Roe v. Wade, a 1973 United States Supreme Court case, changed the reproductive-rights landscape for American women. Our highest court deemed that “choice” was a fundamental right of a woman, to varying degrees, during the first six months of pregnancy. Prior to Roe, abortion was criminalized throughout the nation. That did not mean that abortions did not occur; it’s just that they were done in places to include back alleys, beauty salons, and hotel rooms — typically by unlicensed people using non-sterile equipment in unsanitary settings. Many women died. Before Roe, some 5,000 women a year died in America from “illegal” abortions.
I first learned about the pre-Roe world from my mother who was trained in the medical profession in the 1950’s. My mother’s supervisors at the hospital asked her to attend to a 16 year-old high school student who was dying from sepsis caused by a back-alley abortion. My mother recounted how the student’s religiously strict family had not known that their daughter was pregnant and that they had shunned her. My mother held the student’s hand for hours, and took an extra shift so that she was present when the young woman died and her body taken from the room.
My father, a doctor with a large medical practice, when “presiding” over our family dinners would express his outrage over government intrusion into a doctor’s care of patients. Dad would rail against government officials “having no medical school training, criminalizing physicians providing legitimate medical treatment to their patients.” My father, formerly a Republican, switched to the Democratic party when he heard President Nixon, in 1972, professing the need to protect the “rights of the unborn.” “What about the rights of the women and their right to make medical decisions after talking to their doctors!” my father would intone.
For me, I was a ninth-grader when I realized there would be no debating the issue. I was unapologetically pro-choice. It was a black and white police photograph published in Ms. Magazine that cemented my views. The image? A then-unidentified woman crouching in death on elbows and knees, her face buried in a filthy carpeted motel room floor, with a pool of blood staining the floor beneath her. The woman had gone to the motel to undergo an abortion; she had hemorrhaged and the provider had left her there to die alone.
I remember when Roe became the law. Only two of the nine justices opposed it, it was a 7 to 2 opinion which held that a woman’s right to choose an abortion was a private matter emanating from an unenumerated right of privacy in the 14th Amendment’s liberty guarantee in the Equal Protection Clause. (“ . . [N]or shall any state deprive any person of life, liberty or property without due process of law.”) I thought it would be “settled” law and that most of the public would be on board with a woman making decisions about her own body. I was wrong.
As the fundamentalist movements of the second half of the 20th century took root, Roe became a flash point and courts began to chip it away. In 1992, the Supreme Court opened the door wide for draconian limitations on a woman’s right of choice. The Supreme Court in Planned Parenthood v. Casey, proclaimed that the court was “essentially” upholding Roe, but, in fact, the Court significantly gutted it.
This meant that as of June 1992, (when the Casey case issued) a woman’s right to reproductive autonomy was no longer deemed by the high court to be a sacrosanct “fundamental right.” (Think the First Amendment’s Free Speech right whereby if the government wishes to infringe or diminish that right, the government has the burden of proving significant and compelling reasons to satisfy the court that the right should be infringed.)
But Casey “downgraded” a woman’s right to choose. In Casey‘s aftermath, states could and did fashion anti-choice legislation regulating a woman’s decision at any point in pregnancy. The only limitation on the laws was that they could not impose an “undue” or “severe” burden on the woman. Restrictions on choice implemented since 1992 include: waiting periods of up to three days, doctors being required to tell women “false facts” that abortions cause things like suicide and infertility, requiring providers to ultrasound women (including vaginal insertion ultrasounds) and to test for fetal viability, as well as requiring them to inform women about fetal development and adoption options.
So today when people say Roe v. Wade is in jeopardy, what they are really saying is that women are in more jeopardy because a woman’s right to choose became much more “fungible” with Casey in 1992. Since Roe, states have passed well over 1000 restrictions on abortion, with more than a third enacted in the last five years.
And even before last weeks’ anti-abortion laws percolate up to the Supreme Court (that is, Georgia’s 6 week heartbeat abortion ban law, Missouri’s 8-week ban, or Alabama’s no-exception-for rape-or-incest abortion law) — it’s important to note that there are already abortion cases teed up at the Supreme Court — awaiting the jurists’ review. Vice President Mike Pence, when he was governor of Indiana, shepherded in the Indiana’s “no abortions if fetus has genetic abnormality” law which also had the requirement that fetal tissue be buried or cremated and an ultra sound requirement. Also awaiting review is Louisiana’s “Unsafe Abortion Practices Act” which requires that doctors have admitting privileges at nearby hospitals. It’s practically identical to an “undue burden” doctor privileges requirement from a Texas case that the Supremes struck down in 2016.
But with the court’s new additions, Gorsuch and Kavanaugh, and with Chief Justice Roberts at the helm, it’s hard to imagine that any state restriction would constitute so severe a burden that a woman’s rights would prevail over those of a fetus.
What to do? Should we capitulate and return to the time before 1973 when abortion was illegal throughout the country and women died from back-alley “medical” procedures?
No, it’s time to reclaim a woman’s right to choose as a fundamental right — and try to do so even before this Court with its current composition. Lawyers appearing before the court should channel the fortitude, insight, and churzpah of Margaret Sanger (1879-1966), former public health nurse, who opened the nation’s first birth control clinic in New York in 1916. Sanger well knew the importance of reproductive autonomy. Her own mother had endured 18 pregnancies and died before middle age. Sanger, who worked in the poor communities of New York’s Lower East side, witnessed women dying from abortions and suffering emotionally, physically, and economically from the inability to prevent pregnancies.
Sanger “walked the walk” and was convicted at trial and imprisoned for the crime of providing birth control information and devices to women. Sanger’s words from over 100 years ago, printed in her contraception information newsletter in March 1919, still resonant today. Her words (recited here) should be front and center in any argument made in the reproductive cases before the courts:
“No woman can call herself free who does not own and control her own body . . . [and have the ability to] choose consciously whether or not she will become a mother.”
In addition to quoting Sanger, lawyers arguing on behalf of women seeking reproductive autonomy should add new arguments to their constitutional arsenal. Pregnancies forced to term by the government violate not only the 14th Amendment but also (i) the 13th Amendment’s ban on slavery and involuntary servitude and (ii) the 9th Amendment’s protection of rights retained by the people even when those rights are not specifically enumerated in the Constitution. Right to reproductive autonomy may not be enumerated in the constitution, but neither is the right to education now enshrined in 1954’s Brown v. Board of Education, the case that outlawed the practice of “separate but equal” schools.
Sanger called reproductive freedom “fundamental” to a woman’s well-being. It’s actually much more encompassing than that. It is a constitutionally promised “blessing of liberty” to which the female portion of the population is also entitled.
Julie A. Werner-Simon is a Former Federal Prosecutor and Constitutional Studies Fellow with Southwestern Law.