Introduction
The abortion debate in the United States has been one of the most contentious and polarizing issues in American politics and society for decades. Since the landmark Roe v. Wade decision in 1973, which established a constitutional right to abortion, the pro-choice and pro-life movements have been locked in a seemingly endless struggle. Many assume that the core arguments on both sides have remained largely unchanged over the years – a clash between the right to life of the unborn and a woman's right to choose. However, as legal historian Mary Ziegler reveals in her book "Abortion and the Law in America," the reality is far more complex and nuanced.
This book provides a comprehensive look at how the legal, political, and cultural landscape surrounding abortion has evolved since Roe v. Wade. Rather than a static conflict, Ziegler shows how both sides have continually adapted their strategies and arguments in response to shifting social attitudes, political realities, and legal precedents. By examining this history, we can gain a deeper understanding of how we arrived at the current state of the abortion debate and insight into where it may be headed.
The Foundations of the Modern Abortion Debate
To understand the modern abortion conflict, we need to look back to its origins in the 19th and early 20th centuries. Contrary to what many assume, abortion was not always illegal in the United States. In fact, it was generally permitted in the early 19th century up until the point of "quickening" – when fetal movement could be felt.
However, by 1880, most states had criminalized abortion. This shift was driven largely by racial and demographic concerns among the white Anglo-Saxon population. Birth rates among this group were declining while immigration from Southern and Eastern Europe was rapidly increasing. Anti-abortion advocates argued that restricting abortion access was necessary to prevent "inferior" genetic stock from overwhelming the country.
In the early 20th century, physicians and activists began pushing back against these bans, arguing that abortion was often medically necessary to save women's lives. As obstetric care improved in the 1940s and 50s, this justification became less compelling. Abortion rights advocates then shifted to arguing that legal abortion would improve women's overall physical and mental health.
Opponents countered by claiming abortion actually caused women emotional trauma and had no health benefits. By the 1960s, both sides began moving away from health-based arguments and towards rights-based claims. This shift was influenced by two key Supreme Court rulings:
Griswold v. Connecticut (1965) - Struck down a law banning married couples from using birth control, establishing a constitutional right to privacy.
Eisenstadt v. Baird (1972) - Extended the right to use contraceptives to unmarried individuals.
These cases laid the groundwork for framing abortion as a constitutional rights issue. Pro-choice groups began demanding the repeal of all abortion restrictions, arguing it was a fundamental right. Meanwhile, pro-life groups maintained that the Constitution already protected the right to life for unborn children.
This rights-based framing culminated in the landmark Roe v. Wade decision in 1973. The Supreme Court ruled that the right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This established abortion as a constitutionally protected right, albeit one that could be regulated by states after the first trimester.
The Post-Roe Landscape: A Shift to Cost-Benefit Arguments
While Roe v. Wade was a major victory for abortion rights supporters, it did not end the debate. If anything, it intensified the conflict by nationalizing the issue. In the immediate aftermath, pro-life groups rallied around the idea of a constitutional amendment to protect fetal rights – an approach they had previously rejected.
However, recognizing that amending the Constitution would be a long and difficult process, anti-abortion organizations also pursued shorter-term goals. They focused on limiting access to abortion through incremental restrictions, even if they couldn't outright ban the procedure. This strategy proved surprisingly effective, as lawmakers were quick to draft legislation restricting abortion access.
To justify these new restrictions, anti-abortion advocates had to move beyond simple rights-based arguments. After all, measures like banning public funding for abortions didn't actually prohibit the procedure. Instead, they began emphasizing what they saw as the negative consequences of abortion access.
For example, they argued that public funding for abortions was harmful to poor and minority communities. They tried to link the pro-choice movement to racist population control efforts, pointing out that Planned Parenthood founder Margaret Sanger had ties to the eugenics movement (despite her having died in 1966 and the organization being under new leadership).
