Roe Forever: Abortion and American Culture, Past, Present, and Future

I am a midwife. I am a midwife who got into midwifery, as most of us probably do, to catch babies. Once upon a time I pictured myself attending home births, delivering babies in tubs. (I’ve never done either.) I have in my years as a CNM caught hundreds of babies (in hospitals), and provided countless hours of prenatal care. Now I work for Planned Parenthood, providing a wide range of reproductive and sexual health services– including abortion care. Through the twists and turns of my career, and all the ways it has challenged and changed me, my firm belief in the importance of protecting people’s right to quality, comprehensive care on their terms has never wavered. And so I feel shattered by the leaked draft of the SCOTUS brief that will overturn Roe, undermining decades worth of activism, and putting at risk the health, safety, and livelihoods of millions of people in this country– disproportionately women, and especially women of color. To be clear, we will all feel the effects of this decision in some way or another, but there are whole swaths of people across our country who will be directly harmed by the reversal in ways that folks in blue states and folks with money frankly will not be. 

In his majority opinion, Justice Samuel Alito wades into the history of legislation and attitudes around abortion in the United States and the pre-revolutionary colonies. On another day, I’d be excited to read some of the content of my dissertation research in Politico; but today it just rankles me, because not only has he gotten it wrong, but he’s gotten it wrong in ways that absolutely lay bare the sexist, patriarchal impetus behind what he wants us to believe is simply a matter of correcting a legal error made in 1973. 

Abortion is not just a modern question; I’m no ancient historian (although I am, by training, a literary historian of the colonial and antebellum periods in America), but it seems likely that for as long as women have been able to get pregnant, they’ve considered, sought out, and utilized methods of avoiding and aborting pregnancy. In a world before obstetrics and gynecology, before the introduction of “medical men” to the birthing chamber, matters around conception (and contraception), pregnancy, childbirth, and the puerperium were the purview of women. Across cultures and centuries, women helped women manage pregnancy problems and other gynecologic complaints and took care of one another in labor and birth. The word “midwife” exists in many languages. The Old English term mid-wif translates to “with woman.” (Importantly, it has nothing to do with the bearer’s, or anyone’s, status as a wife.) This is notably different from the Latin root of obstetrics, “obstare,” which means “to stand before.” The role of the midwife was quite literally to walk alongside the woman under her care. The spirit of this definition has not changed, though the recipients of our care are no longer solely women. 

Alito’s brief history, however, does not reference “midwifery,” “midwife,” or “midwives”; however, the term “physician” appears twenty-one times, and he even drops the outdated term “medical man” which was once used by proto-physicians to separate themselves from the practice of traditional midwifery. This omission speaks volumes, for there is no early American history of abortion, obstetrics, or gynecology without midwifery– unless, of course, your goal is to obliterate the role of women in the history of their own healthcare. Furthermore, his omission is neither semantic nor benign, and it speaks to the gross inaccuracy of the opinion as a whole, which asserts “an unbroken tradition of prohibiting abortion” in this country (24). 

Because the Constitution “makes no [direct] reference to abortion” (5), the Court in Roe v. Wade relied on the Due Process clause of the 14th Amendment (passed in 1868). This clause holds that some rights are not explicitly laid out by the Constitution, but that they are nonetheless “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Alito states, correctly, that at the time of the passage of the 14th Amendment, ¾ (to be precise, 26/37) of states had laws on the books criminalizing abortion; he then proceeds to use this as evidence that a right to abortion could not be “deeply rooted in this Nation’s history and tradition.” He cites several examples from English common law to support this view. Of note, one of these cases deals with a man who attempted to cause a miscarriage in the woman carrying his child. Nowhere is the woman’s desire for said miscarriage (i.e., what would properly make this case one about abortion at all, rather than assault or attempted murder) addressed (21). This is fitting, of course, because much of Alito’s case, again, rests on the opinions, experiences, and testimony of men, and not of pregnant women themselves. He goes on to point out that in the 19th century, rules around “quickening” (the onset of a pregnant person’s awareness of fetal movement) were abandoned because they were not deemed to be “in accordance with medical experience”-- which is presumed, again, to be more important than the lived experience of the person who is pregnant. 

