Abortion in America: The legal history

By: Joseph Lyttleton
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Over four decades after a landmark Supreme Court case legalized abortion in the United States, the controversial topic is likely to be a central issue in the 2020 presidential election. This hotly contested issue is partially at the core of a major political divide in the US

With multiple states passing restrictions on abortions and one case heading for the Supreme Court, many are wondering if Roe v. Wade could be overturned, and what that would mean for legal abortion in the country.

Roe v Wade background

Adopted in 1961, five articles of the Texas Penal Code explicitly outlined the abortion restrictions in the state. Four articles – 1191-1194 – set forth the punishments for procuring an abortion, including prison time. Article 1196, however, allowed an exception for “the purpose of saving the life of the mother.”

In 1969, a woman named Norma McCorvey was pregnant and sought an abortion in Dallas, Texas. It was her third time being pregnant. A first child, a daughter, was raised by Norma’s mother, while her second child, a son, was given up for adoption. Texas law prevented her from getting the abortion, so at five months into her third pregnancy, she sought legal counsel.

In a case filed by lawyers Sarah Weddington and Linda Coffee, McCorvey was given the pseudonym Jane Roe. In 1970, their case worked itself from the United States District Court for the Northern District of Texas to the US Supreme Court. 

The defendant in the original suit was Dallas County District Attorney Henry Wade.

As the suit passed through appeals courts to eventually reach the Supreme Court, McCorvey, unable to legally obtain an abortion, gave birth to a girl. Shortly after childbirth, the girl was given up for adoption.

When Roe v. Wade reached the Supreme Court, the Justices were already hearing two other abortion-related cases. The Justices delayed hearing about the Roe v. Wade case until they had rendered a decision on the earlier cases. 

The first arguments for Roe v. Wade didn’t occur until December 1971.

The initial arguments were given before seven Justices (unlike the nine Justices that typically hear cases today) as two, Hugo Black and John Marshall Harlan II, had retired and their replacements had not yet been appointed.

However, after two new Justices were appointed – William Rehnquist and Lewis Powell – it was agreed to present the arguments again in October 1972.

The Roe v. Wade decision

Source: publicbroadcasting.net

On January 22, 1973, the Justices gave their decision: 7-2 in favor of Jane Roe (i.e. McCorvey). The opinion of the Court was written by Justice Harry Blackmun. 

In the decision, Blackmun wrote, “It is evident that the Texas abortion statute infringes” on the right of “personal liberty protected by the Due Process Clause of the Fourteenth Amendment.”

The decision in Roe v. Wade invalidated many – but not all – restrictions on abortions both on a federal and state level. It explicitly stated that the decision to abort in the first trimester was in the hands of “the pregnant woman’s attending physician.” It gave states the right to control abortions after the first trimester so long as restrictions were “reasonably related to maternal health.”

The decision also determined that, for fetuses that were viable, states could regulate and even forbid abortion except when the procedure was necessary to protect “the life or health of the mother.”

The dissenting voices 

Justices William Rehnquist and Byron White were the dissenting voices of the Court in Roe v. Wade. In Justice White’s written dissent, he stated that the decision of the Court was “an improvident and extravagant exercise of the power of judicial review.”

In the 1980s, McCorvey stepped out from behind the anonymity of her court case to acknowledge she was Jane Roe. For many years, she was a pro-choice activist and even worked for a time at a Dallas women’s clinic that performed abortions.

In 1995, McCorvey converted to Christianity on television and publicly joined the pro-life movement. McCorvey, who had been in a lesbian relationship, also took the stance that homosexuality was a sin.

Abortion in the view of the public

According to Gallup, one of the world’s leading nonpartisan polling agencies, in the decades following the Roe v. Wade decision, public opinion has remained largely unchanged, with a majority favoring legal abortion “only under certain circumstances.”

Those who favored legal abortions under any circumstances and those who believed abortion should be illegal under any circumstances were almost evenly split. There was close to 20% support for each of these diametrically opposed “extreme positions” (in Gallup’s words).

In polling conducted in May 2019, Gallup found that overall opinion on abortion in America hadn’t changed a great deal, with 53% of respondents believing abortion should be legal “only under certain circumstances.” That is compared to 25% who believe there should be no restrictions on abortion and 21% who believe it should always be illegal.

Similarly, the Pew Research Center, another nonpartisan polling agency, has found that support for legal abortion outpaces support for criminalizing abortion. Their 2019 polling found 61% of Americans believe “abortion should be legal in all or most cases,” whereas 38% believe it “should be illegal in all or most cases.”

Pro-life vs pro-choice

Despite the polls suggesting the majority of Americans are largely in agreement on the issue, the political divide remains stark between those with strong views on abortion. This is seen in the division between individuals who call themselves “pro-life” and those who call themselves “pro-choice.”

The term “pro-life” originates in the 1960s, according to Quartz, but was associated with the anti-war movement of the era as much as the anti-abortion movement. It wasn’t until the Roe v. Wade decision that anti-abortion groups unified under the label. 

Those who supported legal abortion took on the “pro-choice” label as a refutation of the pro-life movement.

Pro-life groups were behind a push to pass a “Human Life Amendment” that Congress ultimately rejected in 1975. However, updated versions of the amendment have been proposed in the decades since then.

In the 1980s, the pro-life movement became politically aligned with the Republicans when President Ronald Reagan ran – and won – on an anti-abortion platform (despite being unopposed to abortion when he was the governor of California). Up until the 1980s, the Washington Post reported at the time, antiabortion activists were in large part Democrats.

