To Open The Sky
The Front Pages of Christopher P. Winter
Throughout the long history of this country, no woman of sound mind who wanted to carry her pregnancy to term has been forced under the law to end it.
The converse, however, has not always been true.
The Dispute over Abortion in the Home of the Brave & Land of the Free
Acrimony over the right to have an abortion arose about halfway through America's history. Before then, it was generally allowed until "quickening" — the time when movement of the fetus could be felt by the mother. The reasons it became controversial are complicated, but the resolution of the conflict lies in compromise: allow the woman, her family, and her doctor to decide early in pregnancy whether to keep the fetus, and add restrictions as the fetus develops until, in the final trimester, only dire circumstances1 will justify ending its life. This is essentially what Roe and Casey provide, and in my opinion they should remain in force.
Let's look at the history of abortion to see why. Here's a brief summary.
Abortion — defined as deliberately ending a pregnancy — has been practiced as long as human civilizations have existed — and is condemned in most religious traditions.
However, it is the Judeo-Christian tradition that matters most to Americans. In the Christian Bible, the New Testament says nothing about abortion. The Old Testament mentions but does not forbid it unless it harms the mother. It gives the example of a woman who intervenes in a fight between her husband and another man and is struck. If the blow causes her to miscarry, the other man owes her husband a fine. It is only if she herself suffers injury that the lex talionis — the law of an eye for an eye — comes into play. This tradition makes a clear distinction between the fetus as property and the woman as a person.
Induced abortion is also treated casually in the Bible. As one example of scripture, Numbers 5:11-31 advises that a man who suspects his wife of infidelity should take her to the priest, who will give her a potion to drink. If she was unfaithful, the theory goes, she will miscarry. As for the conundrum of when human life begins, the tradition is that it happens when the child, having been born, takes its first breath.
When the United States was formed, pregnancy could be terminated before "quickening" when movements of the fetus could be felt by the mother. This began to change in the 1800s, as medical societies clamped down to protect women's health (and to stifle the competition.) Few penalties were enforced for abortion until after the Civil War.
The 1916 founding of the nation's first birth control clinic in Brownsville, Brooklyn by nurse Margaret Sanger was the origin of Planned Parenthood3 and marked the start of a movement to liberalize abortion. In 1963, the Society for Humane Abortion was formed, providing women with information on how to obtain and perform abortions. The underground group "Jane" provided abortion services at changing locations in the Chicago area through much of the 1960s.
Political organizations were formed to oppose penalties on abortion providers. The first was NARAL (National Abortion Rights Action League) in 1969. Medical and legal societies, including the AMA, supported new laws protecting doctors from punishment when they performed abortions under strict hospital controls. Colorado in 1967 became the first state to decriminalize abortion when pregnancy originated from rape or incest, or when continuing the pregnancy would threaten the health of the mother.
In California, Governor Ronald Reagan faced a dilemma when the legislature passed the Therapeutic Abortion Act. He consulted his father, a surgeon, and also James Cardinal McIntyre, the Catholic archbishop of Los Angeles. The surgeon supported the law; the archbishop opposed it. The legislature dropped a provision allowing abortion for defects in the fetus, and Reagan signed the version that allowed it when the health of the mother was in jeopardy.
In 1970, Hawaii became the first state to legalize abortion of a non-viable fetus on demand, or of a viable fetus that threatened the mother's life. New York state repealed its 1830 law and allowed abortion until week 24 of a pregnancy. The Supreme Court in United States v. Vuitch (1971) upheld a Washington, DC law that allowed abortion to protect the life or health of the mother, deeming "health" to mean psychological or physical well-being. And in 1973 came the landmark ruling in Roe v. Wade.
Thus, legal abortion has a long historical tradition in the United States — although it was never legal on demand throughout pregnancy.
