You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

Partial Law

“THANK GOD for President Bush, and thank God for Chief Justice John Roberts and Associate Justice Samuel Alito,” intoned Richard Land of the Southern Baptist Convention last week, after the Supreme Court announced its decision in Gonzales v. Carhart, the so-called partial-birth abortion case. But Land also should have thanked Justice Anthony Kennedy, whose majority opinion dangerously reframes the abortion debate.

Kennedy doesn’t proceed from the question of harm to the unborn—the premise on which the congressional act in question is based. Instead, he reasons that the ban on D&X procedures—the medical name for what the anti-choice movement calls partial-birth abortions—should be permitted because it is meant to protect women from making a choice that goes against their nature. “Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” Kennedy declares. Concerned that women may learn the details of how the procedure is performed only after the fact, he writes, “The State has an interest in ensuring so grave a choice is well informed.”

Kennedy’s opinion undermines constitutional protections for a woman’s right to make decisions established in Roe v. Wade. And, just as disturbingly, it summons up assumptions about women that go back to discredited paternalistic decisions of the Supreme Court. “It’s only a couple of paragraphs in the decision,” notes Yale Law School Professor Reva Siegel. “But it’s alarming.” In Kennedy’s words, one hears the echo of the anti-choice movement’s new emphasis on abortion as a de facto violation of something at the very core of women’s being. Medical technicalities take up the bulk of the Court’s majority opinion, but the reasoning concerns the nature of women and the integrity of their moral choices—an implicit rejection of the most mainstream tenets of modern feminism.

Legal abortion owes an enormous debt to the women’s movement; without question, feminists were critical in the last stages of the push. But the idea of abortion as a necessity for women’s well-being first came from liberals and moderates in the 1960s and even predated feminist arguments for a woman’s right to choose. For nearly 50 years, Americans have been able to separate the more abstract arguments about morality and women’s rights from the very concrete issues of women’s integrity and their health. Kennedy repudiates this understanding by reviving antique views of women as well as endorsing the new pseudoscience of the anti-choice movement.

OFTEN LOST in the debate over D&X abortion is the fact that the procedure is exceedingly rare; in 2000, there were just 2,200 cases—or 0.17 percent of all abortions. The procedure is rare because it is used to end a pregnancy late in the second trimester or later, before viability, in a tiny number of cases when the woman’s life is in danger. Abortions late in the second trimester are medically involved, potentially risky, painful, and emotionally difficult. So who waits that long?

The answer is simple: women and girls in states of duress. This includes teenagers who didn’t realize they were pregnant, or kept hoping they weren’t pregnant, or were too frightened to tell anyone and get help (a common plight of incest victims). It also includes women whose pregnancies have gone wrong, such as women found to be carrying fetuses with serious central nervous system anomalies like hydrocephaly.

Ironically, it was precisely women like these, caught in painful circumstances, who first prompted public awareness of the need to overhaul abortion law. Before Roe v. Wade, abortion was as widely practiced as it is today, an open secret despite being illegal everywhere. But, in the late ’50s, medical professionals faced a public health crisis as the abortion rate soared and the woman hemorrhaging from botched procedures became a familiar presence in hospital emergency rooms. Reformers began by attacking laws that prevented women whose lives were threatened or who were pregnant as a result of rape or incest from getting abortions. They called for laws allowing “therapeutic” abortion in “hardship” cases to be authorized by a hospital physicians’ committee. In the ’60s, the idea of therapeutic abortions gained force, garnering support from liberal Protestants and Jews, lawyers, psychiatrists, and social workers. Small bands formed across the country to press the issue in state legislatures. Two panics about birth defects—the thalidomide scandal and a 1965 rubella epidemic—stirred up discussion about what it meant to a woman to give birth to a severely damaged child. The idea of urgent need expanded from a pregnancy that endangered a mother’s life to one that endangered her mental health. By the late ’60s, reformers had won laws for therapeutic abortion in a number of states.

Over the short run in the ’60s, therapeutic abortion really only showed the urgent need for a much bigger change. The therapeutic “exception” never worked: Applications were few, because women were put off by the time-consuming and judgmental screening process before all-male physicians’ panels, and most women didn’t qualify, anyway. Committees strained to minimize the number of applications they approved, and there were horror stories of women denied—such as the woman confined to her bed by polio. And committees weren’t the only problem. In one famous case, a middle-class African American woman from Long Island, pregnant with a rubella-scarred fetus, was approved for a therapeutic abortion but had the bad luck to fall into the hands of a fervent anti-abortion Catholic physician, who tricked her into believing the fetus was normal and sent her home.

