Roe v. Wade: Fifty Years After

Roe v. Wade

SERIES EDITORS

Catherine Clinton

Jim Downs

ADVISORY BOARD

Zaheer Ali, The Lawrenceville School

Stephen Berry, University of Georgia

Alexis Coe, New York City

John McMillian, Georgia State University

Nell Irvin Painter, Princeton University

Clay Risen, New York Times

Blain Roberts, Fresno State University

Nicholas Syrett, University of Kansas

Heather Ann Thompson, University of Michigan

Roe v. Wade

Fifty Years After

EDITED BY

Rhae Lynn Barnes & Catherine Clinton

The University of Georgia PressAthens

© 2024 by the University of Georgia Press

Athens, Georgia 30602

www.ugapress.org

All rights reserved

Set in Garamond Premier Pro and ITC Franklin Gothic by Rebecca A. Norton

Printed and bound by Sheridan Books, Inc.

The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.

Most University of Georgia Press titles are available from popular e-book vendors.

Printed in the United States of America

28    27    26    25    24    P    5    4    3    2    1

Library of Congress Cataloging-in-Publication Data

Names: Clinton, Catherine, 1952– editor. | Barnes, Rhae Lynn, editor.

Title: Roe v. Wade : fifty years after / edited by Catherine Clinton and Rhae Lynn Barnes.

Other titles: Roe vs. Wade

Description: Athens : University of Georgia Press, 2024. | Series: History in the headlines series | Includes bibliographical references.

Identifiers: LCCN 2024008353 (print) | LCCN 2024008354 (ebook) | ISBN 9780820365688 (hardback) | ISBN 9780820365671 (paperback) | ISBN 9780820365695 (epub) | ISBN 9780820365701 (pdf)

Subjects: LCSH: Abortion—Law and legislation—United States—History. | Birth control—Law and legislation—United States—History. | Roe, Jane, 1947–2017—Trials, litigation, etc. | Wade, Henry—Trials, litigation, etc. | Trials (Abortion)—Washington (D.C.)

Classification: LCC KF3771 .R67 2024 (print) | LCC KF3771 (ebook) | DDC 342.7308/78—dc23/eng/20240224

LC record available at https://lccn.loc.gov/2024008353

LC ebook record available at https://lccn.loc.gov/2024008354

To all the everyday women—in this country and abroad—who fought for the right to have control over their own bodies and continue the struggle for reproductive freedom, for this generation and those who follow.

Contents

A Note from the Volume Editors

Acknowledgments

Introduction

Roundtable

Top Ten Articles

• How the Right to Legal Abortion Changed the Arc of All Women’s Lives, by Katha Pollitt

• Reproductive Justice, Not Just Rights, by Dorothy Roberts

• Reproductive Rights, Slavery, and Dobbs v. Jackson, by Jennifer Morgan

• ‘Caught in the Net’: Interrogated, Examined, Blackmailed: How Law Enforcement Treated Abortion-Seeking Women before Roe, by Leslie Reagan

• The Abortion Fight Has Never Been about Just Roe v. Wade, by Mary Zeigler

• The Reconstruction Amendments Matter When Considering Abortion Rights, by Peggy Cooper Davis

• The Racist History of Abortion and Midwifery Bans, by Michele Goodwin

• Supreme Court’s Selective Reading of U.S. History Ignored 19th-Century Women’s Support for ‘Voluntary Motherhood,’ by Lauren Thompson

• Letters From an American, by Heather Cox Richardson

• A Major Problem for Minors: Post-Roe Access to Abortion, by Tracey Wilkinson, Julie Maslowsky, and Laura Lindberg

Appendix A

Appendix B

Appendix C

Bibliography

Permission Credits

A Note from the Volume Editors

On December 13, 2023, the United States Supreme Court confirmed that it would consider the appeal of the controversial court case Food and Drug Administration v. Alliance for Hippocratic Medicine. The decision will come down before this book is released, highlighting the constantly shifting reproductive landscape in the United States after the reversal of Roe v. Wade in 2022.

The Alliance for Hippocratic Medicine (AHM) describes itself as uphold[ing] and promot[ing] the fundamental principles of Hippocratic medicine, including protecting the vulnerable at the beginning and end of life. The Alliance was incorporated in August 2022 and is headquartered in Amarillo, Texas.

The Alliance has claimed that the U.S. Food and Drug Administration (FDA) should not have approved mifepristone (also known as the abortion pill) in 2000 for early pregnancy termination. Mifepristone is currently approved by the FDA to be taken up to ten weeks during pregnancy. It is also routinely prescribed to assist and alleviate naturally occurring miscarriages. The AHM sought an injunction to remove the drug from the market nearly a quarter-century after its introduction and widespread use. As of the publication of this book, over half of all abortions in the United States are medicinal, using mifepristone. It has over a 99 percent safety rate.