This strategy bore fruit in 1977 with the passage of the Hyde Amendment, which banned Medicaid funding for abortions. This shift towards cost-benefit arguments was further reinforced by broader cultural and political trends in the late 1970s and early 1980s:
- Growing skepticism towards the welfare state
- The rise of small-government conservatism under Ronald Reagan
- The emerging alliance between the Republican Party and the pro-life movement
As anti-abortion groups increasingly focused on policy-based claims about the costs and benefits of legal abortion, pro-choice organizations were forced to adapt their strategies as well. Some maintained a purely rights-based defense, arguing that new restrictions violated the Constitution. Others, particularly feminists of color and socialist feminists, pushed for a broader agenda that included support for contraception, sex education, and childcare.
Eventually, major pro-choice groups like NARAL and Planned Parenthood began emphasizing the benefits of legal abortion, particularly for low-income, non-white, and disabled women. However, as the composition of the Supreme Court shifted and Roe seemed increasingly vulnerable, they would later reconsider this approach.
Family, Gender Equality, and Abortion in the Late 1980s and Early 1990s
As the 1980s progressed, the anti-abortion movement increasingly focused on what they termed the "costs" of abortion to the family unit. They argued that abortion disenfranchised men and that profit-seeking abortion providers exploited teenagers. This strategy was driven by several factors:
- A desire to strengthen ties with the Republican Party
- Concerns about potential electoral backlash against anti-abortion positions
- Uncertainty about the commitment of President George H.W. Bush to the pro-life cause
Pro-life attorneys recognized that they needed to prioritize laws that would help Republican candidates win elections while also surviving constitutional challenges. Family involvement mandates – laws requiring spousal or parental consent for abortions – seemed to fit this bill. These laws enjoyed popular support and were being implemented in many states.
Meanwhile, the increasingly conservative makeup of the Supreme Court led many to believe that Roe v. Wade might soon be overturned. This forced pro-choice groups to develop multi-pronged defensive strategies. They had to challenge new restrictive laws while also working to protect Roe itself.
Outside the courts, a new and more militant anti-abortion movement was emerging. Primarily composed of evangelical Christians, groups like Operation Rescue grew frustrated with the slow pace of legal and political change. They advocated for direct action, including blockading abortion clinics, even if it meant breaking the law.
The rise of Operation Rescue actually helped galvanize the pro-choice movement. It encouraged coalition-building among various abortion rights groups, allowing them to better coordinate their efforts. They portrayed Operation Rescue (whose leadership was mostly male) as misogynistic extremists who were hostile to women's rights.
In response to the small-government politics of the era, pro-choice groups increasingly emphasized that the government should stay out of personal decisions like abortion. They also began more explicitly linking abortion access to gender equality, an argument that would prove influential in future court cases.
This connection between abortion and women's equality played a crucial role in the 1992 Supreme Court case Planned Parenthood v. Casey. Many feared this case would overturn Roe v. Wade entirely. Pro-choice attorneys argued that forcing women to carry pregnancies to term could derail their education and career prospects, perpetuating gender inequality.
Ultimately, the Court's decision in Casey was a mixed bag for both sides. It upheld what it called the "essential holding" of Roe – that women have a constitutional right to abortion before fetal viability. However, it also upheld most of the restrictive provisions in the Pennsylvania law being challenged, including a 24-hour waiting period and parental consent requirement for minors.
The Casey decision highlighted the growing importance of cost-benefit arguments in the abortion debate. While the core right to abortion was preserved, the Court gave states more leeway to regulate the procedure as long as they didn't impose an "undue burden" on women seeking abortions.
The Clinton Years: A Brief Pro-Choice Offensive
The election of Bill Clinton, a pro-choice Democrat, in 1992 marked a significant shift in the political landscape. For the first time in over a decade, abortion rights groups found themselves playing offense rather than defense. They seized this opportunity to reshape the debate around abortion access.
Building on earlier work by feminist activists of color, major pro-choice organizations began framing their cause in terms of "reproductive justice" rather than just abortion rights. This broader agenda included:
- Access to safe and legal abortion
- Affordable contraception
- Comprehensive sex education
- Adequate housing
- Quality childcare
Groups like NARAL and Planned Parenthood also pushed for the repeal of abortion funding bans and advocated for including abortion coverage in proposed universal healthcare legislation.