By the time Roe v. Wade made its way to the Supreme Court, abortion was illegal in all cases in 30 states, legal in certain circumstances (rape, incest, danger to health) in 16 states, and only totally legal in four (Alaska, Hawaii, New York, and Washington).4
Roe v. Wade, 410 U.S. 113 (1973), struck down a Texas law banning abortion on the basis of the right to privacy the Supreme Court held to be implicitly granted by the Fourteenth Amendment to the Constitution. The 7-2 ruling divided pregnancy into three trimesters, each lasting three months. During the first trimester, the decision of whether to abort a fetus was left to the woman carrying it, other adult members of her family (if any), and her doctor. In the second trimester, states could regulate abortion only in order to protect a woman's health. In the third, states could ban abortion as long as they allowed exceptions in cases when the mother's health was at risk. The 22 January 1973 ruling did not reduce the number of abortions taking place each year; that remained at about one million. However, it drastically reduced the number of women who died as a result of the procedure. As reported by Statista, the reported number of women who died as a result of an abortion procedure fell from 47 in 1973 to 2 in 2018.5 The numbers of such deaths that went unreported is of course impossible to know. According to the Guttmacher Institute, women who died as a result of illegal abortions typically were black, were more than 12 weeks pregnant and had self-induced in their own community.6
In 1992 came a successor case: Planned Parenthood of Southeastern Pennsylvania v. Casey Citation. 505 U.S. 833 (1992). This ruling arose because "the Pennsylvania Abortion Control Act of 1982 required: (i) that women seeking abortions must be given certain information at least 24 hours before the abortion was to be performed (the “24-hour waiting period”); (ii) for minors, informed consent of the parents, with a judicial bypass option when the minor could not obtain parental permission; and (iii) that married women seeking an abortion notify her husband of her intent. In the presence of a medical emergency, the Act exempted compliance to the above three provisions."
"The Supreme Court upheld the waiting period and the provision that minors obtain their parents' consent. It struck down the requirement for spousal consent, characterizing the issue as one of “liberty” rather than “privacy". Referring to cases including Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Carey v. Population Services International (1977), the Court put an emphasis on the liberty interests and decisional autonomy of the woman seeking an abortion."
Citing the value of precedent (stare decisis) in a law upon which the public had long relied, the Court retained the core principle of Roe that abortion pre-viability should be substantially unimpeded by regulation. However, it rejected Roe's rigid trimester standard in favor of a post-viability threshold because medical science had shifted the point of viability earlier in pregnancy and would continue to do so.
Polls consistently show significant support for access to abortion services. The support is lowest for cases of personal choice late in the pregnancy. This Gallup poll is illustrative; it shows little variation between 2003 and 2018, with approval ranging from 20% approval in 2018 for elective late-term abortion to 83% in 2018 if the woman's life is at risk early in pregnancy. Approval rates rise slightly from 2003 to 2018. This reference (linked at the bottom of the table) gives a lot more data.
This polling is reinforced by results taken in mid-May, after the leak of the draft ruling. Some 60% of Americans feel abortion should be legal all or most of the time. Conversely, 37% feel it should be illegal with exceptions (32%) or totally banned (5%). Support for keeping Roe v. Wade is at 63%: a drop from 2018 (71%), but still a solid majority.
Continuing the resurgence of a "pro-life" movement that began when Jerry Falwell and other evangelical leaders recognized its value as a recruitment tool, Donald Trump campaigned on a promise to appoint only Supreme Court justices who would overturn Roe v. Wade. His first opportunity came upon him taking the oath of office, because Senate Majority Leader McConnell had blocked any consideration of President Obama's nominee Merrick Garland, a judge on the DC Court of Appeals respected by both Republicans and Democrats, since Antonin Scalia died unexpectedly in February 2016. Trump nominated Neil Gorsuch, who was confirmed in April 2017 by a 54-45 vote, 51 Republicans and 3 Democrats voting "Aye." Trump's next opportunity came when Justice Anthony Kennedy announced his retirement in June 2018. Trump nominated Brett Kavanaugh in July and, after a lengthy and contentious hearing, he was confirmed by a 50-48 vote on 6 October 2018. Long-serving Justice Ruth Bader Ginsberg died on 18 September 2020 and Amy Coney Barrett, nominated on 26 September, became the third of Trump's choices to reach the Court when, confirmed by a 52-48 vote exactly one month later, she was sworn in on 27 October.7
Anticipating the reversal of Roe, a number of states passed what were called trigger laws. As the graphic from MSNBC's The Reidout tells us, 536 bills regulating abortion were introduced in state legislatures during 2022. These laws restricted abortion rights, often severely, but could not take effect while Roe remained in force. Thus, the nullification of Roe would trigger them. In 2018, Mississippi passed the Gestational Age Act (HB 1510), which prohibited abortion after fifteen weeks of pregnancy, except in case of medical emergency or severe fetal abnormality — well before the time of viability on which Casey (and Roe) depended. That law was challenged, setting the case on a route to the Supreme Court.
In May 2021, the Texas legislature passed an even more restrictive abortion law: Senate Bill 8. Governor Abbott signed it into law on 19 May. This law, known as the Texas Heartbeat Act, placed the limit on abortion at 6 weeks — when, presumably, a fetal heartbeat could be detected. It was the first time a limit had been set so early in pregnancy; many women do not even know they are pregnant by then. Another first was the method of enforcement: to skirt a ruling of unconstitutionality, SB8 provided that private citizens, rather than government officials, could bring legal action against anyone found to have provided abortion services. In effect, this law sets up a system of vigilante justice.