On February 16, 2024, the Alabama Supreme Court issued a ruling declaring that embryos created through in vitro fertilization (IVF) should legally be considered as children. Many of the state’s IVF clinics have since paused services, and further court cases are likely to follow.

Acknowledgments

Bringing this book to fruition has been a collaborative endeavor. We are grateful to the extraordinary network of scholars who generously contributed to its realization.

First and foremost, we extend our heartfelt appreciation to Jim Downs, our series editor. Jim’s vision, guidance, and dedication has been instrumental in shaping this project from its inception. Jim, thank you for being a cherished colleague.

We are deeply grateful to Jane Kamensky, Annette Gordon-Reed, Gillian Frank, and Sinead McEneaney for their invaluable input on speakers during early planning stages. Their insights enriched the historical narratives we explored.

We extend our appreciation to the Hutchins Center for African and African American Research at Harvard University, particularly Henry Louis Gates, Jr., Abby Wolf, Velma DuPont, Krishna Lewis, and the 2022–2023 Cohort of Fellows, for their logistical support, facility donations, and encouragement. Their dedication to fostering creative intellectual engagement and promoting historical scholarship for the masses has been a source of inspiration throughout our journey. The Charles Warren Center for Studies in American History at Harvard University also materially supported this project. We particularly thank Walter Johnson and Tiya Miles for their on-campus contributions.

At University of Georgia Press, we are indebted to our editor, Mick Gusinde-Duffy, whose steadfast support and editorial acumen have been invaluable. We also extend our gratitude to Press Director, Lisa Bayer, for her exceptional assistance in bringing this volume to life. We are deeply appreciative of the contributions of Jarden Kazik Asser, Lea Johnson, and Jason Bennett at University of Georgia Press who worked tirelessly behind the scenes to ensure the smooth production of this work.

We express our heartfelt gratitude to our anonymous peer reviewers, whose insightful feedback and enthusiasm significantly enhanced our contextualization of this intricate history. We also acknowledge the invaluable contributions of the History in the Headlines board members, who have consistently demonstrated their commitment to scholarly excellence through their meticulous review assignments.

The work of Liz Reichman (J.D., M.A.), lecturer at the University of Texas in San Antonio, who meticulously prepared the state-by-state appendix and Joseph Malcomson (M.A.), who methodically shaped the bibliography, have been instrumental in refining this work and its accessibility.

Fiona de Londras gratefully acknowledges the support of the Leverhulme Trust through the Philip Leverhulme Prize.

Rhae Lynn Barnes extends her appreciation to the History Departments at Princeton University and Harvard University and the University’s Committee on Research in the Humanities and Social Sciences for their support. Marissa Nicosia, Jenni Ostwinkle Silva, Elizabeth A. Steele, and the Barnes Family have been steadfast sources of encouragement, joy, and care of all kinds throughout this endeavor. Their faith in the meaningfulness of our work have been a driving force.

Catherine Clinton expresses her profound gratitude to her husband, George Ward Byers, and her sons, Ned Colbert and Drew Colbert (who called to support and console when Dobbs v. Jackson was announced). She also extends her appreciation to the University of Texas in San Antonio: Nicole Poole, Administration Services Officer, and Professor and Chair Wing Chung Ng of the Department of History. Her heartfelt thanks go to the Denman Chair for its generous funding, and she is especially grateful for the supplemental support provided by Professor Jason Yeager, Associate Graduate Dean, and Professor Glenn Martinez, Dean of the College of Liberal and Fine Arts. Finally, Catherine appreciates the junior colleagues in her patria chica: Ali Atabey, Cindy Ermus, Abraham Gibson, and especially Jorge Felipe Gonzalez, whose enthusiasm and dedication to historical scholarship inspire confidence in the future and the next generations of historians making headlines.

Roe v. Wade

Introduction

On January 22, 1973, the United States Supreme Court, in a landmark decision that reverberated through American society, affirmed a woman’s constitutional right to abortion. Jane Roe, a pseudonym, v. Henry Wade, District Attorney of Dallas County was a historic victory secured amidst the burgeoning Women’s Rights Movement. Roe promised a future where women could control their own bodies. It seemed to herald a new era of gender equality, granting women autonomy based on the post-Civil War Fourteenth Amendment (1868) to the United States Constitution born of American slavery and emancipation.