However, this pro-choice momentum was relatively short-lived. Clinton's ambitious healthcare reform efforts failed, in part due to controversy over whether abortion would be covered. Moreover, the renewed focus on health-related arguments actually provided an opening for anti-abortion groups to regain influence.
Organizations like Americans United for Life (AUL) and the National Right to Life Committee (NRLC) began emphasizing claims about the supposed health risks of abortion. They accused the mainstream media and medical establishment of hiding the truth about the procedure's dangers. This strategy of challenging the credibility of pro-choice experts would become increasingly central to the anti-abortion movement in the years to come.
The Late 1990s and Early 2000s: Deepening Divisions
By the late 1990s, the gulf between the pro-choice and pro-life movements had widened considerably. The debate was no longer just about the costs and benefits of legal abortion – it had evolved into a fundamental disagreement over which experts could be trusted to measure those costs and benefits.
This new phase of the conflict crystallized around efforts to ban a specific second-trimester abortion procedure known medically as dilation and extraction (D&X). Anti-abortion groups dubbed this procedure "partial-birth abortion," a non-medical term coined by the National Right to Life Committee in 1995.
The debate over D&X highlighted the growing distrust between the two sides:
Abortion providers described D&X as a surgical procedure that removed an intact fetus from the uterus. Leading medical organizations like the American College of Obstetricians and Gynecologists (ACOG) contended that D&X was sometimes the safest option for women.
Anti-abortion groups claimed these experts were being dishonest. They described the procedure in graphic detail, arguing it was immoral and coarsened attitudes toward human life. They also insisted that prominent medical organizations like ACOG were not trustworthy, accusing them of simply parroting "politically correct" views.
In response to what they saw as biased mainstream medical organizations, pro-life groups began founding their own expert bodies, such as the Physicians Ad Hoc Coalition for Truth (PHACT). By challenging the credibility of established medical authorities that supported abortion rights, they sought to undermine the scientific basis for pro-choice arguments.
This strategy proved effective in damaging the reputation of the pro-choice movement. It raised questions about how courts should handle scientific uncertainty and disagreement among experts. Who should have the final say when medical professionals disagree on a scientific matter?
Pro-choice groups tried to counter these efforts by highlighting individual cases that demonstrated the need for procedures like D&X. They spotlighted women like Colleen Costello, a conservative Christian who chose to undergo a D&X procedure after learning her unborn daughter had a fatal neurological condition. Costello felt the procedure would have the least impact on her future fertility.
Despite these efforts, the anti-abortion movement achieved a significant victory in 2003 when President George W. Bush signed the Partial-Birth Abortion Ban Act into law. This marked a turning point in the abortion wars, cementing the central role that debates over science and expertise would play going forward.
The Obama Years: Hopes and Disappointments for Abortion Rights Supporters
The election of Barack Obama in 2008 initially seemed to herald a new era of progress for abortion rights. Pro-choice groups were optimistic that Obama would restore Medicaid funding for abortion and help pass legislation to codify abortion rights at the federal level.
However, these hopes were quickly tempered by political realities. Obama, prioritizing the passage of his signature healthcare reform legislation, insisted that the Affordable Care Act (ACA) would be "abortion neutral." In fact, to secure needed votes, he brokered a deal with anti-abortion Democrats that reinforced existing bans on federal funding for abortion.
This compromise did little to placate Republican opposition to the ACA. In the 2010 midterm elections, backlash against "Obamacare" helped Republicans take control of most state legislatures. This ushered in a new wave of state-level abortion restrictions, with an unprecedented number of new laws being passed to limit access to the procedure.
As the decade progressed, the rhetorical divide between the two sides of the abortion debate grew even wider:
Conservatives and pro-life groups argued that the ACA infringed on religious liberty and that Planned Parenthood prioritized profits over women's health.
Pro-choice supporters countered that anti-abortion activists were misogynists opposed to women's healthcare more broadly.
