Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling
Edited by Linda Greenhouse and Reva B. Siegel
(Kaplan Publishing, 335 pp., $26)
America and the Pill: A History of Promise, Peril and Liberation
By Elaine Tyler May
(Basic Books, 214 pp., $25.95)
Ourselves Unborn: A History of the Fetus in Modern America
By Sara Dubow
(Oxford University Press, 308 pp., $29.95)
When the Pence Amendment passed the House this past February with a rousing majority, the Tea Party took a new turn into aggressive anti-abortion politics. Who would have thought? It looked like immigration, or the opposition to it, was their social issue. The bill blocks all funding to Planned Parenthood, “the largest abortion provider in America”—even though the Hyde Amendment has blocked federal funding for abortion since 1976. It was pure political stagecraft, red meat for the base, and it went down in the Senate, 44-56. What’s important, though, is that it signaled a turn to the hard right of a movement that spent the 1990s trying to distance itself from the fanaticism of the previous decade (pictures of bloody fetuses, clinic bombing, depictions of women as selfish bitches) and work out a softer, gentler “woman-friendly” approach to illegalizing abortions. The politics of abortion are suddenly moving fast again, and they are taking us back to the 1980s, when anti-Roe forces thought they could undo the central tenet of modern heterosexual life, the separation of pregnancy from sex, and edged up to taking on contraception along with abortion.
The battle over abortion has been going on forever: my entire adult life; or since you were born; or since before you were born. People may be forgiven for assuming that it springs from some mythical confrontation. That is the way conservatives want you to see it: as an inevitable clash catalyzed in 1973 by Roe v. Wade, the decision that went too far. Weary of the fight and painfully aware of its enervating effects, liberals and young feminists edge warily toward this narrative as they observe the tenacity of the opposition and see what seems to be a deep-seated moral reaction touched off deep in the national psyche.
But this argument can flourish only in the absence of history, because history tells a different story. The record is clear. Well before Roe, anti-abortion politics were drummed up and driven by self-interested right-wing elites, not by deep-seated outrage. Abortion reform moved with majority opinion, not against it; and mainstream approval was strong enough that there was good reason to think that a Supreme Court decision such as Griswold v. Connecticut in 1965, which effectively legalized contraception for married people, would settle the issue, and legal abortion would slip into the mainstream of American life as contraception had. It did not turn out that way—but not because Roe provoked revulsion from an aroused public. The opposition was drummed up, exacerbated, and orchestrated by elites at the highest levels of the Catholic Church and the right wing of the Republican Party.
It could have been different. Abortion might have ended up as legal, available, something seldom discussed as a personal matter in public—like what contraceptive you use—and tacitly accepted as what it has always been for women historically: a method of birth control used when other measures failed. The ethical and moral arguments need not have disappeared; in fact, they could be fuller, freed from the need to support partisan positions. And with the insights that feminism has given us, those arguments would also be more complex, not beginning and ending with the ontological status of the fetus but expanding to consider the dignity and the liberty of conscience of the pregnant person.
FROM EARLY ON, Roe v. Wade was so vulnerable to attack that it provoked critiques from all over the political spectrum, including by some of the finest feminist legal minds in the country. Reva B. Siegel and Linda Greenhouse have been involved in the re-takes for years: Greenhouse as a journalist covering the Supreme Court for The New York Times, Siegel as a feminist constitutional scholar who writes brilliantly on ways to reformulate the right to abortion before a Court very different from the one that decided Roe. But their aim in Before Roe is not to rehash the decision. They wish to explore what led up to it. Before Roe is a collection of historical documents, and that usually means a book for college students. But the novelty of the materials—unearthed from deep in the archives—and the smart and often revelatory commentary, and the refreshing freedom from polemic, make this the best book about the subject to come along in some time.
