Abortionist, page 31
At the most basic, demographic level, legalization had a quick and profound effect on the lives of many heterosexually active females, both those who became unwillingly pregnant and those who did not. In fact, it elevated the status of all women, heterosexually active or not.
We can start with the fact that public health experts and other observers estimated in the mid-1970s that approximately the same number of abortions were being performed in the United States after legalization—between one and two million a year—as before Roe. But the difference in results was striking. The reproduction-related death rate plummeted after Roe, largely because of the sharp decline in self-induced abortions, the tactic of the most resourceless women in the country, the ones lacking money, personal connections, and basic information. (Between 1973 and 1976, poor women could count on public funding of the procedure through the Medicaid program.) Now women could plan an abortion in a legal, not a criminal, context. And this was hugely important: legalization supported a new medical environment that was (at first) safe, stable, and dignified, appropriate for individuals owed the benefits of full adult status and basic human rights. This innovation delivered a powerful message to all of society about the value of girls and women generally.
With the birth control pill available to many women beginning in 1960, the pregnancy rate also fell between 1960 and 1970, as did the marriage rate. During that period, women’s age at first marriage began a steady climb: today the median age for women is about twenty-eight, while in 1973 it was about twenty-one. Both of these trends were possible in part because with access to both the pill and legal abortion, women were far more able to separate sex, pregnancy, and childbearing. They were able to make marriage and other life decisions independent of these matters. Clearly, as more and more women chose to finish their education and get work experience under their belt before marriage, this innovation, too, had meaning for everyone.
In another life-course shift, this one a distinctive, if indirect, result of Roe, unmarried white girls and women largely stopped relinquishing their babies for adoption, keeping and raising their (formerly “illegitimate”) children. Thousands of girls and women reasoned something like this: if the law says I can decide whether to stay pregnant, surely I can decide whether to be the mother of the child I am giving birth to. This kind of reasoning yielded a dramatic increase in the number of white single mothers after Roe, which in turn caused a sharp decline in the number of white babies sent into the domestic adoption marketplace. The call for adoptable babies did not, however, decline. So adoption agencies, buoyed by white families comfortable with the idea of racially and culturally blended families in the wake of the civil rights movement, began to develop adoption opportunities around the globe to fill the need in the United States. Agencies targeted the poorest countries and the children of the most resourceless girls and women in these places. In fact, in the baby-sending countries the incidence of adoption became a measure of the powerlessness of certain groups of women. In this way, the new choices of many women in the United States depended on the choicelessness of other women around the world.
The rise of white single motherhood that followed Roe was a challenge to racist ideas about just which girls and women had sex and babies without having husbands; it became impossible to define this syndrome as poor Black behavior. And when whites joined Blacks in the ranks of single motherhood, together they stimulated the growth of various kinds of non-traditional families that proliferated in the 1970s. They contributed to diminishing the stigma attached to parenting the family you found yourself at the head of or making even the unconventional family you wanted. The practical impacts of all of these demographic shifts tended to improve the status of many women, again demonstrating both the direct and the indirect effects of Roe. Certainly, having the latitude to decide to be the mother of the child you give birth to and defining family in your own terms, regardless of a legally sanctioned relationship to a man, became marks of adult status and society’s acknowledgment of your human right to be a parent.
As I suggested, before Roe, many girls and women who had heterosexual sex could not reliably plan their marriages; neither could many plan their education or work lives, even after contraception became more widely available. (The Supreme Court decision Eisenstadt v. Baird [1972] established the right to contraception of unmarried women, on the same basis as married women.) Unintended pregnancy was always possible and unpredictable. For a hundred years (or for millennia, depending on how you calculate), employers and school officials had drawn on this vulnerability to treat females as dead-end students and unreliable employees who deserved lower pay. Given the possibility that female employees could become pregnant at any time and drop out of the workforce, male supervisors argued that women had limited use for education. They steered white girls away from career tracks and advanced study and pushed them toward preparation for white “women’s work,” including homemaking, retail sales, and low-skilled office jobs. Supervisors claimed that these kinds of jobs required less responsible workers and allowed white female employees to cycle in and out of the workplace without causing disruption.
For much of this “hundred years,” of course, women of color were educated and employed under an apartheid-like system, hemmed in by segregated, often severely underfunded schooling and restricted to agricultural and domestic employment with subsistence wages. By the end of the criminal era, in the late 1960s, the civil rights movement and subsequent legislation began to challenge racially segregated education and employment opportunities, although other contemporaneous policies continued to tar- get and punish women of color for sex-and-pregnancy as the Age of Roe dawned. And to this day, an apartheid-like wage system prevails, with Black women and other women of color paid considerably less than white men, men of color, and white women.
