Speaking in defense of a Texas law prohibiting abortion before the Supreme Court of the United States (SCOTUS) in the now famous case of Roe versus Wade, attorney Jay Floyd opened his oral arguments by saying, “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”
It was followed by a long silence —a pregnant pause — people shuffling papers, coughing, or clearing their throats, while the two lawyers arguing for abortion rights, Sarah Waddington and Linda Coffee, did their best to act cool. The remark was awkwardly sexist, even in 1971, when the seven justices (two seats were unfilled at the time), all white men, glared down furiously at a confused Floyd. Society had a long road ahead to overcoming gender discrimination, but one step in the process would come 13 months later, in January, 1973, when the SCOTUS, now with nine justices, would vote 7-2 that the decision to undergo elective abortion fit within the realm of privacy rights, provided by the US Constitution. Since that time, many of us in liberal states have taken this history to mean that access to abortion is now guaranteed to pregnant women, up to the 28th gestational week. That’s the beginning of the third trimester, the trimester framework being something that we on the medical side employ so often, such as telling you when it is okay or not to take certain medications. Given that the core principle of Roe v. Wade has been upheld for the past 48 years, plus recent news that the Biden Administration has put a temporary pause on a Trump era restriction of medication to induce abortion —the abortion pill— we might be tempted to think that we have only moved forward with the right to choose, but actually the past several years have seen abortion rights chiseled away in many US states.
With overwhelming majority votes in the state house and senate, the governor of Arkansas signed a bill into law this past March that would prohibit all abortions within the state, except in cases when abortion performed to save the mother’s life “in a medical emergency”, a term that doesn’t mean the same thing that it meant just after the Roe v. Wade decision. The same month, Arkansas also enacted a law requiring a women seeking an abortion to first view an ultrasound of the embryo, while South Carolina enacted a law prohibiting abortion after a heartbeat is detectable on ultrasound, similar to a law passed by Iowa in 2018. Detection of a heartbeat comes very early in pregnancy, typically, during a woman’s first visit to her ob/gyn to confirm that she is pregnant. Such heartbeat laws, thus are for the sake of keeping women from obtaining abortions at any time during pregnancy, and yet, even more extreme laws are on the books. Notably, a law passed by Alabama in 2019, not only criminalizes nearly all abortions performed “from the time that a woman is known to be pregnant” (as if an abortion could be performed on a woman whose pregnancy status is not known), but the language of the law equates the termination of pregnancy to mass genocidal acts that it mentions by name, including the Holocaust.
An injunction issued by a federal court in late 2019 has prevented the Alabama law from going into effect, at least so far, while the other recent rulings mentioned above have been struck down or challenged in court, or will face legal challenges soon, but they are among hundreds of laws enacted and attempted over the past decade. In the case of the Alabama law, the purpose is clearly to drive a legal challenge that abortion opponents hope will lead the SCOTUS to overturn Roe v. Wade. With many of the other laws, the effect is to chisel away at abortion rights, a process that began with Hyde Amendment of 1976, which mandated that Medicaid (the government health program that covers low income people) would not cover abortion costs. All of this pushback against abortion was enabled by a 1992 SCOTUS case, Planned Parenthood of Southeastern Pennsylvania versus Casey, less famous than Roe V. Wade, but no less important in terms of implications for your reproductive rights.
While the Planned Parenthood v. Casey decision upheld the core idea of Roe v. Wade —that the Due Process Clause of the 14th Amendment of the Constitution provides for a woman’s right to terminate pregnancy up to the time that the fetus becomes viable— the 1992 decision also provided a rationale for pushing back the cutoff point for non-therapeutic abortion from 28 weeks to earlier weeks, and for adding various obstacles aimed at making abortion more logistically inconvenient, more psychologically stressful, and more expensive for women. We’ll discuss Planned Parenthood v. Casey and the change in the cutoff point in part 3 of this series, but now let’s delve into the events leading up to the Roe v. Wade decision of two decades prior.
In late 1969 Norma McCorvey was a 22-year-old waitress, living in poverty, in Dallas, Texas, where she she worked as a waitress. Sexually abused as a teen by a relative, she was struggling with depression and substance abuse and had been pregnant twice before, both times giving up the babies for adoption. Seeking to terminate the pregnancy at a clinic, she was reminded that Texas prohibited abortion, except to save the mother’s life, based on a law passed back in the 1850s. A woman with some money could travel to a state where abortion was legal, or have a psychiatrist write a referral saying that the pregnancy made her a danger to herself, and take that referral to a sympathetic gynecologist, who would perform the abortion. A less costly option was travel to Mexico, where abortion providers were available, but many were unsafe. After reiterating her desire for an abortion at a family law center, where she’d been sent for adoption proceedings, McCorvey was referred to Linda Coffee, who recently had started working with an organization of recent law graduates and graduate students, headed by Sarah Waddington, that sought to get abortion legalized throughout the nation. The daughter of a Methodist minister, Waddington had been raised with conservative ideas, but, during her final year of law school, she had become pregnant and had undergone an abortion in Mexico that she felt fortunate to have survived. After meeting with McCorvey in a pizza parlor and convincing her to become a plaintiff representing all women of Texas, Coffee became Waddington’s co-counsel in a class action suit, which the legal team would link the case to two other new cases one against the same Texas law by James Hallford, a Texas physician being prosecuted for performing two abortions, the other against a similar law in Georgia by a married woman under the pseudonym Mary Doe. Waddington and Coffee would file McCorvey’s suit at the United States District Court for the Northern District of Texas against the Dallas County district attorney, Henry Wade. To protect McCorvey’s privacy, the case would be filed under a pseudonym, Jane Roe, leading to Roe v. Wade as the name of the case, whose history we’ll continue in part 2.