Demonstrators demanding a woman's right to choose march to the U.S. Capitol for a rally seeking repeal of all anti-abortion laws in Washington, D.C., Nov. 20, 1971. On the other side of the Capitol was a demonstration held by those who are against abortion. Source: AP Photos

The Many Lives of Roe v Wade

The Little Known History Behind the Famous Ruling

06.14.19

In 1973, the landmark ruling in Roe v. Wade decriminalized abortion. But since then, the court’s findings have been simultaneously celebrated and contested. Now, Roe is in the news again. States including Alabama and Missouri have passed laws that challenge the Roe decision, leading some to ask: Are we close to seeing the Roe v. Wade ruling overturned? On this episode, we dig into the history of Roe and explore the life and legacy of a case whose details are often forgotten or misunderstood.

Roe v. Wade; abortion; abortion laws; abortion rights; legal history

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Segments

“We Have Had Abortions”

In 1972, Ms. magazine released its first issue, complete with the compelling — if controversial — article, “We have had abortions.” The article listed women who’d received an abortion, either legally or illegally. It also called upon the government to lift abortion restrictions for women across the country.

Kathy Spillar, executive editor of Ms. magazine, tells us whose names appeared on the list, how the article was received in the months before Roe v. Wade, and why it’s still important for so many women to put a personal face on such a charged issue.

Music:

Afterglow by Podington Bear
By Grace by Podington Bear
Light Touch by Podington Bear
Motivate by Podington Bear

abortion; abortion laws; abortion rights; magazines

00:00:00 / 00:00:00

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Speaker 1: Major funding for BackStory is provided by an anonymous donor, The National Endowment for the Humanities, and The Robert and Joseph Cornell Memorial Foundation.

Nathan Connolly: From Virginia Humanities, this is BackStory.

Nathan Connolly: Welcome to BackStory, the show that explores the history behind the headlines. I’m Nathan Connolly.

Joanne Freeman: And I’m Joanne Freeman.

Nathan Connolly: If you’re new to the podcast, we’re all historians. Each week, along with our cohosts, Ed Ayers and Brian Balogh, we explore a different aspect of American history.

Joanne Freeman: Now, there is no shortage of famous Supreme Court decisions, Marbury v. Madison, Plessy v. Ferguson, Brown v. Board of Education. But few of them are as currently controversial as the decision in Roe v. Wade, which decriminalized abortion.

Nathan Connolly: Ever since the ruling was decided in 1973, it’s been simultaneously contested and celebrated. Now, Roe v. Wade is in the news again. States, including Alabama and Missouri, have passed laws that pose a direct challenge to the Roe decision. While others, including Illinois and New York, are shoring up abortion rights for women in their state. All this talk is leading some to ask, are we close to seeing the end of Roe?

Joanne Freeman: On this episode we explore the history behind a case whose details are often forgotten or misunderstood.

Nathan Connolly: We’ll examine what women had to go through to find a safe abortion before the landmark ruling.

Joanne Freeman: And we’ll hear the story of the real woman behind the most famous pseudonym in American legal history, Jane Roe.

Joanne Freeman: If you walked by a newsstand in the spring of 1972, a bold headline on the first issue of Ms. Magazine might have caught your eye, “Women Tell the Truth About Their Abortions.” The brainchild of feminists Gloria Steinem and Dorothy Pitman Hughes, Ms. Magazine helped pioneer a growing landscape of feminist media. That spring, Ms. decided to make the issue of abortion rights front and center.

Kathy Spillar: It was actually quite a short article, two pages, the title, “We Have Had Abortions.”

Joanne Freeman: That’s Kathy Spillar. She’s executive editor of Ms. Magazine.

Kathy Spillar: It was signed by 53 American women who were inviting women all across the country to join them in a campaign for honesty and freedom. They listed their names and declared that they had had abortions, many of them illegal, some of them legal because they lived in states that had loosened up their abortion restrictions so that you could secure an abortion. But as they pointed out, even in those states where a woman could find a legal abortion, they frequently had to go through humiliating interviews. They had to, in some cases, declare mental illness to be able to be approved to have an abortion.

Kathy Spillar: They had to seek approval as opposed to making a decision that you wanted to access this healthcare and be able to do that without any judgment, without any social stigma, and without any danger. They laid all of this out in really just one page and said they wanted as many American women to join them as possible because they were going to deliver all of these names to the White House and to every state legislature. They were going to also tell feminists in other countries that were fighting similar laws and had already begun similar kinds of petition campaigns to remove the restrictions on access to abortion. Clearly, even from the beginning recognizing not only how central the issue was for American women, but how central this issue is and was then for women all over the world.

Joanne Freeman: As part of their effort to get women to sign the petition, the article included an invitation for women to submit their own stories.

Kathy Spillar: There was a cutout coupon that said we oppose the laws that make abortion illegal, many of them endangering women’s lives. Sometimes women died from abortions and that you would sign this and publicly join millions of other American women in demanding a repeal of all laws that restrict our reproductive freedom. You would send that into the offices of Ms. Magazine in New York City and they were collecting these coupons to present as petitions to government officials not only in the United States but to share with women all over the world.

Kathy Spillar: Remember, this was the time that in the early ’70s, women were now getting into college after the passage of Title IX in 1972. There was increasing realization that we had to secure better laws against sex discrimination in the United States. This was the time that women were fighting and organizing for greater rights and that this would be in the very first issue of Ms. Magazine, its first major campaign that Ms. ever launched, really speaks to how the feminist movement was making progress in the demands they had of lawmakers and the solidarity really. I mean, it was a way to gather women together no matter where you lived, that you were part of this bigger effort to secure rights for women.

Joanne Freeman: Kathy has an original copy of the issue. So when we reached her at the offices of the Feminist Majority Foundation, we asked her to list some of the women whose names appear in the article.