In the immediate pre-Roe period, several states legalized abortion with the support of an emergent, largely white women’s movement. (As I mentioned above, nonfeminist political interest groups also supported legal abortion: the groups that aimed to control “population explosion” and the groups determined to suppress the fertility of women of color—whom they accused of having valueless babies that were costing white taxpayers too much—were definitely not feminists. The membership and the agendas of these groups often overlapped.) With these early legalization successes under their belts, feminist activist groups and their allies went on to champion a number of other state and federal laws and judicial decisions that supported women’s reproductive rights. These included pairing the right to contraception for married women (established by the Supreme Court’s 1965 decision in Griswold v. Connecticut) with the same rights for unmarried women; the Roe decision; and the right to education and employment free of several forms of discrimination.
For example, Title IX of the Education Amendments of 1972 states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX specifically criminalized discrimination on the basis of “pregnancy, childbirth, false pregnancy, miscarriage, abortion, or related conditions, including recovery.” For nearly fifty years, this legislation has been extremely important for all girls and women in school, including those who might become pregnant, who are pregnant, or who have children.
Five years after Roe, the Pregnancy Discrimination Act (PDA) of 1978 prohibited “sex discrimination on the basis of pregnancy, childbearing, or related medical conditions.” A pregnant woman who might have sought an abortion before the PDA, because she worried that her pregnancy would lead to discrimination in the workplace, might now decide that her job was not threatened even though she was pregnant. Or an unwillingly pregnant woman might, in light of these new federal statutes, feel comfortable or hopeful in making the decision to terminate her pregnancy because Title IX protected her determination to get the education that would allow her to achieve economically secure motherhood or adulthood in the future.
In the context of these new laws and new protections, educational opportunities expanded after Roe, and so did work opportunities for all women and women’s earnings. Now millions more women were in the position to pay for contraception or an abortion or to support a child, conditions that, again, strengthened all women’s claims to adult status and human rights. It’s fair to say that these claims could not have been realized without the Supreme Court’s Roe v. Wade decision. Legalization of abortion not only facilitated the practical necessities of full membership in society but defined basic relationships and identities, too, in ways that clarified women’s status. For example, Roe implicitly acknowledged the fact that women do not intend to get pregnant most of the times when they engage in heterosexual sex, and indicated that women’s intentions as well as their legitimacy as sexual persons should prevail. Roe granted women a crucial degree of autonomy in relation to their sexual partners, who were not members of the decision-making dyad. And Roe rejected the argument that fetuses, from conception to birth, may be treated as separate, constitutionally protected persons under the law.
In addition, as sex, contraception, pregnancy, and abortion became topics of public concern and public policy, the secrecy and shame attached to these matters diminished, even as women’s bodies and sexuality became, so to speak, publicly visible and endless topics of public debate. Still, many women, unshackled from aspects of sexual shame, assumed a greater degree of social power and at least a semblance of sexual autonomy, both markers of adult status and citizenship potential.
Again, in the second half of the twentieth century these matters were still highly racialized—and used to define the meaning of being white and the meaning of being “not white.” White policy makers and politicians typically assessed sexual blame and shame according to race and maintained—and even intensified—the racialized value differences they assigned to the consequences of sex: the high status of the children of white women versus the reviled status of the children of women of color. These assessments were reflected in punitive welfare legislation and eventually in President Bill Clinton’s policy of “ending welfare as we know it.” They also impacted school- and hospital-funding policies, policing policies, and many other arenas.
Racialized assessments were also reflected in abortion-funding legislation, starting with the Hyde Amendment (1976), which denied federal funding to Medicaid recipients for one and only one legal medical service: abortion. These policies left millions of poor women without public assistance to care for their children and without access to abortion services. Many policy makers and politicians were enthusiastic about legislation that had the effect of making sex itself a class privilege. After all, a poor woman, like any other woman, who engages in heterosexual sex stands the chance of getting pregnant, and under the post-Roe, post-welfare regime, she might well be unable to afford either an abortion or a child. In this policy environment, many women became essentially choiceless, a status that powerful and vocal politicians argued was appropriate for this class of poor females, whom they considered, virtually by definition, to be bad choice makers. In this way, many poor women in the United States began to live in a “post-Roe reality” only three years after the monumental Supreme Court decision. The number of individuals living in this reality has grown considerably in the nearly fifty years since that time.
But women of color and some white allies strongly resisted this kind of intersectional bias (discrimination against a class of people because they were female, poor, and of color) early in the Age of Roe. The welfare rights movement, led in the early 1970s by Johnnie Tillmon, an African American woman, drew in part on the new dignity associated with women’s reproductive and other rights. Tillmon spoke for many when she emphatically rejected the idea that motherhood or sex should be a class and race privilege. She made a powerful, memorable case for the right of welfare recipients to human dignity, despite their poverty. Tillmon and others connected civil rights, human rights, reproductive rights, and the right to be a parent, a standpoint that the reproductive justice movement—led by Loretta Ross and her sister theorist-activists—further articulated from the early 1990s onward.