The 1992 decision in Casey v. Planned Parenthood affirmed Roe, though, as Alito points out, it utilized the 14th Amendment in a somewhat different manner to do so. Casey invoked the Equal Protections clause to support the existence of an implied right to abortion in the Constitution. Alito spends little time on the logic here before rejecting it out of hand. The Equal Protections clause holds that a regulation (for example, regarding a medical procedure such as abortion) cannot be “a mere pretext designed to effect an invidious discrimination against members of one sex or another” (10). Alito states confidently that the regulations in question do not “trigger heightened scrutiny” in this manner. I wonder, though, given the reliance of the present decision on the fact that ¾ of states maintained the criminality of abortion at the time of the adoption of the 14th Amendment, if it is worth considering the reality of 1868 legislation, which was written and voted on exclusively by men. If the members of the sex who would be affected by these laws quite literally had no say in their passage, can we actually say that there is no “invidious discrimination” at work? Much later in the text of the decision, Alito goes on to point out that in today’s world, not only do women vote but that they do so in perhaps greater numbers than men. If, however, in 1868 they did (and could) not, is it still fair to talk about “history and tradition” in terms of law and legislation? Or need we look elsewhere to get a more accurate picture of the American “tradition” around the practice of abortion? For example, might we need to examine the historical record from a different vantage point in order to gain a better understanding of the “history and tradition” of a practice that was really and truly the purview of women–an entirely disenfranchised class of people until the early 20th century?

In her history of Contraception and Abortion in 19th Century America, Janet Farrell Brodie writes that “the control of reproduction known by some was secret information, spread by whispered intimacies along friendship or acquaintance networks, sometimes directly but often by innuendo” (2). For example, she notes that in the scant letters, diaries, and other private texts that give us hints regarding earlier Americans’ strategies for limiting family size, we find references to practices and products that promoted “menstrual regularity,” one euphemism for induced abortion (4). According to Brodie, women in 19th century America “had considerable access to diverse sources of information about abortion and abortion drugs and instruments” and had “many ways to procure miscarriage easily and safely,” at least until the nascent American Medical Association began its efforts to delegitimize and ultimately criminalize abortion (33).  Furthermore, the 19th century was characterized by a notable tendency toward separating the public from the private spheres of life (a distinction that heretofore made little sense), with the public sphere being the domain and the private sphere a place for women. Matters of domesticity, childbearing and child-rearing, and to large extent health and medicine were relegated to the private sphere, and as such were mostly unregulated in a formal way. 

The move made by the AMA to make “public” the matter of abortion by seeking criminalization, then, is very much in step with its efforts to strip women of their authority in the realm of medical matters, and we see in the late nineteenth and early twentieth centuries a profound shift away from woman-centered midwifery care to a male-dominated medical model of obstetric and gynecologic care. This was emblematic of a larger effort to professionalize medicine, and it is important to note that the AMA was and still is a trade organization (we need only look at its consistent efforts to limit the scopes of practice of nurse practitioners and midwives in the present day). Given this important context, it is hardly obvious that American history is characterized by a long standing “tradition” of criminalizing abortion. On the contrary, for a significant portion of American history, matters of contraception and abortion were not addressed in the public domain outside of certain religious contexts, even as information regarding child-spacing and pregnancy avoidance was sought after and disseminated. What Alito treats as a given– that abortion was always considered a social ill and that our country’s collective rejection of the practice is as American as apple pie–is in fact the product of a deliberate effort on the part of some doctors and later nineteenth-century social activists to codify their squeamishness about women’s sexuality, to exalt a particular vision of American motherhood, and to solidify the medical profession’s role in the management of women’s healthcare. Rather, I would go so far as to say that contraception and abortion are in fact very much a part of our “history and tradition,” even if we haven’t always done a good job of addressing these issues, central as they are to women’s experience (and, frankly, to their experience of motherhood), in the public sphere.