Kathy Spillar: Gloria Steinem, who is the founding editor of Ms. Magazine, Billie Jean King, very famous obviously at that time tennis champion, Letty Cottin Pogrebin, who was also a co-founder of Ms. Magazine. I’m looking here. Susan Brownmiller, Karen DeCrow, who would go on to be president of the National Organization for Women, or she might already have been president. She was an attorney in New York and would have known the founders of Ms. Magazine. Barbara Tuchman, a famous historian, Susan Sontag, and then many women whose names are probably not known, but who joined that early campaign to launch this whole effort.

Joanne Freeman: The article resonated with women across the country, and it helped shape the ongoing debate about women’s access to abortion.

Kathy Spillar: The very first issues were just snapped off the newsstands as fast as they could put them out and with women writing in to the headquarters of Ms. Magazine that finally they knew they weren’t crazy. After Ms., you realize that it’s not you. It’s not that there’s something wrong with you. In fact, there’s something wrong with the laws or with society at large in its treatment of women. So it’s usually just a great relief that women had when they would pick up an issue of Ms. Magazine. I have a feeling this was a major way by word-of-mouth as women saw this article and the other articles in Ms. Magazine, that it really began to spread very fast.

Kathy Spillar: This is also in the context that there were major efforts going on at the time to decriminalize abortion all across the country. It shined a bright spotlight on this critical issue from a feminist perspective, from a woman’s perspective. At that time, many, many physicians were speaking out. There were massive efforts ongoing and I think that what this did was put a face, a woman’s face, on this issue. It absolutely help light an even larger fire for the repeal of these dangerous laws.

Joanne Freeman: You’ll hear more from our conversation with Kathy Spillar at the end of the show. For now though, let’s learn about what it meant to criminalize abortion for women and for their doctors.

The Road Before Roe

For nearly a century, abortion was illegal in every state across the U.S. However, that didn’t mean abortions came to a halt. Instead, scholar Leslie Reagan says such laws made it much more difficult for women to find the proper care. Nathan talks with Reagan about the dangers women and physicians faced in the mid-20th century before Roe v. Wade.

Music

Driftwood by Podington Bear

Roe v. Wade; abortion laws; abortion rights

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Nathan Connolly: For nearly 100 years before Roe v. Wade, abortion was illegal in every state across the country. But even though it was criminalized, abortions didn’t come to a halt. Instead, historian Leslie Reagan says, it just made it more difficult for women to find the proper care.

Leslie Reagan: It was devastating, particularly on poor women and women of color because of the inequity in terms of access to safe people. It was devastating by the ’40s, ’50s, and ’60s, and ’70s in terms of making women feel like criminals, making them feel deviant, for taking away their ability to make decisions about their lives, and for making them feel endangered and, in fact, endangering their lives.

Nathan Connolly: Reagan investigates the century leading up to Roe in her book, “When Abortion Was a Crime.” She says that by the mid-20th century, women seeking an abortion and the physicians performing them faced serious threats. But before then, there was a time when abortion was accessible despite it’s illegality.

Leslie Reagan: Yes, interestingly, in the 1930s abortion’s fairly available. This has a lot to do with both the Depression and the high demand for abortion at the time. By the 1930s, you increasingly have these specialists who were excellent at it. So more people are able to go to these really superb providers. At the same time, you have people doing their own self-induced abortions because it still always depends just whether a woman is able to get the information about who to go to for the procedure or whether she has the money. So there are going to be plenty of people, depending on where they live, how much money they have, and information are going to try their own methods.

Leslie Reagan: That could be taking herbs, taking different kinds of medicines, or using some sort of instrument to induce an abortion. Clearly, people who had more money and had the right connections would find the better practitioners more easily. But it’s not guaranteed by being in the middle classes or having money. It would be finding the right person. And then of course, there are people who never could and never would go and ended up carrying pregnancies through that were not what they wanted to do. But definitely during the Depression, there’s evidence that the numbers of abortions really did go up because people didn’t have money and women would lose their jobs.

Nathan Connolly: This is fascinating because you’re shedding light on not just obviously the practice and procedure of getting an abortion, but the social impact of pregnancy itself, that it is actually a variable in women’s lives that has tremendous consequences in terms of how they have a civic presence, whether they are part of a community, whether they can support themselves. The pregnancy itself becomes something that women have to uniquely negotiate in public life.

Leslie Reagan: Yes, yes. We just talk about abortion as a thing and an event when really abortion is part of an entire life around reproduction and pregnancy and decisions that people have to make at a particular moment, and a moment in time historically that has to do with the family, the economy, education, all kinds of things. It’s about the time period they’re in. Whereas I’m talking about the 1930s and thinking about being a single parent, that was a time where that was extremely difficult to do, the stigmatization, particularly of middle class white women and what would happen with their families, the loss of family, loss of jobs, loss of education. You get kicked out of school into the 1950s, ’60s.

Leslie Reagan: More tolerated among the African American community where families could accept that. You could still be part of the community. But less so among middle class Blacks, they wanted their daughters and sons to be as respectable … That was a sign of respectability. They also would tend to go to use abortion the same way if they were unmarried because it also had to do with future possibility for education and class status. But now post-Roe and post all of the changes with the movements around sexual freedom in the ’60s and ’70s and ’80s, single women can have children, which is a big change and a big improvement, I think.

Nathan Connolly: Just to figure the dilemma facing, say, your general practitioner who’s a physician, to know about different safe procedures for ending a pregnancy on the one hand, but this whole other landscape, emotional, financial, the civic and political around the meaning of pregnancy. They almost have to be expert enough to be able to manage all the different kinds of cases that come to them where a woman has to figure out what to do or how to manage a pregnancy.

