Nov 30, 2021

Abortion rights and Roe v. Wade

Photo: Fibonacci Blue
Photo: Fibonacci Blue

The law as we know it could be ripe for change.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.” Today is a special edition on the upcoming Supreme Court challenge to Roe v. Wade.

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I was inspired to write today’s newsletter not just because of the upcoming challenge to abortion rights, which will go full throttle on Wednesday morning, but because of my realization that many Americans — myself included — are woefully ill-informed about abortion law, Americans' beliefs on abortion, the historical context of this challenge and how the U.S. generally fits into the global abortion rights picture. Observing the discourse about any topic as sensitive as this one can be frustrating or even frightening. But I’ve found that — perhaps because of the stigma around abortion, the sensitivity of the topic, or the propaganda from both sides — there is a noticeable degree of ignorance about the law (and the history) on this issue that does not exist in other areas.

On Wednesday, the Supreme Court will begin hearing arguments in Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe v. Wade and Planned Parenthood v. Casey, the two Supreme Court rulings that have mostly defined the Constitutional right to abortion in the United States. If the state of Mississippi wins the case, depending on the nature of the justices’ ruling, it could effectively end the Constitutional right to abortion and pass the job of regulation over to the states, many of which are prepared to immediately limit when, how and where abortions can happen.

The Mississippi law is called H.B. 1510, or the Gestational Age Act, and was passed in 2018. It bans almost all abortions after 15 weeks with exceptions for medical emergencies and severe fetal abnormalities, but not for rape or incest. Its Supreme Court review comes just on the heels of the six-week abortion ban that took effect in Texas (the Texas law is being challenged over its enforcement structure, and is not a direct challenge to the Constitutional right to abortion). Jackson Women's Health Organization, the single licensed abortion provider in Mississippi, challenged the law, arguing that it is unconstitutional under Supreme Court precedent set in Roe v. Wade and Planned Parenthood v. Casey, which — among other things — does not allow bans on abortion before a fetus is viable (usually around 24 weeks). On the other side of the case is Thomas E. Dobbs, the State Health Officer of the Mississippi Department of Health.

Given the intense convictions Americans hold on abortion, the fascinating history of abortion rights, and the complexity of the challenges to the Constitutional right to abortion as it stands now, I thought we'd dedicate today's newsletter to explaining precisely what's going on. I am not planning (or expecting) to change anyone's mind on this issue, nor am I interested in debating the moral or political positions around abortion (though that time will surely come). But I am hoping to resolve some of our unfamiliarity with the context and nuance surrounding this case that I've encountered.

This, as past Tangle explainers and special editions have, will take a different form than our usual newsletter — but heading into the historic arguments kicking off on Wednesday, and the ensuing debate about Roe v. Wade and abortion rights that will soon reach a fever pitch, you shouldn't have to read anything else to understand precisely what is unfolding. As always, we do not have nearly enough space to cover every significant twist and turn in this tale, but we have tried to elevate the most relevant and significant moments that got us to where we are today.

The history of abortion rights in America may not be what you think. When the United States first declared its independence, it essentially adopted abortion law as it existed in England. For the first decades of U.S. history, abortions were legal so long as they happened before "quickening," a time period when women could feel fetal movements, typically around 15 to 20 weeks into a pregnancy.

The first regulations on abortion began to pop up in the early 1800s. The motivations to ban abortions were not uniform. In 1821, a Connecticut law banned abortions and sought to punish anyone who provided abortion-inducing medicines to women. The case that inspired the law involved a sex scandal between preacher Ammi Rogers and Asenath Smith. Rogers impregnated Smith, but then reneged on a promise to marry her — saying he would do so only if she terminated her pregnancy. The details of what Rogers did are gruesome, but after several failed attempts to terminate Smith's pregnancy he fled. She later gave birth to a stillborn baby.