Gallup has found that the percentage of Democrats who believe abortion should be legal under any circumstance has more than doubled from 19% in 1975 to 39% in 2019. Conversely, the percentage of Republicans who believe abortion should always be illegal has grown from 25% to 32% in the same time period. The percentage of Republicans who believe it should be legal under any circumstances has dropped from 18% to 12%. 

For both Democrats and Republicans, those who believe abortion should be legal under certain circumstances has mostly stayed steady, around 50% and 55%, respectively.

Those trends are also mirrored in the preferred labels of each party. In 2019, Republicans preferred the pro-life label to pro-choice 75% to 21%. That represented a consistent change from 1995 when the difference was 51% to 42%, respectively. For Democrats, the label preference in 2019 was 68% pro-choice to 29% pro-life, compared to 58% pro-choice and 33% pro-life in 1995.

The Trump Administration’s stance on abortion

Source: Axios

Since Donald Trump became the US President, his administration has been staunchly anti-abortion. Much focus has been directed at Planned Parenthood, said to be the largest provider of abortions in the country, though the organization says abortions only make up 3% of the services they provide. In a September letter to his supporters during the 2016 campaign, Trump vowed to defund Planned Parenthood.

In August 2019, Planned Parenthood left the government-funded Title X program because of a rule the Trump administration had set in place. The new regulations, known as a “gag rule,” forbid any group within the Title X program from recommending abortion as a method of family planning. Withdrawing from the program meant Planned Parenthood lost access to hundreds of millions of dollars the government sets aside for family planning. 

The Trump administration similarly supported a so-called “global gag rule” that blocked funds for international groups that provide abortions or advocate for the right to have an abortion.

In that same 2016 letter to supporters, Trump also promised to nominate “pro-life justices to the U.S. Supreme Court.” That promise was kept in the form of conservative Justice Brett Kavanaugh, appointed in October 2018. It is unclear where conservative Justice Neil Gorsuch, also appointed by Trump, stands on abortion as he has never ruled on a case directly related to the issue.

American Christianity and abortion

On a range of issues, Trump explicitly courted Evangelical Christians in his 2016 campaign for the presidency. As he seeks re-election in 2020, Trump is still hoping to secure that vote, in large part by appealing to those within the group who are pro-life or anti-abortion. On January 24, 2020, Trump became the first sitting US president to speak at the annual March for Life anti-abortion rally.

While a number of anti-abortion groups are rooted in Christianity – including the Catholic-based National Right to Life Organization and Lifewatch, Taskforce of United Methodists on Abortion and Sexuality – polling has found American Christians as a whole do not uniformly identify as pro-life

The Pew Research Center did find that 63% of self-identified Evangelical Christians believe abortion should be illegal in all or most cases, as opposed to only 33% who believe it should be legal in all or most cases.

However, other Christian groups are less likely to be anti-abortion. American Catholics are about evenly split between those who believe abortion should be legal in all or most cases and those who believe abortion should be illegal in all or most cases. Most Protestants are 60% to 35% in favor of legal abortion. Black Protestants are split 52% to 42% in favor of legal abortion, and Orthodox Christians are likewise split 53% to 45%.

Those with no religious affiliation are in favor of legal abortion in all or most cases 73% to 23%.

Recent legal challenges to abortion

The Roe v. Wade decision created specific circumstances under which abortion was legal and kept the door open for states to create their own restrictions on the procedure.

Over the last decade, various states have enacted restrictions on abortion and abortion providers. These restrictions have been challenged in lawsuits and a series of appeals. Cases have originated in Alabama, Kentucky, Indiana, North Dakota, Mississippi, and Wisconsin, to name a few.  

The ultimate goal for pro-life advocates and politicians is to reach the Supreme Court and have Roe v. Wade overturned. That would open the door for states to outlaw abortion altogether. However, since 2016, the Supreme Court has routinely declined to hear abortion-related cases coming out of the states.

These cases have included challenges to various laws aimed at either making it more difficult for abortion clinics to stay open or more burdensome for women seeking abortions. For instance, in Texas, strict clinic restrictions passed in 2013 resulted in almost half of the state’s abortion clinics closing in the last decade.

A 2017 law passed in Kentucky requires doctors to perform ultrasounds and show the images to the patient before performing an abortion. After the Supreme Court refused to hear a case related to the Kentucky law, the law was permitted to stand.

Another controversial restriction, signed into law in Georgia in 2019, bans abortions after a “fetal heartbeat” can be detected, which is usually around six weeks. The Georgia law is similar to a 2013 North Dakota “fetal heartbeat bill” that was deemed unconstitutional, a ruling the Supreme Court allowed to stand. In October 2019, a federal judge blocked the Georgia law, which was due to take effect on January 1, 2020.

A case before the Supreme Court in 2020

This year, 47 years after the Roe v. Wade ruling, a newly conservative-leaning Supreme Court is set to hear a new case that some believe could effectively overturn the original ruling.

That case, June Medical Services LLC v. Gee, will be heard in March 2020 and relates to a Louisiana law that requires doctors who perform abortions to have admitting rights to a local hospital.

This case is similar to the 2016 case, Whole Woman’s Health v. Hellerstedt, in which the Supreme Court ruled that the law added unnecessary burdens to women without increasing their safety.

However, as the ACLU reports, states have passed 59 different abortion restrictions in 2019, which will likely open the door for more legal battles in 2020.