Leslie Reagan: Yes, well, some of the practitioners who we’re talking about, the really excellent specialists, the way they become these specialists does grow out of their awareness of the lives of women who are seeking abortionists. One doctor who becomes a specialist, Ed Keemer, in his particular case he said no. He had been taught in medical school you absolutely do not perform abortions. Dr. Ed Keemer is an African American doctor who was trained at Meharry Medical School in Tennessee, the historically Black college, a very prominent medical school. He had trained, as doctors were, that this is part of your reputation. You do not perform abortions.

Leslie Reagan: He had said no to a woman who then later committed suicide because of the shame associated with being pregnant and that stuck with him. He felt responsible. He could have done differently. And on top of it, his wife, who was also a physician, pushed him because she pointed out to him the reality that, in fact, the two of them had needed an abortion as well, that when they were in medical school they too had needed an abortion. That’s a very interesting story about how people’s lives work, that when they’re in a situation and getting an education, they probably couldn’t afford to get married. Perhaps she would have been kicked out of school, I don’t know.

Leslie Reagan: Yet when it came to it later on, he said no. So he felt whatever he felt as a doctor or he felt that it was dangerous or he felt that it would be bad for his reputation. She pointed out, “We can’t do that. We need to have some integrity about our own lives and be honest about it.” To the good, he heard that and he then went and trained himself with another excellent physician and he became someone who was known in the community in Detroit for providing abortions along with all general medical care and childbirth in the African American community in Detroit.

Nathan Connolly: Dr. Keemer’s performing abortions in Detroit and he falls under some pretty heavy attention by local law enforcement apparently.

Leslie Reagan: Yes. What happens is he’s a very good … He’s providing abortions and general medical care in the Black community. He’s a very respected doctor. He’s mostly taking care of Black patients, but occasionally white patients will cross to the other side of town. So it ends up that a white woman goes in, sees the doctor and names him. He is raided. Police come in and raid his clinic and arrest him, the nurses, and patients in the clinic. This was really becoming a standard practice where the police don’t just arrest him. They stake out the clinic and their goal is to arrest as maybe people as possible and hopefully catch the provider in the middle of performing an abortion and then arrest all the patients.

Leslie Reagan: They would collect everything, the instruments, the surgical table, grab all the patient records, and everything they could and swoop everything up during a raid. Then following that, they obviously interviewed everybody, interrogated them, asked questions, and then this went to trial. Although he had a lot of support from the community and people supporting him, he was convicted. His sense of it was that the reason that this came to trial and that they came after him was really that he was with a white woman performing this procedure and that this was intolerable. The vision of a Black man with his hands between her legs performing an abortion was just not to be tolerated.

Leslie Reagan: There are other cases like this. There are quite a number of cases where that seems to be the tipping point where there are white patients and Black providers.

Nathan Connolly: There’s also Josephine Gabler in Chicago. Who was she?

Leslie Reagan: Dr. Gabler, like Keemer, she’s another physician who also had a long-running practice in Chicago and she served as a center for the entire region, where people came in from other states to her office. It was just the way clinics, like any other doctor’s office. They came in. They’d see a receptionist. They sat in the office with other patients. The one thing that would make it very clear that it was not a legal practice like all others was that the patients when they came in they had a folded-up fabric towel or something put across their eyes so they wouldn’t see the doctor. They wouldn’t be able to identify the doctor if it ever came to that with a prosecutor or police.

Nathan Connolly: Given the lengths to which doctors would go to maintain some kind of anonymity, there was an awareness of the kinds of punishments that were meted out to them if they were caught performing an abortion. What might some of those punishments have been at that time?

Leslie Reagan: There is an awareness, although I think what is actually really very surprising is how openly this was done. This was advertised. They had business cards. People got their names. In fact, they knew Dr. Gabler. Dr. Keemer, they knew. But then what changes, as I was talking about with Keemer, is that there starts to be a change. Because it’s against the law, you can have prosecutors or police who will demand kickbacks or threaten them or suddenly intervene. But it does begin to change. In some places, they will do raids in the 1930s. But really in the 1940s across the country you begin to see the police raiding clinics.

Leslie Reagan: They are going into these clinics that have been established for years that have open practices that everybody knows about, that have been tolerated and pretty much ignored by police and prosecutors.

Nathan Connolly: What explains the uptake in this kind of enforcement?

Leslie Reagan: I think there’s a combination of factors. They are now using the tactics that they’ve been using during Prohibition on the gangsters as we know who are involved in selling liquor. And then of course, when you eliminate Prohibition they’ve got all the police and equipment and the methods. So partly they’re switching those methods. I think this is part of it, that they see these clinics are available. For some prosecutors, it’s a great thing to go do and say, “See, I’m enforcing the law.” But also I do see it as part of what we tend to think of as the 1950s, of the demand for conformity from women and against sexual deviance and what we call McCarthyism.

Leslie Reagan: Others have found that it begins in the ’40s, and you can really see it here with abortion is the association. Abortion is associated with Communism and the free sex and free love of Communism. It’s always being equated with Communism. There’s some of this happening too, that they’re really going after them in the ’40s and ’50s.

Nathan Connolly: That’s really remarkable because, I mean, I’ve studied a little bit about raids on number houses or obviously the kinds of attacks on queer spaces and any of these massive anti-vice campaigns in the ’40s and ’50s have tended to revolve around known haunts of illegality and immorality. It sounds like what you’re describing is that these women’s health outfits were similarly swept up in this moment of just blanket reform for the interest of scoring certain political points in the morality column, so to speak.