Before Roe starts in the late 1950s, when the call for change first came from physicians, public health professionals, and Planned Parenthood leaders who confronted first-hand in patients the terrible effects of illegal abortions and unwanted pregnancies on family life and maternal health. Abortions ran in the hundreds of thousands (the estimates were from 200,000 to more than a million). The situation was much worse than it had ever been. Laws prohibiting abortion had blanketed the country since the late nineteenth century, but through the 1930s—when abortions soared— enforcement was spotty and indifferent. Reputable physicians often worked with informal immunity from prosecution, and abortions were relatively safe.
After World War II, prosecutors and police cracked down hard. The threat of prosecution drove away licensed physicians and pushed women into the hands of underground practitioners, untrained, inept, and working in dangerous clandestine conditions. Botched abortions created a public health crisis, with whole wards in big city hospitals given over to women suffering from blood loss and septicemia. By 1962, abortion-related deaths had more than tripled from the Depression; the statistics from New York City that year show abortion accounting for nearly half of all maternal deaths.
The early reformers were cautious. Women were a shadowy presence in their considerations; they focused instead on public health, population limitation, and family planning. Men dominated the groups, because men dominated everything in those days. Two medical alarms in the early 1960s pushed the situation into the headlines. One was an epidemic of German measles in 1965, when pregnant women who were afflicted were forced either to bear babies they knew were severely damaged or seek illegal abortions. The other was the thalidomide scandal, played out that same year in the highly publicized travails of an Arizona woman named Sherri Finkbine.
Thalidomide was a new tranquilizer on the British market, widely prescribed to pregnant women but not yet available in the United States. Finkbine, married and pregnant with a much-wanted fifth child, got it through a back channel to quell her morning sickness. When the scandal of some five thousand “thalidomide babies” with severe birth defects broke in the British media, Finkbine tried to get an abortion locally and was turned away. She and her husband flew to Sweden for an abortion and the case turned into an international cause célèbre.
Suddenly featured in newspapers and mainstream magazines such as Life, abortion-seeking women in these straits—with Sherri Finkbine as Exhibit A—seemed deserving of respect and dignity, not of the ignominy to which the law consigned them. The push for reform picked up momentum after 1962, with the goal being laws that standardized the exceptions for therapeutic abortion—because the mother’s life was in danger or because she was underage or a victim of rape or incest—with committees of physicians as the judges.
Contributing to the growing pressure for abortion reform was the birth control pill, which arrived on the American market in 1963. The Pill kicked off a revolution in assumptions about sex and its consequences. Elaine Tyler May’s adept, succinct book makes it clear that the appearance of worry-free contraception immediately concretized the idea that choices about reproduction should be left to the individuals involved. Americans in droves rushed to physicians for prescriptions. May finds that America and the Pill was a love story from the start. She does not discuss the subject of legalization, but her account makes it seem that Griswold essentially ratified a fait accompli.
FOR THE FAMILY planners, legal abortion was the next step. This was the mid-’60s, and politics were moving to the streets. Abortion reform, though, stood aside from radical energies: it was a cause for mannerly liberals, male and female. Then, in 1968, young feminists jumped in. The newcomers electrified a staid, mild-mannered campaign with the sensibility of the left: personal testimony, high emotion, red-hot outrage. They unloosed a torrent of evidence about what unwanted pregnancies actually meant for women and what illegal abortions were really like—stories replete with miserable, frightening detail.
The shift was momentous. Suddenly she-who-was-described turned into she-who-spoke. The woman at the heart of the problem was no longer a mutely beseeching victim, but a person of purpose, an energetic member of a newly vociferous public. By 1970, the pregnant woman began to look like an outraged citizen, and the question of a citizen’s rights crept into the political field of vision.
A fascination with how this new constituency moved abortion into a register of constitutional rights lies at the heart of the analysis of Greenhouse and Siegel. The documents bring alive the amazing intellectual inventiveness of the years between 1968 and 1972: exhilarating leaps of logic; the fusion of a political narrative of female oppression with legal claims; the ascent to popular consciousness of the idea that women had legal sovereignty over their reproductive lives—the “right to choose.” Up to this point, reform had turned on defending the physician’s right to decide how best to treat his pregnant patient (and physicians were almost universally “he”). Now the physician was sidelined. “There is no freedom, no equality, no full human dignity and personhood possible for women until we assert and demand the control over our own bodies, over our own reproductive process,” affirmed Betty Friedan in 1969. The feminist position was certain, exact, and—as it turned out—enduringly persuasive to millions.
