Abortion and the Law in America:
Roe v. Wade to the Present
by mary ziegler
cambridge, 326 pages, $29.99
Ask a pro-life activist what he or she hopes to accomplish, and you’re likely to hear that the law should protect unborn human life in accordance with the principles of the Declaration of Independence and the Constitution. Ask a pro-choice activist the same question, and you’re likely to hear about the need to defend Roe v. Wade and the interpretation of constitutional rights it represents. But the shaping of abortion law in the United States during the last forty-five years has rarely involved conflicting rights claims or competing interpretations of the Constitution, nor even the question of whether to ban abortion. Instead, most Supreme Court cases on abortion have focused on abortion access and whether a particular restriction on abortion constitutes an “undue burden” on women who want one.
Likewise, Mary Ziegler’s Abortion and the Law. Whereas previous studies of abortion law have generally focused on high-profile abortion cases that involved competing rights claims—as was especially evident in Roe v. Wade (1973)—Ziegler’s account begins after Roe and concerns itself almost entirely with the hairsplitting minutiae of abortion laws that have been debated before the high court and hammered out in numerous cases over the course of decades. The Court decided, for instance, that requiring a minor to obtain parental consent for an abortion violated the Constitution—but requiring her merely to inform a parent or guardian did not. The Court decided that a state prohibition on partial-birth abortion was unconstitutional because its broad wording might affect other second-trimester abortion techniques, but a more precisely worded federal ban on partial-birth abortion passed constitutional muster. The Court ruled that a Colorado law prohibiting pro-life sidewalk demonstrators from approaching within eight feet of anyone entering or exiting an abortion clinic was constitutional, but a Massachusetts law creating a thirty-five-foot buffer zone around clinic entrances was not. To an outsider, these fine distinctions may have seemed arbitrary, and to a large extent they were, since they depended on split decisions that rarely could be predicted in advance and sometimes were decided by the slimmest of majorities.
Few activists on either side of the abortion debate wanted to prioritize these issues, but the lawyers recognized that if any change in abortion policy were to occur, it would be in the area of abortion access, not abortion rights. The first policy to reduce significantly the number of abortions in the United States—the Hyde Amendment—was passed without much notice from either pro-life or pro-choice activists. Before it was adopted in 1976, one-third of all abortions were funded through Medicaid. Although the two states with the highest number of abortions—California and New York—continued to pay for abortions through state Medicaid programs, the Hyde Amendment played a major role in reducing access to abortion for low-income women in much of the South, Great Plains, and parts of the Midwest, all of which regions have lower abortion rates to this day. But at the time, neither the pro-life nor the pro-choice movement was particularly interested in the debate over Medicaid funding for abortion—one reason the amendment was passed without much controversy in a largely pro-choice, majority Democratic Congress. Pro-life organizations in the mid-1970s were more invested in the campaign for an anti-abortion constitutional amendment, and pro-choice organizations found that warnings about poor women losing access to abortion had far less fundraising potential among their upper-middle-class constituency than did warnings that abortion rights would be taken away for all women. Both sides wanted to talk about rights rather than access. As a result, the lawyers—Americans United for Life on the pro-life side, NARAL on the other—debated the finer points of abortion access legislation, largely in isolation from their movements’ donors and activists.
Pro-life lawyers recognized the opportunity Planned Parenthood v. Casey (1992) presented to secure Supreme Court approval for modest state restrictions on abortion procedures. When the decision was issued, most pro-lifers considered it a stunning defeat for their cause. A case they had believed would result in the reversal of Roe v. Wade was instead used to reaffirm abortion rights, with Reagan nominee Anthony Kennedy—whom pro-lifers had thought was on their side—writing the decision for the five-justice majority. But while the activists were in despair, pro-life attorneys saw a silver lining: The Court had framed its defense of abortion rights not in the uncompromising constitutional language of Roe but in terms of protecting women’s social equality. In particular, the Court ruled, restrictions on abortion could not impose an “undue burden” on women.