Leslie Reagan: Yeah. Yeah. I think so. I mean, the people who get caught in the raids are forced to speak in court cases. There are some raids where they are arrested and they are forced into gynecological exams with the police nearby. It’s all under the, “This is for her safety. We have to make sure that they’re okay.” They’re also told, “If you don’t, we’ll put your name in the paper. We’ll put your picture in the paper.” Some of them are held as hostile witnesses in jail until they testify. So there’s lots of ways to punish and threaten the people who have abortions without actually prosecuting them.

Nathan Connolly: In the early 1970s, you have a handful of states that begin to legalize abortion. What impact does this have on women’s mortality rates?

Leslie Reagan: The legalization of abortion is really important. By the 1950s, illegal abortion accounts for almost 50% of maternal mortality in the United States. Now, we’ve been talking about that there are illegal abortions that are quite safe. There’s doctors doing legal therapeutic abortions that are safe. But still, illegal abortions are accounting for almost half of all maternal mortality. People know that they can perform safe ones. So when it’s legalized in New York in 1970, the following year maternal mortality fell 45% after it legalized. The city reported in 1971, New York City experienced its lowest maternal mortality rate ever on record. That’s pretty incredible.

Leslie Reagan: As states legalized, they had similar kinds of reports. They saw huge drops in maternal mortality.

Nathan Connolly: Leslie, how would you describe then the impact of criminalization on women’s lives, taking your historical view? And to what extent do women’s lives change as decriminalization took effect over the 20th century?

Leslie Reagan: The decriminalization of abortion has been incredibly important not only for making this procedure safe and accessible even though it has been uneven in terms of access and it has gotten worse. We’re pretty close to the days of pre-Roe in terms of the unevenness around the country where it’s quite accessible in California and New York, Illinois, and then in some states, there’s one provider or none and people have to wait 72 hours. Teenagers have to get parental consent. But decriminalization has meant that it honors the decision of women and trans people who get pregnant to make decisions about their own lives, about their pregnancies, about their futures.

Leslie Reagan: I would also say it’s not only about women and abortion. It applies to everybody, to be able to make decisions about your life, to have respect from medicine as a patient, to have privacy recognized. I think this is something that’s often not understood really that Roe v. Wade really recognized the rights of patients and the freedom of sexuality and the autonomy of your body. This is something we all now depend on. As that is lost or as that is attacked, we all lose.

Nathan Connolly: Leslie Reagan is a history professor at the University of Illinois Urbana-Champaign. She’s the author of the book, When Abortion Was a Crime: Women, Medicine, and Law in the United States 1867 to 1973.

The Many Lives of Roe v. Wade

Legal scholar Mary Ziegler explains the story behind Roe v. Wade, including how a summer visit to the Mayo Clinic influenced the landmark ruling and what happened to Norma McCorvey — aka “Jane Roe” — in the decades after the decision.

Music:

The Falls by Podington Bear

Norma McCorvey; Roe v. Wade; abortion; abortion laws

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Joanne Freeman: Ever since Justice Harry Blackmun issued the famous ruling in 1973, the issues to come out of Roe have changed sometimes drastically. I got in touch with law professor Mary Ziegler to get the story of the case, from a fateful trip Justice Blackmun took to the Mayo Clinic to the woman known as Jane Roe. I started by asking Mary to set the stage for the landmark ruling in Roe v. Wade by looking back to another important case in 1965, Griswold v. Connecticut.

Mary Ziegler: Griswold was about a law that was unique at the time. It was a Connecticut law that prohibited married couples from using contraception, not from purchasing it but from actually using it. The Supreme Court struck down that law and more controversially, based that ruling on a right to privacy. That right to privacy wasn’t spelled out in the text of the Constitution or its history, but Justice William Douglas reasoned that if you looked at what he called the penumbras of the Constitution, implications from what was spelled out in the Constitution, that there would have to be a right to privacy broad enough to cover married couples’ access to contraception.

Mary Ziegler: That right to privacy would ultimately come to be the basis for the abortion right in Roe v. Wade.

Joanne Freeman: Wow, which I bet is something that most people don’t know at all, that it had to do with the right to privacy and not so much initially with abortion.

Mary Ziegler: Right. Well, I mean I think that there were already questions at the time of Griswold about just how broad this right of privacy would be. Was this really about marriage, which had been pretty central to the court’s opinion in Griswold, or was it more about the privacy that applied to contraceptive decisions for anybody, married or unmarried? If it did apply to contraceptive decisions, there was an open question about whether that would extend to abortion or whether the court would see abortion as being a totally unrelated issue to contraception.

Joanne Freeman: So then Griswold is about contraception. It’s not about abortion. Let’s focus a little bit more in then on Roe v. Wade. Tell us a little bit about Norma McCorvey and Sarah Weddington.

Mary Ziegler: Norma McCorvey at the time, in 1969, was 21. She already had two children. She learned she was pregnant again and her friends advised her to claim that she had been raped. They thought that Texas would allow for abortion in cases of rape or incest. This wasn’t actually true. Texas allowed only for abortions in cases in which a woman’s life would be at risk. She tried to get an illegal abortion, but found that the facility that she was looking for had actually been shut down by the police and eventually found her way to two attorneys, Linda Coffee and Sarah Weddington.

Mary Ziegler: Weddington at that point had had an abortion herself in a Mexican clinic when she was 22. So I think she understood the stakes of this in a way that others didn’t. Weddington and Coffee actually filed a lawsuit on McCorvey’s behalf using the alias, Jane Roe, seeking a declaration that Texas’ abortion law was unconstitutional. That was how the case Roe v. Wade got started.

Joanne Freeman: It starts out in Texas, and then how does it work its way up to the Supreme Court?