Once the fight moved to the federal courts, the feminist insurgency took shape in class action suits organized by women’s groups and litigated by the first wave of feminist lawyers to appear in court. Before Roe presents materials from the two most important cases from the early ’70s, Abramowicz v. Lefkowitz in New York and Abele v. Markle in Connecticut. Claims to women’s equality with men, not health or physicians’ prerogatives, animated both. Greenhouse and Siegel find that Abele took a dynamic historical view, stressing changes in women’s legal status, sexual mores, and medical science as reasons to reconsider laws made a hundred years earlier. Abramowicz was mooted by Roe, but Abele reached federal court and persuaded two members of a three-judge panel to strike down Connecticut’s law. But not much of Abele made it into Roe. And while Greenhouse and Siegel mostly refrain from joining the clamor of second-guessing around Roe, there is a touch of wistfulness in their extensive presentation of these two forgotten cases, a sense of the road not taken by Justice Blackmun’s opinion, which famously blurred the rights of the physician with those of the pregnant woman.
With the rising temperature in the movement, a split developed between advocates of caution and those who wanted to go for broke. The moderates wanted to continue pushing therapeutic laws in state legislatures. The repealers wanted to concentrate on federal courts, pushing challenges up through the appeals process to go for a decision from the Supreme Court that would overturn the state laws altogether. The moderates saw the repealers as impractical hotheads who despised compromise; the repealers saw the moderates as poky and naïve, since the therapeutic laws they fought so hard for had little effect, allowing only a minuscule number of women to qualify each year.
Critics today argue that an incremental strategy would have worked better than Roe. To make that case plausible, you have to look back to the defeated moderates and their state-by-state plan. But as Greenhouse and Siegel show, it was clear well before Roe that their half-a-loaf strategy had run aground. By 1970, twelve states had indeed passed some version of a therapeutic law, but every relaxation of the ban, even the mildest, brought out virulent opposition. That opposition came from a single source: an organizing effort by the Catholic bishops that descended to the parish level. In state after state where change was pending or had passed, Catholic lobbyists and protesters pounced on errant legislators, threatening them with reprisals in the next election. Indeed, the vulnerability of state legislators was a major reason that the repealers wanted to move the action away from the electoral arena to the courts, where Catholics had no overt influence.
WHY DID THE Church dig in on legal abortion and not on legal contraception? Why Roe and not Griswold? The question is never asked, but the answer is critical to understanding the “pro-life” movement and its many self-serving manipulations of debate. For most of the twentieth century, the Vatican focused on contraception, and abortion was an afterthought. For Pius XI, who took up the question in 1930 in Casti Connubii, his encyclical on procreation and Christian marriage, contraception violated natural law. The encyclical was the last papal pronouncement on the matter until 1968, and the Vatican position put the American church in a bind. As parish priests reported to their superiors that they could no longer hold the line in confessional, American prelates held back from opposing Griswold. From the heart of Catholic Boston, Cardinal Cushing laid out a basis for concession by declaring that while the church prohibition stood, Catholics were not bound to enforce doctrine on non-believers.
It could have been the same with abortion. But unlike Roe, Griswold arrived in the midst of the liberalizing period of Vatican II. Pope John XXIII convened the great gathering in Rome in order to “throw open the windows of the church” to the demands of modernity. Vatican II, which opened in 1962, unleashed longings for change among Catholics the world over—including passionate desires for enlightened teaching on birth control and the role of women. The commission on birth control appointed by John strongly recommended relaxation of church teaching to allow some methods of contraception in marriage.