This landmark decision made over half a century ago, enshrined women’s reproductive rights. It introduced a woman’s legal right to privacy and established suitable periods for when the planned termination of pregnancies might be permissible—within the first trimester. Although much of the actual language in the decision revolved around technical and legal jargon, women’s rights activists—nationally and globally—believed Roe was a significant victory and beacon of progress in the women’s liberation campaigns, as an essential step forward for reproductive freedom, gender equality, and bodily autonomy.

With the ruling of Dobbs, State Health Officer of Mississippi v. Jackson Women’s Health Organization on June 24, 2022 (see Appendix B), legal, feminist, and reproductive rights experts experienced a terrible boomerang. The results of this decision, reversing the Roe v. Wade ruling and setting precedents for nearly half a century, threw U.S. legislators and women’s rights activists into newly contested terrain. The war over rights (women’s versus fetal) has gained enormous significance in the 2020s and has contributed to an escalation of the culture wars within the United States, which is evident in an increasingly polarized political landscape. Tracing the meaning and impact of the Roe ruling and subsequent developments will put some legal, medical, and moral issues into sharper relief.

In this groundbreaking volume, a team of renowned scholars, historians, and public intellectuals explores the centuries-long struggle for reproductive freedom in the United States. Together, they delve into the tumultuous and intricate history of abortion in the United States, tracing its evolution from an open and common practice in colonial and nineteenth-century America to a hushed and often illegal taboo in the mid-twentieth century to a central battleground in the culture wars and in the fight for gender equity. Probing the legal, social, cultural, and political landscapes that shaped the abortion debate, the authors study the factors that fueled the decades-long struggle for reproductive freedom and the seismic shift that followed the Dobbs decision.

The volume unravels the complex interplay of race, class, geography, sexuality, and intersecting identities, revealing how these factors have shaped access to reproductive healthcare and the power to determine one’s own bodily autonomy. It also delves into the far-reaching international implications of the struggles for reproductive justice, highlighting the global impact of American policies on women’s rights abroad. Roe v. Wade: Fifty Years After offers a profound understanding of the forces that have shaped reproductive rights in the United States, illuminating the path ahead in the pursuit of reproductive justice for all.

History in the Headlines had this volume already in the planning stages when the Dobbs decision was handed down. Reflecting on the historical circumstances that have developed over the past half-century since the landmark Roe ruling, confronting the issues surrounding these challenging times has preoccupied millions of Americans, most notably young people, who are dramatically affected by these issues. The flurry of attention on abortion and its history has been staggering. Disinformation from the media, combined with the incomplete or inaccurate education of most Americans on reproductive matters, has led to a search for balance amid seismic shifts, a struggle with myths and misogyny going full tilt within our current political climate, the new post-Dobbs.¹

Our goal in this book was to bring together a round table of historical, legal, and cultural experts. We sent invitations to a diverse group, including those who identify as men and women, with a focus on their diversity of thought, the institutions where they work and serve, their age, race, sexual orientation, their country of origin, whether they are mothers, and the socioeconomic conditions in which they grew up. While many experts could not participate because they were called up to serve, among other capacities, as expert witnesses and key scholar-activists in the aftermath of Dobbs, we were fortunate to have a vibrant and engaging panel in September 2022 and are joined in writing by authors whose robust articles may be found in this book.

We invited scholars cognizant of the transition from a reproductive rights movement to the reproductive justice campaigns of the 1990s and onward.² This shift had become a significant critique of the women’s rights movements of an earlier generation, particularly among those who regarded the Roe ruling as a penultimate victory. For instance, the perception of Margaret Sanger, who was heralded as a foremother of reproductive rights activism, has been drastically reevaluated by examining her views on race and eugenics during her long career.³ Thus contextualization has modified a single focus on issues of birth control and abortion. The innovative work of scholars on sterilization in twentieth-century America has altered and expanded our appreciation of the complexities of the term control in any birth control debate.⁴

Black reproductive justice advocate and scholar Loretta Ross suggests: Neglecting to make the link between race, rights, and reproduction, the pro-choice movement has always insufficiently analyzed how political activism by communities of color particularly alarms opponents of civil rights, Indigenous rights, women’s rights, gay rights, etc.⁵ As the mainstream reproductive rights movement often neglected issues of central concern for BIPOC (Black, Indigenous, and People of Color) women, reproductive justice advocates emphasized a more comprehensive range of legal reform and social justice. Subsequently, a more inclusive agenda was devised as the movement expanded.⁶

This book was created for an inclusive audience of all readers interested in understanding the recent history of sex, reproduction, and abortion in the United States in the decades since Roe. We want to emphasize that this book is for a broad audience, not limited to individuals who identify as women or those who were already aligned with the pro-choice stance before the Dobbs decision. While the freedom and access to abortion hold cataclysmic importance to those who do not want to or cannot carry a pregnancy to term, studies have shown that abortion affects the entire family, especially whether children will face the consequences of poverty.