Mary Ziegler: In 1970 there was actually a three-judge panel of the district court in Texas, which is fairly unusual. That court declared the law unconstitutional. The Supreme Court decided to hear the case. Actually the process in the Supreme Court was kind of a long and complicated one. Justice Blackmun had initially wanted to write the opinion differently and the court had had Roe in front of it since 1971 and then didn’t wind up issuing a final opinion until January of 1973.

Joanne Freeman: That’s interesting. So then in the end, how would you sum up the main arguments being presented by the plaintiffs and the defendants in the case as a whole?

Mary Ziegler: Well, Weddington and her colleagues made a variety of arguments.

Speaker 8: We hear arguments in number 18, Roe against Wade.

Sarah W.: Mr. Chief Justice, and may it please the court-

Mary Ziegler: They obviously used the privacy argument that had been made in Griswold and then I think more forcefully in a case the year before Roe came down, called Eisenstadt v. Baird. Eisenstadt involved a Massachusetts law that allowed married couples to use contraception either to prevent STDs or to prevent contraception, but allowed single people only to use contraception for the purposes of preventing STDs. So the courts struck that law down and in passing said that if the right to privacy means anything, it means the right of an individual to control when and whether he or she bears or begets a child, I’m paraphrasing.

Mary Ziegler: Weddington and other abortion rights amici relied on that right to privacy and said it should be broad enough to extend to abortion rights. They made a variety of other arguments too. For example, they pointed to the 13th amendment, which abolished slavery, and described forced pregnancy as a form of involuntary servitude. They gestured to the idea of equality for women-

Sarah W.: A pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body. It disrupts her education. It disrupts her employment, and it often disrupts her entire family life. We feel that because of the impact on the woman, this certainly in as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.

Mary Ziegler: The state of Texas and anti-abortion amici made a variety of arguments too. Probably the most significant ones were first that a fetus or unborn child was a person within the meaning of the 14th amendment. What that would mean would be that that fetus or unborn child would be entitled to both due process of the law and equal protection of the law, which would make an abortion right impossible. Texas also argued that it had a compelling interest in protecting life from the moment of fertilization.

Speaker 8: Now, the appellee does not disagree with the appellant’s statement that the woman has a choice. But as we have previously mentioned we feel that this choice is the woman’s prior to the time that she becomes pregnant. This is the time of the choice.

Mary Ziegler: A lot of anti-abortion groups relied pretty heavily on what they saw as scientific evidence. Fetology as a medical specialty was relatively new back then. So there was a lot of arguments to the effect that if you understood what a fetus or unborn child was scientifically, you would have to grant fetal rights.

Joanne Freeman: So then what was the final opinion. How did the Supreme Court sift through that, and how did they come up with their final opinion, and what did they base it on?

Mary Ziegler: Well, yeah. Initially Blackmun had wanted to hold that Texas’ law was just unconstitutionally vague, which would have been a pretty narrow opinion. Essentially he wanted to say that it wasn’t clear ahead of time when a procedure would be needed to save a woman’s life and that that didn’t give doctors enough notice. But a lot of his liberal colleagues weren’t satisfied with that. So over the summer when the court was in recess, he went to the Mayo Clinic in Minnesota and then developed a very different opinion, which is the Roe opinion that we have now. The fact that Blackmun was at the Mayo Clinic is pretty evident in the opinion. There’s a lot of discussion of the medical history of abortion, and even the kind of rule of law that comes out of Roe is a very medical one.

Mary Ziegler: In the first trimester, the court held that abortion regulations were broadly unconstitutional, that the state didn’t have much authority to regulate at all, that in the second trimester the state could regulate only to protect women’s health and only after fetal viability, which was the point the court defined as when a child could survive outside of the womb independently. The court, in reaching this conclusion, relied on the right to privacy and on precedents like Griswold but framed them very much in medical terms, said that the abortion decision is something that a woman will make in consultation with her doctor. This was not strongly feminist language about a woman’s right to choose, which basically doesn’t appear anywhere in the Roe opinion.

Mary Ziegler: The court also rejected the key anti-abortion arguments, so when it came to personhood the court said that the word person in the Constitution seems to apply only to people after birth. So it wouldn’t have been intended by the framers to include life in utero. When it came to a compelling interest in protecting life, the courts said that religious authorities and doctors and philosophers all have adopted different understandings when life begins, so the Supreme Court would be in no position to impose one of those definitions on everyone else.

Joanne Freeman: Wow. That’s fascinating that they had no idea about the visit to the Mayo Clinic and the way in which medicine worked its way through this decision to such an extreme degree. Do you think that’s part of what explains the relative harmony around the ruling? I mean, I gather that there were only two justices that dissented.

Mary Ziegler: Yeah. I think at the time many of the justices thought that this was a fairly moderate decision and really thought, I think, that abortion was a medical matter and that it should be left to doctors. I think Blackmun, for example, in his files had clipped a poll saying that over 70% of Americans thought that abortion should be a decision between a woman and her doctor. I really don’t think the justices anticipated there being anything like the backlash and the controversy that really ensued after the decision.

Joanne Freeman: How does that controversy begin to build, and what impact does that begin to gradually have on Roe v. Wade?

Mary Ziegler: Well, I think probably the most important thing to note here was that Roe v. Wade came in the middle of a controversy. It didn’t really start a controversy. So by the time you got to the early 1970s you had a very organized anti-abortion movement. It wasn’t particularly a nationally organized movement, but there were a lot of very effective state organizations that were quite powerful. Just to give a particularly striking example, New York was one of very few states before Roe that had repealed all of its abortion restrictions. But anti-abortion forces in New York were so well-organized that they managed to convince the legislature to repeal its repeal and to reinstate abortion restrictions.