It was a shock, then, in 1968, when John’s successor, Paul VI, reaffirmed the hard line. In Humanae Vitae, Paul modified the draconian injunctions of Casti Connubii only on the point of whether the rhythm method (previously banned) was permissible (it was). Political insurgency ran in chain reactions that year, and Humanae Vitae tripped off outrage and outright defections from Catholics on both sides of the Atlantic. Greenhouse and Siegel report “swift, fierce, and public opposition” in the United States from laity, theologians, and priests alike. Thousands demonstrated at the American bishops’ conference that year, where their speaker was the liberal Catholic antiwar presidential candidate Eugene McCarthy.
The American prelates had a huge problem on their hands. Facing massive doubts about the Pope’s ability to lead and to instruct, the bishops made a tactical retreat. Although Humanae Vitae mentioned abortion only in passing, they responded with a rhetorical sleight-of-hand, shifting from contraception to abortion as the defining issue. They thereby managed simultaneously to sympathize with disappointed and angry congregants and to uphold papal authority. Before Roe presents a startling document from this critical turn in church politics, a pastoral letter from the National Conference of Catholic Bishops in 1968 meant to defuse the crisis. Contraception was more or less a bygone issue, the bishops assured their flock loftily—but the fertilized egg, well, that was something on which everyone could agree: “a human person, nothing more and nothing less, is always at issue once conception has taken place.”
The deep resources and coffers of the church opened to those prepared to take up a crusade against the real evil; the old evil of contraception was left on the shelf, where it has been gathering dust ever since, the Vatican’s continuing opposition to it scarcely recalled. The fetus, for so long a silent partner in debates about the morality of abortion—in 1968 the bishops were still talking about marital duty, and only incidentally about the “human person” in utero—was about to come on stage, a new protagonist who would take on many guises: a silenced innocent seeking protectors; a litigant in a legal class; a unique, feeling individual; and an icon to rally believers at a crucial moment when a crisis in the Catholic Church conjoined with American political party realignment.
ROE WAS NOT the problem: on this point the documents furnished by Greenhouse and Siegel are abundantly and unequivocally clear. You cannot read these materials and not see that an implacable Catholic opposition was up and running well before 1973. It was aroused not by radical change but by the possibility of any change at all. It was an expression of the conservative laity, and it was orchestrated by the Church hierarchy—and, it turns out, by the White House. The material in Before Roe about how the Catholic vendetta played into Republican Party strategy is crucial for understanding how and why the issue turned into the constant of national politics we live with today.
The turning point came in 1972, in a showdown in New York state. In 1970, the state legislature passed the most liberal bill in the country, which removed all restrictions on abortion in the first twenty-four weeks of pregnancy. Thousands of women flocked to New York City for abortions, while Catholic protesters descended on Albany with a fury. In 1972, they succeeded in forcing a vote to reinstate the old law. It was an election year, and aides in the Nixon White House, taken with a vision of a new Republican majority in the making, spied a chance to peel away Catholic voters from their traditional loyalty to the Democrats. Nixon, unsolicited, sent a letter to Cardinal Cooke of New York in support of the church’s actions in Albany, declaring his abhorrence for any policy—such as the New York bill—that was “impossible to reconcile with either our religious traditions or our Western heritage.”
It was a first for a president—imagine Roosevelt or Eisenhower weighing in on whether life begins at conception, and you can see that this was shocking even for Nixon, a man who specialized in going over the top. An infuriated Nelson Rockefeller, the moderate Republican governor of New York, vetoed the act and restored the law. Rockefeller had no illusions about what had happened. Reeling from the meddling from a religious minority abetted by a president from his own party—he also happened to be chair of Nixon’s re-election campaign—he issued a veto message decrying the anti-democratic tactics and the “extremes of personal vilification and political coercion” brought to bear on members of the legislature by forces intent on subverting the will of the majority of New York citizens.