In addition to laying out the faults of Roe and Casey, and, acknowledging that the present Court is doing something relatively rare in rejecting what has been for fifty years considered settled precedent, Alito presents the current majority’s reasoning in favor of restricting abortion. This move, which no doubt speaks directly to the hearts of Roe’s opponents, gives the lie to the pretense that this is just about giving power back to the states. “Abortion,” he writes, “destroys… what the law at issue in this case regards as the life of an ‘unborn human being’” (32, my emphasis). He then goes on to list several justifications for the restriction of abortion in the present day, which include that: “Federal and state laws ban discrimination on the basis of pregnancy” (though it unfortunately does not follow that such discrimination does not exist); “leave for pregnancy and childbirth are now guaranteed by law in many cases” (note that this disingenuous statement cannot contain the word “paid,” which seems relevant); “costs of medical care associated with pregnancy are covered by insurance or medical assistance” (tell that to patients with high-deductible insurance plans, or whose babies end up with astronomical NICU bills); “safe haven laws” exist for mothers who simply want to give up their babies after birth; “a woman who puts her newborn up for adoption has little reason to fear that the baby will not find a suitable home”; and, finally (my favorite, for all its vagary and magical thinking), “many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram they typically have no doubt that what they see is their daughter or son” (my emphasis, and note the not-so-subtle nod toward transphobes in the gendering of the fetus here). To be clear, the availability of ultrasonography has been a boon to obstetrics; however, it does not change the fact that what is being viewed is still a “potential life” (the language of both Roe and Casey) until birth. As those of us in obstetrics know (and as so many parents of very wanted children have learned in the worst ways), the hopes and dreams we hold for the growing fetus are just that, and even the healthiest of  pregnancies with the most normal of ultrasound results can end with the poorest of outcomes. What Alito is doing here, and I’ve no doubt he’s clever enough to know this, is manipulating the emotions of not only the staunchly “pro-life,” but of those far more numerous– people for whom the notion of abortion is complicated, often by their own experiences of parenting, but who still acknowledge its necessity despite the “yuckiness” they may associate with it. It is for the same reason that the opinion, on page 10, takes a moment to tell us that at 10 weeks a developing fetus already has fingernails and toenails-- because who doesn’t think tiny baby nails are cute? But the right to abortion is not about how cute babies are, or the fact that we were all babies once, or the fact that perhaps adoption is now more accessible and acceptable, or the fact that prenatal, intrapartum, and postpartum care now must be covered by insurance (though seriously, thanks, Obama!). The right to abortion is about the autonomy of already-born, fully-fledged human beings with uteri to make decisions about their bodies and their futures. Full stop.

Beyond all of this problematic (and questionably relevant) reasoning, Alito finally spends a significant amount of time breaking down the “arbitrary” nature of the viability line set out by Roe. This is important for a number of reasons– but to me it is most concerning because he opens the door for any thinking anti-choice legislator to recognize that if “viability” is in fact arbitrary, then so is pretty much any other chosen cut-off, thus providing justification for the outright bans we know are coming. (Fingernails! Toenails! Cardiac activity! Why stop there?!) Alito correctly points out that the viability of a fetus is, to some extent, dependent on the technology of a given historical period, as well as the level of care available to a particular pregnant person in a particular geographic location. At the time Roe was decided, what a meant for a fetus to be “viable” outside the womb meant something different than it does today, thanks to advances in neonatal technology– and I’ve yet to meet a pro-choice advocate who laments this fact (although those of us in obstetrics and neonatology know that sometimes, just because we can “save a life” doesn’t mean we should when it comes to the periviable preemie). Furthermore, the proximity of a pregnant patient to, say, tertiary care facilities with excellent NICUs, can vary greatly depending on where a person lives (and if the radical right was so concerned about this, they’d be spending more time trying to get midwives, OBs, and pediatric providers to rural areas). These facts are part and parcel of the reality of American maternity care: we have some of the best (albeit most expensive) technology in the world to help mothers and babies, but it is unequally available and accessible based on race, geography, income level, and other factors. Alito elides all of this under what he terms the “arbitrary” nature of viability, lamenting “must these difficult questions be left entirely to the individual ‘attending physician or the particular fetus of the case before him [or her]’” (49). The short but emphatic answer, Justice Alito, is yes! That is precisely what should happen; legal scholars do brilliant work, but they are not experts in peri- or neonatology. The “line” of viability may continue to shift with changes in medical science and ethics. But this will never change the fact that, when it comes to viability (and really any kind of diagnosis), every medical decision is, at bottom, made by a particular provider about the case of a particular patient with the support of a particular body of evidence and guidance that is available at a particular time. Sometimes, there is no obviously correct answer, and the path forward is ambiguous at best; this is as true in medicine as in all other aspects of life.