But, in the long run, the push for therapeutic abortion made Americans of both sexes think publicly about what pregnancy meant to those most closely involved: the woman, her family, and the child who could be born unwanted. Considerations of how dire the circumstances of pregnancy were in hardship cases led to reflections about the hardships any pregnancy could cause. Large numbers of people—many of them well outside the radical politics of the decade—came to believe that the state should refrain from intruding into a decision that, in the end, was the pregnant woman’s to make. In 1966, The Saturday Evening Post—as conventional as they came—ran the headline “we should legalize abortion,” and The New York Times editorialized for legalization the next year. By 1970, there were initiatives in many state legislatures and a public that was leaning toward legalizing abortion, period.

It’s interesting to note that D&X is used to end pregnancies in the kinds of situations in which there has long been a consensus that the woman’s wishes should be honored. It’s as if the anti-choice movement is going back to the ’60s and trying for a do-over, dismantling the first premise on which most could agree—the right of a pregnant woman in a terrible bind to get a legal abortion from a competent physician, one who will put her health and safety first.

SO HOW, despite public opinion, did abortion opponents manage to waylay and subvert pro-choice measures in state after state before 1973? The answer lies in the intractable determination of religious conservatives to recast abortion as a debate over the primacy of child-bearing and the personhood of the fetus, rather than as an issue of women’s well-being. The Catholic Church was the first to attack abortion: Even before Roe, the Church hierarchy coordinated a parish-by-parish effort to stop any sort of reform bill, including those for therapeutic abortions. This predominantly Catholic movement didn’t broaden into the more ecumenical one we know until the late ’70s and early ’80s, when Protestant evangelicals first joined in. In 1978, Jerry Falwell preached his first sermon on abortion; a year later, the newly formed Moral Majority put abortion at the top of its list of secular humanist scourges. Two years later, Ronald Reagan was the first presidential candidate in U.S. history to run on a party platform that condemned abortion. Over the next twelve years, the anti-choice movement battened onto fears of adolescent girls gone wild, securing parental consent laws in many states. It gained public platforms to proselytize and intimidate, with ersatz “scientific” revelations about the subjective life of the fetus. And, as the troops heated up in the 1980s, the far right wing turned violent—picketing and firebombing clinics, assaulting women, and murdering physicians.

The turn to terrorism did not serve the movement well. Americans recoiled from the violence and a “mainstream” right-to-life movement that refused to condemn it. In addition, although anti-choice forces succeeded in making it hard for women and girls to get abortions (there are reputed to be places in the West where a woman has to drive 600 miles for an abortion), they never made a dent in the 60-plus percent of Americans who supported legal abortion.

By the late ’90s, some right-to-life strategists began to search for a softer, more “woman-friendly” message. They mixed the old rhetoric of protecting fetuses with new claims to defending women: from the pressures of loutish male partners too selfish to consider fatherhood, from domineering feminists, and from the depression and “post-abortion syndrome” that supposedly ensues. In The American Prospect last October, Siegel and Sarah Blustain reported how, in South Dakota, the strategy was tested with the aid of a willing red-state legislature that sponsored a task force on abortion. The task force issued a 70-page report in 2006 that was essentially a brief from anti-choice groups: Its intent was to show that women who sought abortions did not know their own minds and that they would inevitably be harmed by an act that violated the bond between them and their child. The report led to the draconian South Dakota law that made performing any abortion, except to save the life of the mother, a felony for physicians. Voters overturned the law several months later. What’s dismaying, though, is that the logic and pseudoscience behind it survived to inform Kennedy’s opinion in Gonzales v. Carhart.

TO COMPREHEND just how bad the Court’s decision is, you need look no further than Justice Ruth Bader Ginsburg’s powerful and lucid dissent. Ginsburg notes Kennedy’s reversion to “ancient notions about women’s place in the family and under the Constitution.” In Kennedy’s statement about the legal salience of “the bond of love the mother has for her child,” she hears echoes of the Court’s 1908 ruling in Muller v. Oregon that labor laws for women must be geared to the “proper discharge of her maternal functions.” In the Court’s assumption of the role of benevolent overseer of the pregnant woman's psyche—preventing her from casually making “so grave a choice”—she hears resonances of the 1873 case Bradwell v. Illinois, which asserted that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wives and mothers.”

Ginsburg knows those decisions intimately, because she devoted much of her career to dismantling the assumptions they enshrined in the law about women’s domestic and maternal nature, their limited capacities to function in the world, and their need for supervision and guidance. In the ’70s, she helped lead a legal revolution to undo restrictions that pushed women into second-class status. It’s this comprehension of the Constitution's meaning that Ginsburg felt compelled to recall for her colleagues: “This Court has repeatedly confirmed the destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.” Justice Kennedy and four of his colleagues showed profound indifference to that distinguished history. Now the woman who engendered sympathy and respect for her difficult choices is treated as a lesser being who requires the greater wisdom of the law to pull her back from a moral precipice.

Christine Stansell is the Edwards Professor of American History at Princeton University. She is writing a history of feminism.This article was published in the May 21, 2007 issue of the magazine.