The church’s campaign no more reflected unity among Catholics than it did American public opinion. Polls showed that Catholic support for liberalization lagged only slightly behind that of other religious groups; and Catholic women sought abortions in the same proportion as Jews and Protestants. Neither were Catholic theologians of one mind: they debated whether or not the prohibition of abortion was based in natural law, and what its relationship was to the continuing ban on contraception. As party realignment picked up speed, Catholic liberals, whatever their views on abortion, bridled at the crass politicization of observance at the parish level. Before Roe reprints an article from the liberal Catholic journal Commonweal that describes with dismay a mass in Orange County, California, where voter registrars manned tables at the front of the church and the priest asked Democrats to switch their party affiliation after the service. The writer objected to “partisan political workers whose interest in morality is secondary to their interest in winning over Catholic voters.”
Undoubtedly there were others, non-Catholics, who also believed that abortion was immoral, but they refrained from pushing into politics views that were widely assumed at the time to be a matter of individual belief. Even the Southern Baptists and the National Association of Evangelicals acknowledged principled disagreement among their members. The absence of support for aggressive opposition from outside Catholicism meant that the right-to-life movement courted reaction. If it were to fend off anger at the intrusion of Catholic doctrine into law, it needed to broaden its political base. This required an indictment of abortion that came from somewhere besides the pope. Liberal rights rhetoric was one way to appeal to non-Catholics, but the unwillingly pregnant woman seemed to have a monopoly on rights. The solution lay in the discovery of a new victim of discrimination: the fetus.
This previously unimaginable venture attracted talent, including some top-echelon conservatives who had never before shown a shred of interest in abortion. “Abortion is nothing less than a question of civil rights,” wrote L. Brent Bozell Jr., an intimate of William Buckley and a former National Review editor. He meant the civil rights of the fetus. Bozell, while Catholic, downplayed the religious affiliations of his organization, Americans United for Life. He featured a few prominent Protestants on his board and stressed that the message was not “theologically or programmatically religious.” Other ideologues in the early 1970s analogized abortion to slavery, Indian genocide, America’s “faithless abandonment of women and children,” and the neglect of the poor; they hauled out the Constitution, the Bill of Rights, and the U.N. Declaration of Human Rights.
Meanwhile, in an attempt to stake out a place in federal court, the Fordham Law professor Robert M. Byrn claimed that abortion was a violation of the Fourteenth Amendment’s equal protection clause when he brought a class action suit in 1972 in New York on behalf of all fetuses about to be aborted under the new state law in public hospitals— making the same argument for fetuses that Abramowicz made for women. The brief held that “each individual member of the unborn class is an unmistakable individual human being.”
BY 1972, ANTI-CHOICE advocates were routinely throwing around the view that life began at conception as if it were an ancient belief. In fact, no religious tradition, including Catholicism, has had a consistent view of the status of the fetus; and for centuries no religion has been especially interested in the question. Before the advent of reliable contraception, pregnancy was always deemed a woman’s matter, only incidentally considered by ecclesiastical or secular authorities. Sara Dubow’s outstanding book, a history of the idea of fetal personhood—or more precisely, zygotic personhood—illuminates a murky history. Dubow begins with the ancient and ubiquitous belief that “quickening,” the point when a woman first feels the fetus move, marks the moment when the soul enters the body and the unborn child becomes fully human—an understanding elucidated by Aquinas, who held along with other ancient and medieval writers that “hominization” was delayed, because the soul could not occupy an unformed body. Only in 1869 did the Catholic Church identify conception as the moment of “hominization.” Dubow is not a student of theology, and any investigation of church doctrine on contraception uncovers a quiet debate that went back and forth over the centuries, especially in the early church; but on the overall historical pattern, she is correct. Abortion remained largely a matter of ecclesiastical indifference until quite recently.
Dubow traces over the last century a series of uneven and disparate developments in understanding the unborn. By 1900, advances in embryology led many people of advanced views to hew to a “discourse of bio-theology” that endowed the fertilized egg with humanity. Enthusiasts of eugenics, infant psychology, and public health—and even a few feminists—extrapolated from medical science that a human drama occurring in utero could result, if properly managed, in a child guaranteed to become a good American citizen. The fetus was not so much a person as a bundle of potential. At the Chicago World’s Fair in 1933, visitors marveled at an exhibit on human development featuring a lineup of fetuses in formaldehyde, and no outraged protesters called for interment in holy ground. As for the law, courts until 1956 held that personhood began with fetal viability—a point at a minimum two months past quickening.