Not to be outdone by The Great State, Oklahoma's legislature on 19 May 2022 passed HB 4327: a law that would (with exceptions) ban abortion from the moment of fertilization. Governor Stitt has declared he wants to make Oklahoma "the most pro-life state in the country," but he has not yet signed it into law. The bill would depend on private lawsuits for enforcement, and would allow suing anyone who “performs or induces” an abortion; anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” including paying for one; and anyone who even “intends to engage” in either of the two actions above. (Perhaps Oklahoma has some "precogs" hidden away, a la Minority Report.) And in Missouri, one legislator has proposed making it a crime for anyone to travel out of state for abortion services.
On 2 May 2022, a draft opinion by Justice Samuel Alito (nominated by George W. Bush) became public. This draft laid forth a variety of reasons for overturning Roe v. Wade — such as the claim that it had been "egregiously wrong from the start" and was on a “collision course with the Constitution.” In the Mississippi abortion case currently before the Court, Dobbs v. Jackson Women’s Health Organization, the state's law (HB 1510) prohibits abortion after 15 weeks except in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Organization, Mississippi's only abortion clinic, filed suit in federal district court arguing that HB 1510 was unconstitutional. The district court granted a temporary restraining order and, after applying the viability standard of Casey, a permanent injunction. The Fifth Circuit Court upheld the district court. Dobbs filed for a writ of certiorari, and on 17 May 2021 the Supreme Court granted this — limited to the single question of whether all pre-viability restrictions on abortion are unconstitutional.
This chart comes from the Guttmacher Institute, which reports that:
The takeaway from this is that state restrictions on abortion access in anticipation of the reversal of Roe v. Wade have driven this upturn in the rate of abortions.
On 24 June 2022, the SCOTUS released its ruling on Dobbs in a 6-3 majority as expected. It closely resembles the leaked opinion, and explicitly repeals Roe and Casey.
How big a problem are unwanted children today?
Writing in The Conversation, Stacy Morford pointed out in 2018 that determining the number of children born unwanted is difficult. Asking before conception yields a higher number than asking after conception; she reports the percentages are 26% and 9% respectively. Another source reports that four million babies are born in the U.S. each year, and about 140,000 are adopted. If 26% are unwanted, that means most of the more than one million unwanted infants remain unwanted as children. Presumably, they end up in foster care. The Guttmacher Institute gives us numbers for 2011:
In addition, a 2019 study found the U.S. has the highest rate of children living in single-parent households. With relatively little disposble income, these households are not likely to be in a position to adopt.
A related question is how much it costs a family to adopt a child. As you might expect, many factors come into play and the cost veries over a wide range. International adoptions are the most expensive; the cost varies from $30,000 to $40,000. But here we're concerned with domestic adoptions. Per the Bundy Law Firm LLC, the cost to the family can run from zero for a foster-care adoption (because the state picks up the cost) to $10,000 for an agency domestic adoption involving two states. (However, Lucrece Bundy gives a more detailed breakdown in which an interstate domestic agency adoption runs $40,000 — with agency fees of $29,000.)8 So even the best case is likely to be costly.
The takeaway from all this is that placing and supporting all those unwanted children will impose a substantial burden on families, as well as on governments at all levels.
"If This Goes On..."
What will be the likely outcomes? That depends on what the goals of the pro-life movement are after they assess this victory, and on how strongly the majority asserts their authority in order to preserve a limited right to abortion services. Some of them are making noises about expanding services that support women. For example, South Dakota governor Kristi Noem vows to create a Web site that will guide them to these services. But as Joy Reid points out, the fourteen states with the strictest abortion restrictions also have the worst maternal and child health outcomes.
This points up the fact that making abortions harder to obtain has gone hand in hand with refusing to make support for the women having to bear additional children easier to get — or even possible to get, in many cases. There is now a lot of Republican talk about increasing support for women. This would be a sensible thing to do; but the record suggests it is nothing more than talk. (See the remark of Wendi Stearman quoted below.)
Another thing that has not changed is public support for access to abortion services. Texas, with its bounty on reports of abortion facilitators, is a particular problem. The Texas Heartbeat Law, which went into effect in September 2021, prohibits abortion after a fetal heartbeat can be detected — typically at 5 or 6 weeks into gestation. It permits abortion after that if the pregnancy threatens the health of the mother, but allows no exceptions in cases of rape or incest. Lawrence O'Donnell reminds us that Gov. Abbott, as he has before, replies to questions about abortion restrictions by vowing to eliminate rape. A Quinnipiac poll taken in mid-June shows the majority of Texans support a right to abortion, especially when pregnancy results from rape or incest.
So where will this lead?
The first thing to remember is that states restricting abortion the most are least likely to fund the support services required.