For the next two and a half decades, pro-life lawyers appealed to medical authorities, public opinion, and legislatures to argue that restrictions on abortion—such as bans on partial-birth abortion, minimum-width requirements for abortion clinic hallways, mandatory waiting periods and information sessions for women seeking abortions, requirements that abortion doctors have admitting privileges at a local hospital, and numerous other proposals—protected women’s health and did not impose an “undue burden” on the exercise of their constitutional rights. The Supreme Court’s conservative justices were frequently receptive to these arguments, though most of the liberal justices were not. More often than not, the pro-life side lost in the high court, but as the Court became more conservative, pro-lifers occasionally won an unexpected victory. They secured Court approval for the national Partial Birth Abortion Ban Act, largely because of Justice Kennedy’s receptivity to their argument that the procedure was not medically necessary and would likely cause women regret—which meant that the ban was necessary to protect women. Pro-lifers also succeeded in passing numerous state restrictions on abortion, such as twenty-week bans, which were never tested in the Supreme Court, but stood because they seemed to conform to the “undue burden” standard.
The pro-choice movement was slower than the pro-life movement to focus on issues of access. Throughout the 1970s, 1980s, and even 1990s, the movement remained more concerned about perceived threats to Roe—partly because this was the issue that energized the mostly white, middle-class donor base of organizations such as NARAL. But in the twenty-first century, as African American–led organizations became more prominent in the “reproductive justice” movement and the demographics of abortion changed—as low-income and non-white women became the majority of those seeking abortions—the issue of access became a top priority for the movement. Reflecting this trend, the Democratic Party’s 2016 platform demanded a repeal of the Hyde Amendment, a pledge that played an even larger role in the 2020 Democratic presidential primaries. The abortion rights movement (which now calls itself the “reproductive justice” movement) is determined to roll back the restrictions on abortion access that the pro-life movement has secured over the past few decades. It has been largely successful in rebranding abortion as “healthcare” and marketing the movement as a quest to protect women’s health rather than merely women’s rights. The new framing appeals especially to women of color who struggle to afford healthcare; by contrast, the earlier framing reflected primarily the interests of the white middle class, who were less concerned about affordability than about threats to individual rights.
Ziegler argues that conflict between the two sides in the abortion battle will continue, no matter what happens to Roe v. Wade. If Roe is repealed, she says, there will be numerous state and national fights over access to abortion, as liberal states in the North and West expand abortion access and states in the South and Great Plains restrict it. If Roe is not repealed, the same fights about access that have characterized the conflict for the past few decades will likely continue. Neither side will achieve what it wants. Pro-lifers will not secure a constitutional amendment protecting human life from the moment of conception. Abortion rights supporters will not secure uniform access to federally funded abortions in every state (or if they do succeed in this, pro-lifers will repeal the policy as soon as they return to power). Ziegler does not believe that a compromise or a resolution is possible. But she does think that activists on both sides have been too quick to blame the Supreme Court for the conflict. Roe v. Wade, she insists, is not the cause of this polarization; divisive fights over abortion began before Roe, and they are becoming even more acrimonious, even as the legal battles over abortion now focus entirely on what exactly constitutes an “undue burden.”
One might have thought that changing the conversation from the absolute language of rights to the more negotiable field of access would offer room for compromise, but such is not the case. The two sides have continued to be as bitterly divided as ever—perhaps because their long-term goals have not changed, even if the subject of their political debate has shifted.
What can we conclude from this? Are pro-life and pro-choice activists doomed to go on fighting forever? Such is Ziegler’s view, but perhaps pro-life advocates can derive a more useful lesson by viewing her book as a warning to the pro-life movement, which has lost its early vision, but can still recover it with a change of course. In the early 1970s, as Ziegler notes, the pro-life movement was dedicated to protecting the unborn in the nation’s law, and in those days, the movement succeeded in attracting the support of a number of pro-civil-rights liberals, including a few prominent African Americans, because it was a human rights-based movement. Sometime in the 1980s, the movement’s lawyers lost hope of ever passing sweeping protections of human life, and they shifted their strategy toward regulations designed to restrict abortion access. They gained a few victories with this strategy, but they forfeited the rhetorical high ground. By focusing narrowly on access, the pro-life movement lost its appeal to a generation of Hispanic and African-American women who, according to public opinion surveys, are personally opposed to abortion. Pro-lifers may need to insist anew that their movement is not merely an effort to make abortions more difficult to obtain but is instead a human rights campaign to protect all human life, including the lives of the unborn and women facing crisis pregnancies.
Daniel K. Williams is a professor of history at the University of West Georgia.