It would seem, however, that Alito is in fact comfortable with this level of ambiguity when he presents the grand conclusion of the majority. “We therefore hold that the Constitution does not confer a right to abortion… except in a medical emergency or in the case of severe fetal abnormality” (65-6, my emphasis). He goes on to cite the Mississippi law in question, which holds that dilation and evacuation is a “barbaric” procedure, both “dangerous for the maternal patient” and “demeaning to the medical profession” (66, my emphasis). The terms utilized in this legislation are, I think intentionally, imprecise– and are subject to interpretation based on some of the same so-called “arbitrary” criteria Alito rails against when discussing the viability line. What constitutes an “emergency”? When is a fetal anomaly “severe”? If we are not laying out strict criteria here (and I mean strict– are we quantifying the maternal blood loss necessary to perform an abortion in the case of a pre-viable placental abruption? Are there certain systolic and diastolic blood pressure cut-offs in the case of early-onset preeclampsia or preexisting hypertension that might justify the invocation of the term “medical emergency”? Who gets to decide? The mother? The doctor? A judge with no obstetrical training whatsoever?), then we are putting physicians and nurses at risk of criminal punishment for intervening when they feel it is necessary, and we are putting patients at risk of morbidity and mortality if their providers are effectively hamstrung by the law. 

And this is to say nothing of the Mississippi legislature’s use of the terms “barbaric,” “dangerous,” and “demeaning.” Of “barbaric,” I have little to say other than the fact that surgery is messy (I was more than a little woozy during the first cesarean section I witnessed, and held up the wall for most of it); I think to moralize about the nature of a medical procedure is effectively useless other than as a dog-whistle for the anti-choice crowd. I would say the same about calling the procedure “demeaning” to the doctors who perform it; medical providers are trained to provide services as needed, in the safest and most evidence-based manner possible, all pearl-clutching aside. As to “danger,” we need only look to the evidence. First of all, dilation and evacuation is widely considered to be a very safe procedure that is, per ACOG, the preferred method for second trimester abortion. It is so safe that abortion providers are able to offer it in out-of-hospital settings. On the other hand, pregnancy itself is fraught with danger, even for healthy, young patients. For example, the risk of venous thromboembolism begins to rise with the onset of a new pregnancy, and remains statistically high for weeks after delivery. The rate of hypertensive disorders of pregnancy has been steadily increasing, now at 16% per the CDC. Hypertension in pregnancy is strongly associated with stroke, seizure, premature birth, and fetal and maternal death. Maternal death from all causes, measured from the onset of pregnancy until one-year postpartum, has itself been steadily increasing in the United States for decades, even as it has decreased nearly everywhere in the world (we share this distinction with only seven other countries, all in the developing world). And if we consider the proportion of women at risk from ongoing pregnancy and birth (most women at some point in their lifetime, usually multiple times) against the risks associated with dilation and evacuation (which represents a small fraction of abortion procedures performed in this country), it is clear that the risk of injury, chronic disease, and death associated with carrying a pregnancy to term is astronomically higher. The current rate of death from induced abortion at any stage of pregnancy is 0.6 per 100,000 patients; the current rate of death associated with pregnancy, delivery, and the postpartum period is a whopping 17.2 per 100,000– a statistic that is almost double that of most other developed nations.

I cannot say it loudly enough: this is not about protecting women. This is not about enshrining motherhood. This is not about making sure every baby is healthy and loved. This is about taking away people’s agency and autonomy. Forced parenthood is not good for anyone– not moms, not dads, not babies, and certainly not “the State.”  And abortion access will not be the only casualty of this ruling. Contraception is up next. All of a sudden, those unscientific claims about pills and other methods as “abortifacients” are going to have massive, real-life implications when pea-brained legislators set their sights on banning birth control, too. Because this isn’t, and this never was, about “life.” This is about stepping on the throats of women, of rolling back decades of progress, about putting us back in the kitchen, barefoot and pregnant and dependent on men for our survival. It is about the very antithesis of life. It is about making sure women can’t have meaningful lives beyond childbearing. I adore my daughters; without a thought, I’d risk life and limb for any one of them. Despite that, my life has meaning beyond being their mother, and although I would choose them again and again, every time, at bottom it matters that I got to choose. Will they have that right?

-Sam Cohen