The resulting attempt to prosecute Rogers was fraught with difficulty. There was no clear statute banning abortion after quickening in Connecticut, so the state ended up imprisoning him for two years on sexual assault charges, even though many wanted to see him go to prison for much longer. Shortly after his sentence, in 1821, Connecticut passed a bill banning medicinal abortion after quickening, with prosecution targeted toward any person who provided the medicine. 20 years later, 10 of the 26 states had similar laws on the books.

In the 1850s, the American Medical Association began calling for the criminalization of abortion, which some chalked up to an effort to eliminate doctors' competitors like homeopaths and midwives. Some physicians, meanwhile, were motivated by their understanding of conception, which was improving: The quickening was found to be no more significant in the process of fetal growth than any other stage, and so they reasoned that if society deemed it unacceptable to have an abortion after quickening, it should be equally unacceptable to have an abortion before quickening, too.

At the same time, some Americans were worried about the rapid growth in the population of immigrants, and felt that declining birth rates among white, American, Protestant women could threaten the future of the country. According to some estimates, between 15% and 35% of all pregnancies in the 19th century ended in abortion. Others have said the number grew from between one abortion for every 25-35 live births in the early 1800s to one abortion for every 5-6 live births by 1850.

The prohibition of abortion — and of birth control options — accelerated quickly toward the end of the century.

In 1869, after centuries of distinguishing between a formed and unformed fetus, the Catholic Church announced a ban on abortions at any stage of pregnancy, something it hadn't done at any time before then (with a brief exception between 1588 and 1591). Shortly after, the Comstock law effectively banned the distribution of abortion-inducing drugs — the most popular way to terminate a pregnancy — via U.S. mail. By 1900, abortion was a felony in every state, with limited exceptions to save a woman's life or terminate pregnancies caused by rape or incest.

At the same time, though, abortions were becoming increasingly available and common, which many historians have attributed to concurrent bans on birth control. In the 1930s, despite being illegal, an estimated 800,000 abortions were performed per year by licensed physicians. That's roughly equivalent to how many abortions occurred in 2017, despite there being around 65 million women living in America in the 1930s compared to 160 million in 2017.

The pre-Roe challenges to abortion prohibition were numerous, and as the women's rights movement gained steam in the 1960s they took on a new momentum. Once again, Connecticut was thrust into the spotlight. Gerri Santoro, a 28-year-old Connecticut woman, died in 1964 while obtaining an illegal abortion. A police photo of Santoro's body — bloodied, naked, and lying face down on the floor of a motel room — became an abortion-rights symbol; a famous representation of the risks of illegal abortions.

Santoro's story was representative of a larger issue: Despite being a safe procedure when performed by well-trained doctors, the stigma and illegality of abortions left many women seeking out unsafe abortions from "abortion quacks" who used rudimentary tools and poor hygiene. Illegal procedures around the time of Santoro's death have been pegged at anywhere between 200,000 and one million per year, though the numbers are obviously obscured by how many women hid their abortions. Still, tales of women being rushed to hospitals or emergency rooms with serious or life-threatening injuries from illegal abortion procedures were common.

These stories threw gas on the reform movement's fire. In the mid-1960s, physicians were once again leading a charge to change abortion laws — this time, many doctors wanted to expand access to legal abortion, and garnered support from the American Law Institute, which helped craft reform bills. By 1970, the Supreme Court had already struck down a law banning the distribution of birth control to married couples, saying it violated a right to their privacy protected under the constitution. That year, Hawaii became the first state to legalize abortion. Then New York. By the early 1970s, several states had made abortion legal, and nearly half of all states were adopting or considering reforms to abortion law.

In 1969, Norma L. McCorvey discovered that she was pregnant with her third child. McCorvey wanted to have an abortion, but at the time, Texas law only allowed them in cases of rape, incest, or if the mother's life was in danger. McCorvey was counseled by her friends to falsely assert she had been raped, but instead she opted to try to have an illegal abortion — before discovering the facility she’d heard about had been shut down.

