The Disintegration of Rights: A History of the American Abortion Debate

by Lorelei Links

You can find this article in the current herstory issue of wom*news!

Trigger warning for the discussion of abortion.

Here in sunny Queensland, we don’t enjoy the ability to exercise our right to reproductive autonomy by means of an abortion. In the United States, a landmark Supreme Court case called Roe v. Wade, 1973, established a constitutional guarantee that our American sisters could access that which we cannot. And yet, over the last six months, I find myself thinking more and more that I would rather be an unhappily pregnant woman here, and secure myself an illegal abortion, than be in the United States and seek out a legal one. The US has gotten way scary. Almost weekly we hear new horror stories of women being forced to endure traumatic circumstances due to the war on women’s rights that has been raging for 40 years. But we don’t live there, so what should we care, right? We should care, because this literally constitutes a violation of human rights (according to the United Nations) perpetrated by the Leaders of the Free World. Over decades when other civil freedoms have improved, the United States judiciary continues an unrelenting attack on women. The world is a scary place for all women when in a country which has constitutionally guaranteed your right to an abortion, the pursuit of that right still leads women to coercion, prosecution, emotional trauma, physical trauma and yeah, like, death.

 

Roe v. Wade established that a person’s right to privacy extended to their right to an abortion. This was probably the first mistake. The United Nations thinks that abortion is a human right under headings like women’s health, safe and respectful relationships, good community-building, and equality between men and women, but it was ‘privacy’ that stuck in the States. The Supreme Court meant privacy in the sense that the state should stay out of the home, and the women fighting Roe were looking to secure the ruling via any route, so they took privacy and ran with it. But ‘privacy’ misses the point – it’s not about the state being in or out of our bedrooms, it’s about a woman owning her uterus. This was going to become an issue later on. Roe also established the trimester system to determine the point at which a state’s interest could override its obligation to protect individual liberty. According to Roe, in the early stages of any pregnancy, the state had no legitimate interest whatsoever in getting all up in our bits. Oh how times would change.

 

No one even really cared about abortions being legal until about the mid-eighties. Unsurprisingly, the legalisation of abortions across the country didn’t lead to an epidemic of women rushing to their local clinic every day to fix themselves a fun dose of un-pregnancy. But in the 1980s, the New Right took hold of America, and scary shit started to go down all over the place. Women were one of their favourite targets. In 1989, the first ‘chipping away’ of Roe happened when Webster v. Reproductive Health Services failed to overturn a range of Missouri abortion access restrictions as unconstitutional. The restrictions included things like married women getting consent from their husbands, minors getting consent from their parents, a mandatory waiting period – the usual bullshit obstacles we see popping up all over the show these days, designed singularly to dissuade women from having abortions. 1989 was also a dark year for the women of America trying desperately to limit the frenzied abortion hate-speech; the Supreme Court failed to even address the Missouri law’s preamble, which referenced babies as “unborn children” and the made the unqualified declaration that human life begins at conception. This is as scary as the ruling itself – it was a huge win for the anti-abortion movement, which sought to attach connotations of ‘humanity’ to their staunchly anti-woman position and had just had that position as good as endorsed by the freaking Supreme Court. I bet I don’t need to tell you that that trend got out of control real fast.

 

In 1992, Planned Parenthood v. Casey changed the game regarding when the state could and couldn’t intervene in the abortion process. Casey took the onus off the state to prove that any barrier they imposed was necessary, and said instead that states just had to prove (if challenged) that a particular barrier did not constitute an “undue burden.” This has meant that states can get away with all manner of fucked up shit, like the mandated vaginal ultrasounds we saw in Virginia earlier this year, and forcing doctors to supply certain ‘information’ to their patients which can include things like how to put your baby up for adoption. It also scrapped the trimester system and basically told America that a baby was  a baby as soon as it was capable of surviving outside the womb (“viability”). With this, a whoooole bunch of women waved goodbye to their ability to access, uninhibited, early-term abortions.

 

In the mid-1990s, the hottest new target of the anti-abortion movement emerged. It was known as “partial-birth abortion”, and it reared its ugly head in 1996 and 1997 but was vetoed by President Clinton. In 2003, however, old mate George Bush Jr. adopted the policy as a personal favourite and passed the Partial-Birth Abortion Ban Act through congress. Despite being neither an actual medical term nor a single procedure, but rather a provocative term for a collection of rarely-performed late-term abortion methods, the Supreme Court stunned us once again by upholding the Act in Gonzales v. Carhart, 2007. Carhart was the first unconditional ban on an abortion procedure since Roe declared such a ban unconstitutional in 1973. And when I say unconditional, I mean unconditional – even in cases where “partial-birth abortion” might be deemed necessary to save the life of the mother, it’s 100% illegal in the good ole USofA. To add insult to injury, the majority opinion, courtesy of Justice Anthony Kennedy, explicitly cited the state’s responsibility to stop women making regrettable choices as the justification for the ruling. Yep. Women, according to Justice Kennedy, had to be protected from themselves. By endangering their lives. All-round champ Justice Ruth Bader Ginsburg had a thing or two to say about that when she wrote her dissent: “Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them.” She also pointed out the fact that for the first time “ethical and moral concerns”, unrelated to any discourse of rights, liberty, the preservation of life, or state responsibility, were being given priority in the Supreme Court. She blasted the majority opinion for likening ‘partial-birth abortion’ to infanticide and condemned their ill-concealed disdain for the Roe ruling of 35 years earlier. But of course, no one listened to Justice Bader Ginsburg, the only woman on the bench. And five years later, the menz are still doing us all kinds of favours.

So where exactly has 40 years of judicial debate gotten us? In March, the Governor of Alaska approved production of “Choose Life” license plates. In April, the Governor of Arizona declared that pregnancy starts two weeks BEFORE conception (wot). In June, the Michigan House of Reps introduced a bill that would essentially serve to shut down all abortion facilities in the state. Also in Arizona, doctors can legally lie to their patients about the health of a fetus if they suspect the truth might lead women to choose abortion. In Georgia, abortions have been banned beyond 20 weeks based on the “fact” that fetuses can feel pain at 20 weeks (NB: this is not a fact). In Texas, 24 hour waiting periods are mandatory and doctors are required by law to force their patients to not only view but hear a description of their mandated ultrasound, and in Utah you have to wait 72 hours for this privilege. Several states are also considering laws which will make it a prosecutable offense to ‘coerce’ a woman into having an abortion (although coercing a woman into a pregnancy is of course still fine). Shall I go on?

 

The short answer is the 40 years later, the United States has done nothing but regress on the issue of reproductive rights. The situation is dire. Frankly, if a woman living in a place where abortion is still illegal in some kind of bizarre nineteenth-century timewarp feels safer than a woman living in the land of the Free & Easy Abortion, something is very wrong. Get your shit together, America. It’s a slippery slope from here to the end of legal abortions altogether.

~ Lorelei Links

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