WASHINGTON (CN) — With the expectation that the Supreme Court will overrule the landmark 1973 decision that enshrined abortion rights in America, vestiges of the laws from before Roe v. Wade are already beginning to resurface. Because of how the conservative right has reframed the issue over the last 49 years as one about morals instead of health care, however, the degree to which the post-Roe era will resemble its precursor is less certain.
Before 1973 the science was simply not there yet for there to be a medication option that would terminate a pregnancy, and, in states where surgical abortions were banned, illicit providers filled the vacuum. But even performed in back alleys, these procedures had public-facing consequences when they ended in women’s deaths.
“Roe was decided at a time when the harm of having an abortion ban was really in people's faces,” Louise Melling, ACLU deputy legal director, said in a phone call. “Doctors, for example, would talk quite movingly about what they saw in emergency rooms from people so desperate that they attempted self-abortions or they had illegal abortions. Women were winding up sterile. Women were dying at that time, and many people know somebody who was hurt because of the ban. ... There was a movement animated by harm as well as animated by visions of gender justice that drove Roe.”
Women’s health care was front of mind when Roe was decided, and the court framed the right around privacy. The ruling said that pregnant people and their doctors were protected by the Due Process Clause of the 14th Amendment to have the privacy to make a decision about whether to terminate a pregnancy.
How the abortion debate in this country became a moral and religious issue instead of a health care issue is rooted in the 1980s when conservatives were trying to ramp up support for Ronald Reagan. Their base was not animated by the movement defending racially segregated private schools but they were able to rally support around opposition to abortion.
“It was really in 1979 and then 1980 in that presidential election that abortion started to become part of an evangelical message that really was connected to its political utility in getting a Republican in the White House,” Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University, said in a phone call. “Since then it has crystallized as a moral and religious issue.”
Since legalizing abortion was first spurred by an effort to protect women from illegal medical procedures that put their health at risk, some in the anti-abortion movement have focused on the risks of abortions themselves — a position at odds with research that shows carrying a pregnancy to term is actually more dangerous than terminating it. An amicus brief filed in the challenge from Mississippi before the court by the Howard University School of Law Human and Civil Rights Clinic details these risks and the acute toll they take on women of color in particular.
“Due to this high risk of pregnancy-related death, receiving an abortion can be a much safer option than carrying a pregnancy to term, especially among women who lack access to healthcare or who already have medical issues,” Tiffany Wright, an attorney representing the university’s clinic, wrote in their brief. “A recent study found that banning abortions nationwide would result in a 21 percent increase in the number of pregnancy-related deaths overall and a 33 percent increase among Black women.”
The pinnacle of the movement to reshape the abortion issue is demonstrated in the leaked draft opinion written by Justice Samuel Alito in a direct challenge to Roe currently before the court.
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