When McCorvey sought out legal advice on what to do, she found an attorney who helped her begin the process of putting her child up for adoption, but also introduced her to Linda Coffee and Sarah Weddington, who decided to bring a lawsuit forward on her behalf. McCorvey went by the alias "Jane Roe," and the suit claimed that she had a right to obtain a safe abortion in her state. Lower courts agreed, ruling that the current law violated her right to privacy under the Ninth Amendment, and was unconstitutional.

The case was appealed to the Supreme Court, where it arrived in 1970. It went through a series of fits and starts, being argued and re-argued, before the court handed down a 7-2 judgment on January 22, 1973. In its decision, the court said the Texas law had violated Roe's right to privacy, citing the First, Fourth, Ninth and Fourteenth amendments, and the Constitution's protections of "zones of privacy." Court precedent had found that contraception, marriage, and child rearing fell into these zones of privacy, and concluded that the zone was "broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."

However, as with many rights, the court also made it clear that the right to abortion was not unlimited. The court attempted to address the states' interest in protecting the mother's health and "protecting the potentiality of human life," the two issues it viewed as being at odds with each other.

In perhaps the most controversial element of its ruling, the court resolved this tension by creating the trimester framework, declaring the first trimester to be a period of time when a woman's right to abortion was unlimited, a decision solely between her and her doctor. During the second trimester, up until fetal viability, the court argued that the state can create reasonable regulations on the procedure but cannot ban it. But once fetal viability is reached, the time when a fetus can survive outside the mother's womb, the state can protect its interest in potential life and regulate (or even ban) the procedure.

In 1992, the court heard Planned Parenthood vs. Casey, and reaffirmed that states cannot ban abortion before fetal viability, a time period pegged at about 24 weeks of pregnancy. But Casey also did away with the trimester framework, and instead replaced it with an "undue-burden” test, a ruling that opened the door for states to regulate abortion at all stages of pregnancy as long as those regulations did not create an "undue burden" or major obstacle to exercising the right to get a pre-viability abortion.

That ruling has set the stage for H.B. 1510, the Mississippi law that will be argued before the court on Wednesday morning.

Five years ago, when Donald Trump was running for president, he made a promise to Americans: If he was elected, he was going to nominate Supreme Court justices who would strike down the Constitutional right to an abortion. Shortly after being elected, President Trump — and the pro-life movement that had been laying the groundwork for this moment — struck gold. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all placed on the court, creating a 6-3 conservative majority and adding three justices whose past opinions gave newfound hope of overturning the rulings Roe v. Wade and Planned Parenthood v. Casey.

On Wednesday, those hopes will be tested.

A federal district court blocked the state of Mississippi from enforcing their law because it banned all abortions after 15 weeks, well before the point of viability. When the state asked the Supreme Court to hear their challenge last spring, it took 13 private conferences among the justices (an unusually high number) before they announced they would take up the case. When Mississippi initially petitioned the case, it was not asking the court to overturn Roe or Casey, but by the time it filed its brief on the merits it was explicit: Roe and Casey were "unprincipled decisions" that "damaged the democratic process," the court's image, the national discourse and the law.

Fundamentally, Mississippi's argument is that overturning Roe or Casey is not a ban on abortions, but a way to allow Americans to resolve the question on their own through the democratic process, state by state.

The state's biggest obstacle is likely stare decisis, an established concept in law that a court should follow its prior precedent. In this case, the precedent covers nearly 50 years of rulings, with abortion regulation as it is today normalized and consistent across the country. But the state is arguing that stare decisis is at its weakest when courts have interpreted the Constitution, because such interpretation means democratically elected branches cannot address the ruling with anything but a constitutional amendment. In this case, Mississippi is also arguing that there is no specific right to abortion in the text of the Constitution and no general right to privacy, either, making the Roe and Casey rulings "egregiously wrong" — which meets the standard required to reverse precedent.