Mary Ziegler: The only thing that prevented that from happening was when Republican governor, Nelson Rockefeller, vetoed the bill. Both sides were already taking pretty sharply polarized positions on abortion before Roe, so when the Supreme Court intervened, it wasn’t surprising that there was a lot of controversy. Roe did change things because it gave the national anti-abortion movement a push to organize and also gave the national anti-abortion movement a singular goal. Before, a lot of anti-abortion groups had just been fighting on a state-by-state level and didn’t have a single target, if you will, and after Roe they did.

Joanne Freeman: Then how does the gradual chipping away at Roe begin? I mean, I gather that as always this is a federalism issue. So that really begins on a state level?

Mary Ziegler: It does. Well, actually at the beginning, the chipping away was almost like a side job for anti-abortion activists. They initially wanted to amend the Constitution to criminalize all abortions. After a while it became pretty clear though that these laws, the Constitutional amendments, weren’t going very quickly and so these groups instead or in addition began introducing these incremental laws. At first these laws were mostly designed to keep down the abortion rates and limit access to abortion while the Constitutional amendment battle continued.

Mary Ziegler: But over time, after Ronald Reagan was elected and abortion opponents seemed to have control of both houses of Congress, the anti-abortion movement itself was too divided about what strategy to pursue to get an amendment, so nothing actually happened. Abortion opponents needed to come up with another goal. If the whole movement had been organized around this Constitutional amendment, there is a question about what could be done when the Constitutional amendment was off the table. Leading anti-abortion groups proposed that the movement should focus on controlling nominations to the Supreme Court and ensuring that Roe was overturned.

Mary Ziegler: Once that happened, these incremental laws took on much more importance because they were no longer just a way to keep the abortion rate down. They were a part of a strategy to overturn Roe.

Joanne Freeman: Then in 1992, Roe is directly challenged in the case of Planned Parenthood v. Casey. What happens there?

Mary Ziegler: Well, so between 1986 and 1992, many expected the court to overturn Roe because Republicans who had campaigned on the idea of overturning Roe had nominated more than five justices to the US Supreme Court. When Casey came around, many commentators expected the court to overturn Roe. In fact, the pro-choice movement’s entire strategy at the time was predicated on the idea that Roe would be overturned and that they would capitalize on it at the polls, essentially electing a pro-choice president and a pro-choice Congress and maybe passing federal legislation to protect abortion rights.

Mary Ziegler: Casey, of course, defied expectations and many Republican nominees including Anthony Kennedy, Sandra Day O’Connor, and David Souter all voted to preserve what the court called the essential holding of Roe, namely that there was a Constitutional abortion right. But Casey overhauled abortion jurisprudence in other ways. Casey in particular dropped a lot of the language about doctors. It’s very much Casey in opinion about women’s autonomy. There is much more explicit language in Casey about equality for women as well as privacy and autonomy. Casey also adopted a rule of law that was much less protective of abortion arguably than the trimester framework from Roe, called the undue burden test.

Mary Ziegler: Under this test, the state can’t have the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion. That was pretty vague at the time, but what people noticed was that the court applied this rule to a Pennsylvania statute that was at bar and upheld all but one part of it. So it seemed that many or maybe even most abortion restrictions wouldn’t be unduly burdensome. At least that was the thought right after Casey came down.

Joanne Freeman: It’s interesting because what you’re describing is a sort of balancing act between medical provisions, rights talk, legal strategy, I mean, in a sense, the sorts of things I suppose that have been juggled forever, but there are balance shifts over time. Is that, in a sense, what we’re looking at here?

Mary Ziegler: Mm-hmm (affirmative). The Casey court saw the abortion issue as really being about women’s equality and autonomy on the one hand and the state’s interest in fetal life on the other hand. The reason that Casey gave for undoing the trimester framework was that if the state had an interest in fetal life, Casey thought it applied throughout pregnancy, not just after viability. In Roe, I think you see the court pitching this much more as being about medicine and something that, in large part, courts and legislators and politicians should stay out of. By the time you get to Casey, the court is saying this is very much a kind of profound Constitutional and moral issue where there are important values on each side, like women’s equality and autonomy and the government’s interest in life.

Mary Ziegler: When we talk now about whether the court is going to overturn Roe, we’re not really talking about 1973 Roe, which no longer exists. We’re talking about Roe as it’s been changed and transformed over time by Casey and other opinions.

Joanne Freeman: Along those lines then, obviously one of the reasons we’re having this conversation right now is because we’re looking at so many actions going on now on a state level in which states are passing laws that are deliberately and directly in violation of Roe v. Wade. Obviously a lot of people are looking at that and thinking it’s only a matter of time until that decision is overturned. I wonder, given your knowledge of the background of this, what do you think the future holds for Roe specifically and for abortion rights more generally?

Mary Ziegler: Well, it’s hard to say. I think people who are predicting the demise of Roe have good … I mean, I include myself in that. I think have good reason for making that prediction in part because they’re relying on the fact that The Federalist Society, which is the conservative group that helps select judicial nominees for Republican presidents, has done so with the goal of overturning Roe. Now, that was true of course in the ’80s when Justice Kennedy and O’Connor were picked as well, and it didn’t work. But if I had to put my money on it, I would put my money on The Federalist Society getting it right.

Mary Ziegler: I think the only reason there’s uncertainty is because this is such a political matter, you can have justices who both as a matter of ideological priors and jurisprudential philosophy don’t think Roe was rightly decided who are reluctant to actually be the deciding vote to undo the decision because of concerns about what that’ll mean for the court’s reputation or the political controversy surrounding the court. If there is going to be a decision overturning Roe, if you look at the history you would think that it would be much more likely to be the kind of incremental strategy that will deliver that and not the more flashy stringent bills we’ve seen in the news lately banning abortion, for example, at six weeks or at fertilization.

Joanne Freeman: Now, we’ve been talking on a high level, but I actually also am curious about one additional fact. What, in the end, happens with Norma McCorvey after the ruling?