The next thing to remember is that the "pro-life" movement is not concerned only with ending abortion. In many places, it also aims to restrict or ban contraception, same-sex marriage, even interracial marriage. It is true that the wiser heads in the movement recognize a responsibility to propose ways of dealing with the problems that flow from increasing the number of births in this country — such as making paid parental leave and prenatal medical care widely available. But these measures will be expensive, and state legislatures can be expected to balk at assuming the costs. Mother Jones reminds us of this by reporting the discussion over HB4327 in Oklahoma's legislature. Note this telling exchange (emphasis added).
Before the Oklahoma House voted on the bill, Democrats pressed Republican State Rep. Wendi Stearman on the consequences of a ban beginning at fertilization. Rep. Stearman’s answers to questions about how the bill could impact IVF treatments or affect patients during the resulting litigation did little to clarify the potential impact of the bill. But she was crystal clear when Democrat Forrest Bennett asked how the state might support parents forced to have a child they do not want. “Most parents who seek abortions are already parents who know how much it costs to raise a child,” he said. “If they have no choice but to have that child, do you not agree that a state like Oklahoma, that values life so much, should do everything in its power including funding and financing that child if there is no choice?”
“No,” said Rep. Stearman, “I do not believe that is the state’s responsibility.”
If there is anything that characterizes the people demanding the draconian restrictions on abortion we have seen in recent years, it is their lack of thought about the consequences of such restrictions, and their refusal to bear any burden associated with reducing the impacts of such restrictions on the people most affected. There is also this: any person or group who declares that their goal is to protect unborn life must explain why they choose to ignore that life once it's born. Most, in my experience, will have no answer that is cogent. It is as Sister Joan Chittister told us in 2004:
"I do not believe that just because you're opposed to abortion, that that makes you pro-life. In fact, I think in many cases your morality is deeply lacking if all you want is a child born but not a child fed, not a child educated, not a child housed.
"And why would I think that you don't? Because you don't want any tax money to go there.
"That's not pro-life. That's pro-birth. We need a much broader conversation on what the morality of pro-life is."
History teaches us that, with respect to abortion rights in America, these things have always been true and will remain true now that Roe and Casey have been overturned:
Tearing down Roe will call down the furies on America9 as hundreds of thousands of additional unwanted children are born and hospitals, social services, and adoption agencies, inadequately funded, struggle to keep up.
Some number of additional women will die or be maimed as a result of illegal abortions they seek out of desperation. We may not ever know their number. If they are poor, which they most likely will be, they won't have access to any legal recompense.
No other issue, in my opinion, would be more likely in the near term to trigger widespread violence in this country.
As I noted above, all this makes the matter of how abortion should be regulated very complex. But when I ponder how this dispute should end, I conclude what I think should already be obvious to any thoughtful person:
Keep Roe and Casey in place. They represent a successful compromise on the subject of abortion rights.
Leave Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International in place to keep contraception legal and widely available, and pass laws requiring all insurers to cover it.
Expand funding for prenatal & child care, school nutrition programs, paid parental leave, Medicare & Medicaid, and adoption services.
Pass laws prohibiting the teaching of abstinence-only sex education for teenage children and young adults. Yes, even in home-schooling.
As I noted above, the contrast between those who call themselves "pro-choice" and those who call themselves "pro-life" could not be starker.
Pro-choice people are happy to see other women refuse to undergo abortion, as long as they themselves have options pre-viability.
Pro-life people insist that legal abortion should be as difficult to get as possible for every woman.
It is "Live and let live" versus "One rule for all."
Life is too complicated to fit "One rule for all."
Respect life. Keep compromise alive.
Buddhism & Shinto
Judaism & Christianity
History of Abortion
If This Goes On...
1 How do I define dire circumstances? In the standard way: a severe fetal abnormality, a threat to the life of the mother, or a pregnancy resulting from rape or incest.
2 One Hindu source says "The compassionate and humanitarian laws of abortions also give scope to a lot of abuse as is evident from the fact that India leads in the number of gender based abortions and the number of mothers who die due to abortions carried out in unsafe and unregulated environment."
7 Two things are noteworthy about these three new justices. The first is McConnell's blatant hypocrisy: he blocked President Obama's nominee by claiming (eight months before the 2016 presidential election) that it was too close to the election; then he rammed Trump's third nominee through just eight days before the next presidential election. The second is the comparatively poor quality of these nominees; that includes the quality of the answers they gave during their confirmation hearings. They lied when asked whether they considered Roe to be an important precedent.
8 Thie specific case she illustrates in the video adds up to $37,086. Obviously, anyone contemplating adoption must do their due diligence.
9 This applies absent funding for the other services I recommend: prenatal care and the rest.