To Be or Not to Be a Mother: A Timeless Question with New Urgency

Posted in: Reproductive Law

On June 24, 2022, the Supreme Court, dominated now by a bloc of six arch-conservatives, overruled Roe v. Wade. Under the ruling in Dobbs v. Jackson Women’s Health Organization, the states are now free to make abortion illegal, and to shut down whatever abortion clinics still remain in conservative states. The decision was and will remain controversial.

The abortion issue has been much disputed from the moment Roe v. Wade was decided, although a significant majority of Americans support legal access to abortion, at least in the first trimester. Public opinion, in fact, has never run as strongly in favor of abortion as it does right now. Yet, in many states, abortion was severely restricted, even before this latest decision. A pregnant woman in these states—and soon in perhaps as many as half of the states—is (in effect) forbidden to terminate a pregnancy. By government fiat, that individual is ordered to carry her baby to term. Legal abortion will no longer be possible, except in cases where the pregnancy is life-threatening to the mother. Illegal abortion will become more common, as will interstate travel to seek abortion services in a friendlier state. But for some people, a state’s ban on abortion will result in a forced pregnancy and, if she and the fetus survive to term, a forced birth.

Many of those women, in states without legal abortion, will be poor; many will be Black or Brown; many will be minors. Women with money, time, and freedom of movement can, at least for now, escape to another state to exercise what used to be a constitutional right. People from Texas can go to New Mexico. Women in Indiana can cross the border into Illinois. Many will do this, though some states have indicated they intend to pass laws trying to prevent this type of travel. But many who would have sought an abortion in their home states simply will not be able to travel to find care. The legislatures of “right-to-life” states are willing, even eager, to force pregnant women, whatever their age, class, or race, to go through pregnancy and give birth. Only days after the Dobbs decision was issued, media reported a story of a 10-year-old pregnant rape victim who was denied an abortion in her home state of Ohio under the state’s draconian new law that had just taken effect. Some of the state laws go to great lengths to ban all abortions; they have no exceptions for pregnancies caused by incest or rape; and certainly not for hardship, poverty, or the fact that the fetus is suffering from severe or even lethal defects that might lead to stillbirth or death shortly after birth.

Eugenic Ideas and American Law

Abortion law has a fairly long history. The opinions in Dobbs go into this history, in enormous detail. Lawyers and historians have documented the many errors the majority makes in its cherry-picked and sometimes erroneous recounting of history. But even if the facts they rely on were accurate, there is a way in which the majority simply fails to get the story right. Arguably, the intellectual and political background of abortion law is almost the exact opposite of what drives the antiabortion movement today. Criminal abortion bans in the United States date to the late nineteenth century in many states. Prior to that time, abortion was hardly regulated at all. But the movement to impose criminal bans had a social connection to the eugenics movement. The point of the movement was to prevent the wrong people from giving birth—people who were considered criminal, or degenerate, or feeble-minded. It was not to force them to carry a baby to term; but not to carry it in the first place.

At the time, the eugenics movement was flourishing. It had many backers in high places; and it was considered, by many scholars, to be supported by the lights of modern science. The basic idea was simple: research showed (it was thought) that crime, perversion, “feeble-mindedness” (a term commonly used in laws at the time), and general rottenness, were genetic traits; they ran in families; they were handed down from generation to generation. As we elaborated in more detail in a prior column, there was an entire field of “science” devoted to proving that these various traits were hereditary. Although many are familiar with the horrific eugenic practices in Nazi Germany, those ideas originated in the United States. Degenerates multiplied like rabbits, or so the eugenicists argued. Unless something was done, the country might be swamped with them. Society needed reproduction to be centered among the respectable; among good people, educated people, people healthy in body and mind. The eugenics program thus had two prongs: to encourage the right people to have babies (positive eugenics); and to prevent the wrong people from having children at all (negative eugenics).

One way to shut off the supply of bad babies at the source was to sterilize their potential parents—those likely to produce bad seed. Indiana passed the first sterilization law in 1907. It applied to residents in state institutions. If a “committee of experts” felt it was advisable, “confirmed criminals, idiots, rapists and imbeciles,” could be sterilized. California’s sterilization law was enacted in 1909. California was one of the most enthusiastic states in this dubious business. Thousands of young Californians, in state hospitals, were sterilized before 1940. Sterilization laws were controversial; but they were mostly upheld by the courts. The Supreme Court weighed in in 1927, in the notorious case of Buck v. Bell. Carrie Buck, who was white (and poor), was said to be the daughter of a feeble-minded woman, to be feeble-minded herself, and the mother of a feeble-minded child. The Court, in a short and snappy opinion, gave its approval to Virginia’s sterilization law. As Oliver Wendell Holmes put it, “three generations of imbeciles are enough.” Sadly, the burden of these laws fell mostly on poor women and women of color, who were sterilized on the basis of the flimsiest evidence, or no evidence at all. Carrie Buck, in fact, was a woman of normal intelligence; and so was her daughter.

In addition to the involuntary sterilizations that were authorized by law, many women were sterilized against their will and sometimes even without their knowledge by doctors who simply implemented their own social beliefs with a scalpel. The “Mississippi appendectomy” is a term used to describe the practice common at some teaching hospitals in the South of giving poor, black women hysterectomies without informed consent.