Mary Ziegler: Well, Norma McCorvey interestingly sort of undergoes almost a conversion experience. Roe, I think, in some ways ends up not really being that important from the standpoint of her pregnancy. She wasn’t actually pregnant any more. She wound up giving birth to that child. She had been in a lesbian relationship for some time. But then in the 1990s, underwent a conversion to Christianity, began expressing remorse for her part in Roe v. Wade, and began working in the pro-life movement, particularly with the group, Operation Rescue, which led clinic blockades in the 1990s.

Mary Ziegler: She became a fairly prominent member of the anti-abortion movement. She actually sought in the mid-2000s to file a case to overturn Roe v. Wade on the basis that there was evidence that the procedure hurt women. She still continued participating in anti-abortion rallies until her death in 2017.

Joanne Freeman: Wow. Wow. Wow. Okay. I almost don’t know what to say to that. It’s almost like the final example of the complexity of this issue is the person at the center of it shifting like that.

Mary Ziegler: There are lots of figures like that. Just recently in the New York Times on May 30th, Rob Schenck, who was a prominent member of Operation Rescue and an evangelical minister, wrote on op-ed in the New York Times arguing that overturning Roe would be not pro-life and that he had been wrong about his earlier views. So these kinds of conversion stories are not that uncommon and they do, I think, drive home how complicated the issue is.

Joanne Freeman: Mary Ziegler teaches law at Florida State University. Her most recent book is Beyond Abortion: Roe v. Wade and the Fight for Privacy.

Nathan Connolly: As Mary mentioned just there, challenges to the Roe v. Wade ruling started almost immediately, but so too did Ms. Magazine’s defense of it.

Kathy Spillar: In fact, in 1973 shortly after the Roe v. Wade decision, Ms. Magazine ran a full-page photograph of a woman who on a hotel room floor had bled out from a self-induced abortion and was found by the police. It was actually a photograph taken by the police as part of their investigation. They ran this very graphic photo of a woman who had died because she had sought an illegal abortion, a self-induced abortion, with the headline, Never Again. I think that caught the spirit of that moment when Roe v. Wade was decided and when women all across the country now had access to safe abortion care.

Nathan Connolly: In 2006, Ms. Magazine published an updated version of its We Had an Abortion petition that included the signatures of some 5000 women. In the wake of the controversial laws in states like Alabama and Missouri, women had taken to social media using hashtags like youknowme, to share their own experiences with abortion.

Nathan Connolly: We ended our conversation with Kathy by asking why it’s still so important for so many women to put a personal face on such a charged issue.

Kathy Spillar: I think the most important reason is that people understand how common a medical procedure this is today and how you know someone who’s had an abortion. It’s about still I think about one in three women will have an abortion some time in their lifetime. The more that people understand that this is a very common medical procedure, a safe procedure, I think is very critically important. The other thing that women are saying as they are signing these petitions and posting on Facebook and Instagram is that we’re not going to go back. Women are simply not going to go back.

Kathy Spillar: They are not going to endanger their lives again as women did commonly before 1973. I’ve never seen such activism across the country among women of all ages, women who are in their 70s and 80s and who remember what it was like when abortion was illegal and inaccessible, and young women and pre-teenagers who understand the importance of having control over your body. That’s an intergenerational fight that is ongoing and with great energy and purpose and determination. Women simply are not going to go back.

Nathan Connolly: That’s Kathy Spillar. She’s the executive editor of Ms. Magazine and the executive director of the Feminist Majority Foundation.

End Riff

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View Transcript

Nathan Connolly: Joanne, this question of abortion rights is one that has been a sharp debate for quite some time. I wonder what it tells us about the nature of debate and disagreement in American history.

Joanne Freeman: Well, this makes me think about the many ways in which there are a lot of different threads of conversation all plugged into this one issue of abortion. There’s a question of religion. There’s a question of women’s rights. There are any number of other threads we could throw in, partisanship and everything else. They’re all highly charged. There’s a long tradition of them being highly charged in American history. This issue brings them together in a really powerful and yet murky kind of way.

Nathan Connolly: When I was in college, I was in some ways grappling with these processes through the combination of growing up in the Catholic church and coming of age in that space, but also arriving in university life where a whole host of questions, as we know, get thrown on the table for reconsideration. It was in that space that I came in contact with a mode of argument about abortion that made the following. I’m curious to get your thoughts on it.

Nathan Connolly: That in fact, abortion was considered to be a male solution to the “problem” of pregnancy insofar as it was an act of violence that basically ended a life, and that a feminist action around a pregnancy would mean or include carrying a baby to term, but also advocating for a whole host of social investments around the pregnancy itself: improved access to healthcare, and improved treatment for women who might have to leave work, or thinking much more thoughtfully about the adoption system. In other words, that as coming out of a Catholic church and going to a Catholic university, the way in which we should institutionally think of ourselves as feminists was maybe moving off of the abortion option and thinking much more about the civic meaning of pregnancy itself.

Joanne Freeman: And social change, it sounds like.

Nathan Connolly: Yeah, exactly. Exactly. And again, this is not an argument that you hear very often, but it was one that I recall being at least a creative response to an otherwise stark black/white debate.

Joanne Freeman: Wow. No, I can’t say that I actually have heard that argument before. I definitely was not aware of any argument like that back in the ’80s when I first became aware of this issue. I hadn’t thought about it until just this moment when we brought together the fact that evangelical Christianity and women’s rights and civil rights were all bound together. This is the first issue for me that really, I suppose, made me an activist. In the past, I guess I had always assumed that this was mostly a question of women’s rights for me. But I think the religious side of it also probably caught my attention, that something on both halves of that equation as someone who’s a woman and as someone who is Jewish, made me wonder what this debate really was about and made me wonder about what it meant for women and people like me.

