only 37% oppose it.
Participants of the May 14 protests also said that if abortion were banned, the rights of immigrants, minorities, and other vulnerable people would eventually be infringed as well. Amy Eshleman, wife of Chicago Mayor Laurie Lightfoot, said gay marriage rights were likely to be repealed:
“This has never been just about abortion. It's about control. My marriage is on the menu and we cannot and will not let that happen.”
Unsafe abortions and further restrictions on minority rights
If Roe is overturned, the hardest hit, as has happened before, will be on the most vulnerable populations: non-whites, LGBT+ and poor people, and those in rural areas.
Historian Gillian Frank believes that abortion, whether illegal or legal, will not go away one way or another:
“Women in America have always looked for ways to get an abortion. What has changed is context, security, economic and general accessibility, but abortion itself has remained a fact of American reproductive life since the country's founding.”
The futility of the fight against abortion, which brings nothing but increased risks to women's health and lives, has also been pointed out by Canadian health policy researcher Ahmednur Ali, whose tweet garnered 228,500 likes and nearly 60,000 retweets:
“You can never ban abortions, you can only ban safe abortions. Read that again.”
Before the Senate vote in May, Senate Majority Leader Chuck Schumer, a Democrat, issued a warning: “If we do not take a stand now to protect a woman's right to choose, then mark my words, it will be open season, open season on our God-given freedoms.”
Activists and experts do fear that the Supreme Court's actions on abortion could lead to further restrictions on freedoms, most notably access to contraception and the rights of LGBT+ people. Thus, the radicalization of the political anti-abortion fight may just be the beginning of a real right-wing turn that will jeopardize many other achievements of previous generations.