In response to these attacks, abortion rights groups increasingly focused on combating stigma around the procedure and emphasizing its benefits. New organizations emerged to fight for a broader vision of "reproductive justice" that went beyond just abortion access. For example, Black Women for Wellness advocated for a comprehensive approach that included access to:
- Abortion
- Birth control
- Prenatal care
- Maternity leave
- Childcare
The #ShoutYourAbortion campaign, started in 2015 by Amelia Bonow and Lindy West, encouraged women to share their abortion stories online to normalize the experience and counter shame and stigma. The hashtag was used over 100,000 times in its first 24 hours, demonstrating the power of social media to amplify pro-choice messaging.
The Trump Era and Beyond: A Return to Rights-Based Arguments
The 2016 election of Donald Trump came as a shock to many abortion rights supporters. Having assumed Hillary Clinton would win and appoint liberal justices to the Supreme Court, they now faced the prospect of an increasingly conservative judiciary that could potentially overturn Roe v. Wade.
Trump's appointments of Neil Gorsuch in 2017 and Brett Kavanaugh in 2018 to the Supreme Court shifted the balance decisively in a conservative direction. This led many to believe that the end of Roe was imminent.
In response to this new reality, both sides of the abortion debate began to adjust their strategies:
Pro-life groups, sensing victory was near, began to return to more explicit rights-based arguments. Rather than focusing on incremental restrictions, they pushed for outright abortion bans in many states, hoping these laws would provide vehicles for the Supreme Court to reconsider Roe.
Pro-choice supporters, fearing the loss of federal protection for abortion rights, began working to enshrine those protections in state constitutions and laws. They recognized that if Roe fell, the battle would shift almost entirely to the state level.
By 2020, the divide between the two sides had grown wider than ever before. Decades of arguing over the costs and benefits of legal abortion had left both camps deeply distrustful of the other's motives and expertise. The COVID-19 pandemic further exacerbated tensions, as some states tried to classify abortion as a "non-essential" medical procedure that could be restricted during lockdowns.
Looking to the Future: An Ongoing Struggle
As we look ahead, it's clear that the abortion debate in America is far from over. Even if Roe v. Wade is overturned, as many now expect, the conflict will simply shift to new battlegrounds. State-level fights over abortion access will likely intensify, and both sides will continue to seek ways to enshrine their positions in law.
What's certain is that the debate will continue to evolve, as it has for the past five decades. The arguments and strategies employed by both pro-choice and pro-life groups have never been static. They have always adapted to changing political, cultural, and legal landscapes.
Some key points to consider about the future of the abortion debate:
State-level battles will become even more crucial, especially if Roe is overturned.
The role of science and medical expertise will remain contentious, with both sides likely to continue challenging the credibility of opposing experts.
Broader issues like healthcare access, economic inequality, and religious liberty will continue to intersect with and shape the abortion debate.
New technologies, such as medication abortion and advanced prenatal testing, may introduce new ethical and legal questions.
The increasing polarization of American politics may make compromise even more difficult to achieve.
Conclusion: A Complex and Evolving Conflict
Mary Ziegler's "Abortion and the Law in America" provides a nuanced look at how the abortion debate has evolved since Roe v. Wade. Far from being a static conflict between unchanging positions, the struggle over abortion rights has been dynamic and complex.
Key takeaways from this history include:
The debate has shifted between rights-based and policy-based arguments over time, with both sides adapting their strategies to the political and cultural moment.
Cost-benefit analyses of legal abortion have played a crucial role in shaping both public opinion and legal decisions.
The conflict has reflected and influenced broader societal debates about family structure, gender equality, healthcare, and the role of government.
Trust in institutions and experts has become a central issue, with both sides challenging the credibility of opposing authorities.
The interplay between federal and state-level politics has been crucial in shaping abortion policy and access.
Understanding this history is crucial for anyone seeking to engage with or understand the current state of the abortion debate in America. It reminds us that the conflict is about more than just abstract principles – it touches on fundamental questions about American society, values, and governance.
As we move forward, it's clear that the abortion debate will continue to evolve and adapt to new circumstances. While the core disagreement over the morality and legality of abortion may never be fully resolved, the ways in which that disagreement is expressed and fought over will undoubtedly change.
What remains certain is that abortion will continue to be one of the most contentious and consequential issues in American politics and law for the foreseeable future. By understanding its complex history, we can better appreciate the depth of the divide and the challenges that lie ahead in finding any sort of common ground.