Joanne Freeman: It’s interesting because I had a slow entry into deciding what I wanted to do about the issue. I was alarmed, I think, in the ’80s as it was becoming politicized and it felt like lines were being drawn in a way that I wasn’t comfortable. But I wanted to know what I thought about abortion before I took action on it. A friend worked at a women’s health clinic. I actually went for a day and worked at that clinic, really not doing much more than helping women go in and out of different rooms. I think I took some people’s temperature maybe. I mean, I was really just sort of facilitating people moving about, but mostly, I just wanted to be at a clinic that performed abortions and see what that meant and see who these women were and see what was happening.

Joanne Freeman: If I remember correctly, I held one woman’s hand through an abortion.

Nathan Connolly: Wow. Wow.

Joanne Freeman: Right. I wanted to know what it meant. I left that experience feeling this was not something flip. Because I think my sense of the debate at that moment was that people were saying women are just haphazardly using abortion because, hey, it’s easy and we don’t have to worry about being pregnant. That’s not what I saw. That’s not what I saw. I think I left that experience feeling this was not an easy choice for people to make, but it was a choice that people were taking seriously. Then I began to investigate what other people were doing who felt like I did. I actually ended up being part of a, at the time I think we called it Clinic Defense.

Joanne Freeman: Basically just there were groups of us that were put in front of women’s health clinics that performed abortions with the thought that we would just make sure people could get in and out who wanted to get in and out. It was a very organized process. I mean, we had a lot of conversation about it. We learned how to stand up to people. Passive resistance, and other things to do so that we would not ever accelerate into violence if something ever happened. Most of the time this meant really, really early Saturday mornings, me standing with a bunch of really cold people wearing layers of clothing in front of women’s health clinics and nothing happening.

Joanne Freeman: But then there was one Saturday when we were the target. The clinic that I happened to be at was the target and we were attacked by busloads of people. I never have had an experience like that before or since. It was so surreal because there were people running at me, some of them with Bibles, screaming at me that I was a bad Christian. I half wanted to laugh. Partly, I was like, “Well, you got something there. I really am not.” It was such a dramatic example of what we started out by talking about, Nathan, where that was not a conversation I was having by standing in front of that clinic. What I was doing was trying to help women who had made a choice carry that choice out.

Joanne Freeman: There was a man with a Bible running at me and telling me I was a bad Christian. I’m sure from his side he didn’t pick up on my half of that conversation either. But it was such a dramatic example. It was so powerful and immediate of the ways in which people … The issue means a lot to people, but it means that in such different ways. So Nathan, what’s really striking to me is that above and beyond the issue itself, the Supreme Court decision is just as complex and just as tangled. It seems as though when people talk out in the public sphere about what will or won’t happen to Roe v. Wade, more often than not they say that if it gets overturned, it won’t be all in one fell swoop. It’ll be bit by bit because it’s such a tangled issue and it evokes such strong feelings that there might not actually be a way, oddly enough, despite all the strong feelings or because of all the strong feelings, to eliminate it any other way.

Nathan Connolly: Yeah. I think that’s right. I mean if you think about it just in terms of the abstract Constitutional questions, the right to privacy is a huge cornerstone of American life more broadly. So folks are going to absolutely want to fight along that axis. You think about as the decision was being decided and hammered out, there were social movements that were in the streets literally shaping the mind of judges in the court. And the language of the decision itself moved and evolved in response to that grassroots effort. That effort has not gone away in the half-century since this decision.

Nathan Connolly: So again, on that line as well, I think you’ll see it be an extraordinarily gnarly set of conflicts to wind this down or to protect it. There’s also, I think, the question as we constantly come back to of just people who are very mindful of the human costs on both sides. So there too you’ll have people who will want to step outside of the narrow frame of the law and constantly cast the debate in bigger moral terms and in terms of who we are as a country. For all those reasons, I think you’ll see a number of really important smaller decisions that are being decided in the wake of the Roe case. In some ways, it’s an even bigger decision than that of Brown, which is Brown still is the law of the land.

Nathan Connolly: No one is rolling back or touching the notion that separate is not equal, even if in fact, we haven’t really done the work to really let desegregation happen the way that it was perhaps most imagined by its advocates. But Roe is very different. Roe is that we’re going back into the case law and into the court of popular opinion and relitigating this thing constantly.

Joanne Freeman: It’s a reminder about something that I think it’s easy to forget, although I suppose less easy nowadays. But I think there’s a tendency to think of Supreme Court decisions, all capital letters. It’s things that are declared and then law has been established. What we’re really talking about with all of these major Supreme Court decisions, but particularly with Roe, is the ground level, real-life implications of those decisions and how even a decision once made isn’t necessarily permanent, that there’s always the possibility for better and for worse of change and that that is worked out on the ground and not in a court.

Nathan Connolly: That’s it for today. But let us know what you thought of the episode. You’ll find us at backstoryradio.org or send an email to backstory@virginia.edu. We’re also on Facebook and Twitter @backstoryradio. Special thanks this week to the Johns Hopkins studios in Baltimore.

Joanne Freeman: BackStory is produced at Virginia Humanities. Major support is provided by an anonymous donor, The National Endowment for the Humanities, the Johns Hopkins University, and The Joseph and Robert Cornell Memorial Foundation. Additional support is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment.

Speaker 10: Brian Balogh is professor of history at the University of Virginia. Ed Ayers is professor of the humanities and president emeritus of the University of Richmond. Joanne Freeman is professor of history and American studies at Yale University. Nathan Connolly is the Herbert Baxter Adams Associate Professor of history at the Johns Hopkins University.

Speaker 10: BackStory was created by Andrew Wyndham for Virginia Humanities.