In addition, state legislatures took steps to tighten their marriage laws. Some states eliminated so-called common-law marriage. These were informal marriages—no witness needed; no marriage license—that were perfectly legal in many states. The problem was that the state had very little control over these marriages. The “newer” marriage laws now piled on formalities, including blood tests, and the marriage codes made people ineligible to marry if they had certain traits or diseases believed (often incorrectly) to be heritable. The general point was to prevent unfit people from marrying (and presumably having children). In Washington State, for example, under a law passed in 1909, no “common drunkard, habitual criminal, epilectic,” and no “imbecile” or person who was “feeble-minded;” or who had a venereal disease, was entitled to get married.

Old and New Bans on Abortion

This was the negative prong of eugenics. And while it certainly made life difficult for many individuals, it did not have much overall effect on the birth rate. The positive prong of the eugenic program was more difficult to implement than the negative prong. You could hardly insist (say) that graduates of elite colleges had a positive duty to get married and produce as many babies as possible. That was clearly not feasible. But one small step was possible: a crack-down on abortion. Indeed, laws against abortion became more restrictive in the late nineteenth century. There were many reasons for this development, but eugenic ideas were at least partly responsible. There were prominent abortionists who catered to upper-class women. The most notorious, perhaps, was the woman who called herself Madame Restell, in New York City, who lived in a mansion and charged high prices to her wealthy clients. Madame Restell and other abortionists were accused of a kind of crime against traditional America—white Protestant America. The lower classes, it was felt, were producing baby after baby; middle-class women on the other hand were killing or preventing babies from being born. This was one of the cardinal sins of abortion; it was weakening the stock of good, solid American babies.

The modern abortion controversy could hardly be more different. Eugenics no longer has any scientific credibility. Sterilization laws have been repealed or struck down. The class and race issue in the abortion controversy has been, in a sense, turned upside down. The abortionist is no longer someone like Madame Restell, catering to upper-class women who refused their duty of becoming a mother. Today’s abortionist is a medical doctor, working for Planned Parenthood, or in another clinic, and using a procedure or a medication that is both safe and effective. The burden of abolition has fallen, and will fall, not on rich women, but on poor women and minority women, particularly as the cost and distance necessary to travel for care will both skyrocket. And those same groups will be the ones with more forced births—added on top of the disproportionately high rates of maternal mortality and morbidity they already suffer due to inequity in our healthcare system. And the core of the movement to abolish abortion is a moral and ideological cluster of ideas, which are in essence, deeply religious, and which are spearheaded by those religions that are traditional and dominated by men. Indeed, male domination, and resistance to the women’s movement, is at least implicit in some aspects of the anti-abortion movement.

The Use and Misuse of History by the Supreme Court

No Justices of the Supreme Court say, or are willing to say, that they are opposed to abortion because, according to the dictates of their faith, abortion is murder. What they can and do say instead is that Roe v. Wade was incorrectly decided (the Court’s abortion jurisprudence is explored in more detail here). Abortion, according to the majority opinion, has no basis in constitutional law. That body of law provides “no support … for a constitutional right to obtain an abortion.” Moreover—and this is crucial for the majority—“a right to abortion is not deeply rooted in the Nation’s history and tradition.” This may be true; but is obviously irrelevant. Are equal rights for women “deeply rooted” in American history and tradition? Not at all. Nor is racial equality “deeply rooted” in history and tradition. Modern civil rights law is precisely a rejection of the main line of American history. If the only rights the Court is willing to recognize are those that are “deeply rooted” in history and tradition, not much would be left of modern free speech jurisprudence, or due process of law.

Supreme Court decisions on matters of constitutional law almost always dip into the jungle of legal history. Conservative justices insist that constitutional decisions must be historically grounded, that is, based on the text of the Constitution, the Bill of Rights, the Fourteenth Amendment, or whatever clause is at issue. But rummaging around in the past is rarely enlightening. The legal history of abortion, as we indicated, provides very little guidance for today, because the context in the past was so different from the context of our times. Indeed, history points if anything in the opposite direction from Dobbs. No court today, including the Supreme Court, would accept a statute that allowed people to be sterilized against their will without, at the very least, an exacting process to determine the need for it. Yet in 1927, in Buck v. Bell, the Court accepted an approach to involuntary sterilization that showed total disregard for the individual’s bodily autonomy and right to reproduce. Overruling Roe v. Wade is, in a way, resurrecting the mindset of Buck v. Bell. It allows the state to control women’s bodies in an analogous way: by forcing women to carry unborn children to term against their will. If we accept the idea that Buck v. Bell is no longer good law, then it is hard to accept the idea that a state should be able to make a woman’s choice to terminate her pregnancy a crime—certainly not at the point when the “preborn child” is a small clump of cells.

Justice Alito, after claiming that abortion is not “deeply rooted” in our history and tradition, goes on to say that, on the contrary, “an unbroken tradition of prohibiting abortion on pain of criminal punishment” was the norm up to the time of Roe v. Wade. The tradition was hardly “unbroken”—before the enactment of the criminal abortion bans, abortion was either unregulated or banned only well into the second trimester. But what is more significant is that the tradition rested on legal and social bases which were, as we tried to argue, substantially different from the legal and social concerns of today.

The plain fact of the matter is that Dobbs is a political decision; it is a decision that pleases the religious right; and which pleases one political party much more than the other. (It terrifies many others.) To be honest, most key decisions of the Supreme Court are political decisions. They come out of political contexts, and they have political and social consequences. Justices are nominated and confirmed in our times because the President who nominates them expects them to make the kind of decisions the President wants. Historical evidence does not provide solutions to hotly contested issues, especially when it is constructed by those with an agenda and without the training to decipher historical evidence. The majority in Dobbs called Roe v. Wade “egregiously wrong” from the start. It is entirely possible that some future Court will pin that label on Dobbs.

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