In the immediate wake of Roe, maternal mortality during abortions declined. Thirty-nine women are known to have died from unsafe abortions in 1972. This was almost certainly a drastic undercount.⁷ Yet, using the same measure, there were only 3 such deaths in 1975, and over 40 years later, just 0.5 percent of women who undergo abortions require hospitalization for complications.⁸

A cadre of feminists and a significant portion of the American public welcomed the Roe decision, believing it would usher in a new era of civil rights and equality for U.S. women. The anti-abortionists launched an immediate call to arms. This movement reinvigorated its dramatic opposition to a woman’s right to terminate her pregnancy, labeling their efforts as Right to Life or Pro Life. Feminists countered with a Right to Choose or a Pro Choice stance. The stage was set for a battle royal between advocates of a woman’s right to control her body, particularly in terms of reproduction, and the forces that wanted to limit, if not eliminate, a woman’s access to abortion (rebranding their position as fetal rights). Political alliances were forged, and belligerent rhetoric followed. Saving the lives of the unborn became the focus of the pro-life movement, outweighing concerns for pregnant women.⁹

During the late 1970s and early 1980s, Protestant evangelicals and the religious right began to unite with Catholic pro-life campaigners to form a unified front against secularization within American culture, particularly concerning the acceptability of abortion as a woman’s right. The pro-life crusaders had been somewhat separated along a North versus South divide, which shifted dramatically in the decade after Roe. As Daniel K Williams argues, . . . many of the southern states that liberalized their abortion laws in the 1960s and early 1970s are now at the forefront of movements to restrict abortion.¹⁰

In some cases, pro-life extremists resorted to murder to advance their cause. When zealots took up arms, the battle became a nightmarish scenario.¹¹ The year 1993 ushered in horrific episodes of domestic terror related to abortion in the United States. On March 10, 1993, Dr. David Gunn was murdered in Florida by three gunshots to his back outside of the Pensacola Women’s Medical Center. Five months later, on August 19, 1993, Rachelle Shannon shot Dr. George Tiller, a physician who headed the Wichita Women’s Health Care Services. (He survived but was assassinated in 2009, dying after being shot in a church.)¹² In December 1994, a rifleman attacked abortion clinics in Brookline, Massachusetts.

Harassment and violence continue down to the present. In a recent study, 60 percent of abortion doctors who experienced doxxing¹³ had their medical board files posted to anti-abortion websites, nearly 90 percent had their photographs posted, and 41 percent had their private contact information and residence posted. In some cases, doctors had their social security numbers made public.¹⁴

Pregnancy has long been associated with women’s primary roles and patriotic duty. Birth rates varied according to class, region, and race throughout American history, but there was a steady decline from the American Revolution onward. Scholars suggest that white American women reduced family size, with more significant decreases in the northern colonies compared to the southern regions, during the eighteenth and nineteenth centuries. This decline was startling because women were expected to be fruitful and multiply, and the new nation was eager to expand westward and repoplulate. Indeed, the Founding Fathers prescribed that republican mothers in the early national era must be committed to rearing liberty-loving sons.¹⁵

At the same time, the forced reproductive labor of enslaved Black women meant steadily increasing populations of Black children, often through violent sexual encounters beyond their control as Black enslaved women were legally unable to consent when an enslaver owned their bodies. In 1662, Virginia passed Act XII or the Enactment of Hereditary Slavery Law that read that all children borne in this country shall be held bond or free only according to the condition of the mother. Not only would any child born to an enslaved Black woman be born enslaved, they would be enslaved for life. This forced reproduction was seen as a necessary part of American slavery which resulted in a Black-majority population in South Carolina. By 1720, enslaved Black Americans had become a self-repopulating captive labor force in the colonies that would become the United States. This was in stark contrast with other slave societies like Jamaica where sexual violence was rampant, but their staple crops like sugarcane which were dangerous to cultivate meant the enslaved were worked to death (rarely living beyond seven years on a plantation) where the labor force was constantly replenished by newly kidnapped and trafficked West Africans. Due to this mass forced reproduction, Black women sought private means—especially through healer knowledge of herbal remedies—to control their fertility and reproduction.

Within the young republic, marriage was becoming more affective and, in some instances, less transactional. Mortality rates were also declining, and thus fewer children meant the possibility of improved quality of life. Contraception during this era could depend upon both partners. Studies of Quaker couples in early America show that women relied on cooperation and mutual benefits to improve their relationships and reduce pregnancies. This pattern would emerge for white middle-class Americans in the nineteenth century.

One of the significant transformations of the century can be attributed to women exercising greater control over reproduction. The average birth rate of 7.04