The state has said that the court is giving special treatment to Roe and Casey, harming the court's credibility, and that by overturning those rulings it would emphasize that the Constitution leaves most issues to the people, putting the question back to the states and leaving it up to the democratic process.

Under Roe and Casey, the state has said abortion restrictions have remained unclear, arguing that applying heightened Constitutional tests like undue-burden has only convoluted what is legal and what isn't. Given that the undue-burden test does not give proper weight to a state's desire to preserve unborn life or protect maternal health, it's nearly impossible to apply uniformly. Further, the state has argued that Roe is based on assumptions that are now out of date — we know more about what a fetus looks like and when it can feel pain. Birth control and adoption are far more available now than they were at the time of Roe, meaning a woman now has greater control over when she gets pregnant and what happens if she does.

Even if the court wants to stop short of overruling Roe and Casey, citing a Constitutional right to abortion, Mississippi is also arguing that there is nothing to suggest abortions should be linked to viability, which is an artificial distinction. The state argues that a baby is "highly dependent" for survival on others after both viability and birth, rendering the distinction essentially meaningless. Once the viability element is removed it's clear there is no undue burden. Jackson Women's Health Organization is the only abortion provider in the state, and it only provides abortions up to 16 weeks of pregnancy, so a ban on abortions after the 15th week would not create an undue burden on abortion in the state.

Jackson Women's Health Organization is arguing that precedents laid out in Roe and Casey are far too entrenched to be overturned now. Casey specifically, the clinic argues, is "precedent on top of precedent" — having not just answered the question of whether the viability framework is correct, but also resolving the question of whether it should be abandoned. In order to overturn that ruling, Jackson has argued, the court would have to determine the analysis in Casey was "egregiously wrong."

Further, Jackson has responded to the state's argument about the court's legitimacy by saying that overturning Roe and Casey would be what actually damages its credibility, rather than sustaining it. Such a move would show the court is "representing nothing more than the preferences of its current membership," rather than upholding precedent that bars dramatic changes in law or fact that do not exist in this case. On the contrary, the clinic argues that two generations of women now depend on that precedent for the legal availability of abortion, and it has only been further cemented by having become critical to gender equality. Additionally, the clinic says, the only facts that have changed are that abortions are safer now than they were when the case was first decided.

Jackson has also argued that the words "abortion" or "pregnancy" do not need to appear in the Constitution in order for these protections to exist. What Casey and Roe showed, the clinic says, is that abortion and pregnancy are key issues of bodily integrity, personal autonomy, and private matters of family, medical care and faith that are clearly preserved by deep Constitutional roots. The right before the court is a question of whether women have the ability to decide for themselves if, when and how many children they bear.

On the state's argument around the undue-burden test and the viability rule, the clinic has also responded. It has argued that the Supreme Court doesn't need to consider the undue-burden test here, because this case is not concerning a regulation on abortions but a ban on abortion before viability. The viability rule has been enforced for decades with uniformity and predictability, the clinic argues, and the 23 to 24 week window of viability has remained the same even 30 years after Casey was decided. If the court were to abandon the viability rule, the clinic argues it would be "no different than overruling Casey and Roe entirely," leaving nearly half the states in the U.S. attempting to completely ban abortion with no tools left for concerned parties to address the litigation.

Finally, the clinic has also questioned whether the state is even asking to overturn Roe or Casey, noting its original petition only mentioned those outcomes in a footnote.

Deciphering what Americans believe about abortion is not easy. Public opinion polls appear to show a consistent desire by Americans to support abortion in most or all cases. Pew found 6 in 10 Americans believe abortion should be legal in all or most cases, and The Washington Post found Americans want the Supreme Court to uphold Roe v. Wade by something in the ballpark of a 2 to 1 margin. Yet, when pollsters dig deeper, things get more complicated. For instance: NPR found 77% of Americans support Roe. But in the very same poll, just 34% of Americans supported abortions in the second trimester, which Roe permits. In 2021, Reuters found that 47% of Americans supported making second trimester abortions legal, and an Associated Press poll showed 49% of all respondents supporting abortion for "any reason."