Roe also stimulated the birth of the feminist health movement, as activists rejected its core feature requiring a woman’s dependence on her physician as the guiding participant in her abortion decision. Roe positioned the physician as a confessor before whom the female patient was a supplicant and, she hoped, a convincing confessant. The women’s health movement rejected this view of “privacy” and supported women’s full-throated self-definition in the medical arena generally. Movement activists argued, again and again, in many ways, that the right to privacy is impossible where women lack what the cultural critic Deborah Nelson has called “a secure public identity,” an identity that cannot be achieved simply in privacy.
After Roe, millions of people linked “consciousness” of women’s subordination with the political project of claiming women’s rights. Certainly, Roe v. Wade fueled burgeoning women’s movements of many kinds. In sum, the early demographic, practical, and political consequences of legalizing abortion strongly suggested that its recriminalization would be impossible without devastating the status of women, newly elevated in the late twentieth century.
Nevertheless, many people in the United States saw women’s new reproductive (and other) rights as constituting a cosmic threat to male privileges, to the sanctity of the family, and to the proper order of society. This sense of threat, expressed in an increasingly regressive political culture in the decades after Roe, structured an enduring backlash against the Court’s decision. As some Americans began to think of legal abortion as the centerpiece of social and religious crisis in the United States, women’s sexual and fertile bodies were once again defined as the source of and solution to the country’s problems.
A critical mass of politicians and policy makers made that case in at least three powerful ways. First, drawing on persistent white racism, Republican politicians (with some Democratic participation) developed the Hyde Amendment and argued continuously, through additional laws, policies, academic studies, and public pronouncements, that a girl or woman’s race and class legitimately marked her as possessing either reproductive rights or reproductive duties. A middle-class white woman rightly had relatively easy access to the products and services she required to manage her fertility. A poor woman of color simply had the duty to constrain her sexual and reproductive life or face various punishments. In this way, white racism was effectively reinforced through reproductive law and policy in the years after Roe, in part through the legalization and institutionalization of racially inflected meanings of reproductive “rights” and “duties,” of “legitimate” and “illegitimate” motherhood.
Second, Republican politicians recognized not long after Roe that opposition to legal abortion was an important path to sustaining and extending their power. The Democratic Party had long been the political home of many Catholic voters, whose religion opposes abortion. After Roe, Republicans could productively appeal to these voters—and the growing number of Christian evangelicals in their party—with religion-based objections to abortion. They condemned the Court’s decision as a Democratic accomplishment, even though a number of key Republicans, such as New York senator Jacob Javits, Oregon senator Robert Packwood, and Massachusetts senator Edward Brooke, were leaders in the fight to legalize abortion, which they saw as an expression of individual liberty and small government. By the time that Ronald Reagan (a former abortion-rights supporter) was elected president in 1980, he and his fellow Republicans were effectively arguing that a vote for a Democrat was simply a vote for abortion.
Third, in a related move, Republicans, with millions of new Catholic and evangelical voters on their side, built religious objections into the heart of their anti-abortion policies and politics. Over time they brought religion into the public square so fervently and frequently that its presence came to seem natural and eternal.
Having used their power and organized their base to focus on abortion as a sign of social blasphemy, Republican politicians, together with segments of their base, developed a raft of strategies to vilify abortion, abortion providers, and women seeking to manage their reproductive lives. These strategies especially targeted poor women of color, who, they calculated, could not stimulate the sympathy of the Republican base.
One of the Republicans’ most effective strategies was shepherding cases that could diminish Roe to the Supreme Court. Indeed, in 1980, Harris v. McRae upheld the Hyde Amendment, justifying its policy of withholding federal funds for even the medically necessary abortions of poor women. Justice Potter Stewart, overlooking the long-term impacts of slavery and of the subsequent employment, education, and housing laws that harmed persons of color and immigrants and kept them poor, explained that he supported the Hyde Amendment because the government is not responsible for a person’s poverty or for alleviating it. The government’s responsibilities, Stewart wrote, must be narrowly drawn: “[A]lthough government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation: Indigency falls in the latter category.”
At the end of the 1980s, in Webster v. Reproductive Health Services, the Court allowed the state of Missouri to base public policy on the theological concept that “life begins at conception.” This decision allowed the state to prohibit public employees and facilities for performing an abortion unnecessary to save the life of a woman, and to impose other abortion-limiting restrictions. Soon thereafter, with Rust v. Sullivan, the Court upheld federal regulations barring physicians at publicly funded family planning clinics from providing their patients with abortion counseling or referrals. Clearly, these and other decisions diminished Roe, especially as they targeted the choices of low-income women first and foremost, since this group would most likely be clients of public clinics.