Extrapolating from Dubow’s book, it is clear that on the eve of the movement to legalize abortion there was no agreement about—and little interest in—the status of a non-viable fetus. Then came the Catholic-driven reaction that Siegel and Greenhouse document. Dubow’s amazing account of the Kenneth Edelin scandal in Boston in the early 1970s dramatizes the leap from the muddled situation of the late ’50s to the fevers of the ’70s. Edelin, African American and a Columbia graduate, was chief resident of Boston City Hospital, in the working-class South End. A staff of largely Irish-Catholic nurses served a largely black patient population. After Roe, West Indian and African American women inundated the hospital with requests for abortions. A “conscience clause” allowed physicians (but not nurses) to refuse. Edelin, a man committed to reproductive rights, was one of two physicians on staff who performed them.
In 1974, the Boston busing controversy exploded, and soon every anti-busing politico on the scene was somehow linked to the right-to-life holy war. The use of fetuses in the city’s research labs was already under scrutiny; and right-to-life organizations found ready allies in ambitious politicians looking to play to an Irish Catholic constituency inflamed with racism and class rage. In an atmosphere fraught with anti-black animus, religious zealotry, and right-wing populist rage—South Boston’s high school had just re-opened in January—nurses who assisted Edelin in an abortion accused him of smothering a viable fetus in order to deliver it to the hospital’s research lab.
Edelin was indicted for manslaughter. The subsequent jury trial was a clash over language (child or fetus? mother or patient?), professional protocols, and race, with one juror reported to have remarked that “that black nigger is as guilty as sin.” The guilty verdict, so contrary to the evidence that Edelin’s attorney asked the judge to set it aside, sent shock waves through a city already reeling from violence. Edelin came out a hero—medical colleagues rallied around and reinstated him the day after he left court—and an appeals court unanimously overturned the verdict. But the connections between the defense of the innocent fetus and a new populist politics were enduring.
Much more was to come. In 1979, the newly formed Moral Majority brought in Protestant evangelicals to give Catholics the partners that they needed to present their anti-Roe crusade as an expression of vox populi. That coalition has gained much from its heterogeneous character, but it has remained religious to the core, despite its attempts over the years to use ersatz science (and now, with the Pence Amendment, fiscal conservatism) to create an aura of secular authority. The public face of anti-choice politics is evangelical Protestant, but the Catholic presence remains strong. It was the Catholic bishops who held up passage of the Affordable Care Act at the eleventh hour when they made the prospect of insurance coverage for abortions the do-or-die issue of health care reform.
Still, it is striking how constant legal support for abortion has remained. In the weeks after Roe was announced, polls showed roughly two-thirds of the public approving the Supreme Court decision; and the percentage has remained more or less the same since. The statistics waver, depending on how the polling questions are phrased and what permutation of legal abortion is at stake. But the numbers soon settle into the same adamantine fact of political life. Most Americans, male and female, want abortions to be legal, and have wanted the same thing for more than forty years.
The abortion controversy is exhausting, but it is anything but boring. It has been a proving ground for strong-arm strategies that are now the stock-in-trade of a Republican Party taken over by people who learned what politics was about from what happened with single issues such as anti-choice. They saw that it was possible for a small minority to hamstring business as usual by presenting itself as “public opinion.” The unabashed mendacity, the extreme and implausible goals (the contraceptive-free Christian family that lurks right beneath the surface), and the ginning up of protest by elites with deep pockets and political plans: these were all road-tested on the long march against Roe.
Christine Stansell is a professor of history at the University of Chicago and the author, most recently, of The Feminist Promise, 1792 to the Present (Random House). This article originally ran in the April 28, 2011, issue of the magazine.
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