This, of course, is all further complicated by the well-documented biases in recent polls that have caused big misses in election predictions, almost always by failing to properly represent conservative opinion. Still, if the polls are to be believed, it appears that overwhelming majorities of Americans support early pregnancy abortions and abortions when the mother's life is in danger, while support dwindles and becomes either split or outright opposition the further into pregnancy you go.

If the court overturns Roe and Casey, the impact would be felt immediately. 21 states have already passed bans on nearly all abortions that would go into effect right away. In 2018, some 23 restrictions to abortions were passed across the U.S. In 2021, more than 600 abortion restrictions have been introduced and over 100 have already been passed. Even if the court were to simply weaken the precedents set in Roe and Casey without actually overturning them, it's likely that such a ruling would unlock sweeping change to abortion laws across the U.S.

Meanwhile, both the rates of abortion and the sheer numbers in the U.S. continue to fall. In 1980, there were about 30 abortions per 1,000 women between the ages of 15-44. In 2018, that number was 11.3 per 1,000 women. 92.2% of all documented abortions occur 13 weeks or fewer into the gestation period. Decreasing fertility rates, high availability of birth control, sexual education, and abortion restrictions have all been pointed to by various parties as the reasons abortion rates are falling.

Globally, the question of abortion law has been answered in many nations through the democratic process and not as an inherent right. In many European and Asian countries, abortion is available upon request, and the most common time limit is 12 weeks after the first day of the last menstrual period — or about 14 weeks after conception. Members of the pro-life movement have often pointed to these numbers as evidence the fetal viability rules in the U.S. are out of touch with public sentiment and inhumane even in the global context. Members of the pro-choice movement have countered that in most of those countries, health insurance guarantees easy access to abortions and covers the procedure — making it easier for women to get the care they need in a more timely fashion than here.

On Wednesday morning, all of these arguments will come to a head in front of the highest court in the land. As the debate unfolds, we'll continue to cover the case and explore some of the opinions and commentary that come with it.

Don't forget.

In honor of Giving Tuesday, one of the most charitable days of the year, Tangle will be donating 50% of all new subscription revenue and "tips" this week to Heavenly HRVST, one of my favorite charities that provides delicious shelf-stable meals to the hungry in New York City and across the east coast. If you want to support our work, now is a great time.

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Quick hits.

  1. President Biden addressed the nation about the Omicron Covid-19 variant yesterday, urging caution but not panic, and encouraging people to get vaccinated and get their booster shots. He said he does not plan to reimpose shutdowns or lockdowns. (The address)
  2. A federal court in Missouri has temporarily blocked Biden's vaccine mandate for health care workers, a ruling that will apply to 10 states. (The injunction)
  3. The CDC officially recommended that anyone above the age of 18 should get a booster shot to improve waning immunity to Covid-19 from initial vaccination. (The guidance)
  4. CNN anchor Chris Cuomo is under fire for reports that he helped his brother, former New York Governor Andrew Cuomo, look into women who were accusing him of sexual harassment. (The allegations)
  5. Vice President Kamala Harris and Transportation Secretary Pete Buttigieg will travel to North Carolina together to promote President Biden's infrastructure package. (The trip)

Have a nice day.

In California, a deaf high school football team has gone undefeated, advancing to the state championship and making a statement about what they can accomplish despite serious doubts from the sporting community. The California School for the Deaf uses ASL to communicate with each other and their coaches, and after 11 straight wins, the team is headed to the state championship game. "We communicate with American Sign Language (ASL) and I think honestly [for] the deaf players that's an advantage that we have. We are using our eyes 100% of the time we're more alert... especially on the field," Trevin Adams, one of the players, told ABC.

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