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Turning Back The Clock On Abortion

In one famous case, a middle-class African American woman from Long Island, pregnant with a rubella-scarred fetus, was approved for a therapeutic abortion but had the bad luck to fall into the hands of a fervent anti-abortion Catholic physician, who tricked her into believing the fetus was normal and sent her home.

But, in the long run, the push for therapeutic abortion made Americans of both sexes think publicly about what pregnancy meant to those most closely involved: the woman, her family, and the child who could be born unwanted. Considerations of how dire the circumstances of pregnancy were in hardship cases led to reflections about the hardships any pregnancy could cause. Large numbers of people — many of them well outside the radical politics of the decade — came to believe that the state should refrain from intruding into a decision that, in the end, was the pregnant woman's to make. In 1966, The Saturday Evening Post — as conventional as they came — ran the headline "we should legalize abortion," and The New York Times editorialized for legalization the next year. By 1970, there were initiatives in many state legislatures and a public that was leaning toward legalizing abortion, period.

It's interesting to note that D&X is used to end pregnancies in the kinds of situations in which there has long been a consensus that the woman's wishes should be honored. It's as if the anti-choice movement is going back to the '60s and trying for a do-over, dismantling the first premise on which most could agree — the right of a pregnant woman in a terrible bind to get a legal abortion from a competent physician, one who will put her health and safety first.

So how, despite public opinion, did abortion opponents manage to waylay and subvert pro-choice measures in state after state before 1973? The answer lies in the intractable determination of religious conservatives to recast abortion as a debate over the primacy of child-bearing and the personhood of the fetus, rather than as an issue of women's well-being. The Catholic Church was the first to attack abortion: Even before Roe, the Church hierarchy coordinated a parish-by-parish effort to stop any sort of reform bill, including those for therapeutic abortions. This predominantly Catholic movement didn't broaden into the more ecumenical one we know until the late '70s and early '80s, when Protestant evangelicals first joined in. In 1978, Jerry Falwell preached his first sermon on abortion; a year later, the newly formed Moral Majority put abortion at the top of its list of secular humanist scourges. Two years later, Ronald Reagan was the first presidential candidate in U.S. history to run on a party platform that condemned abortion. Over the next twelve years, the anti-choice movement battened onto fears of adolescent girls gone wild, securing parental consent laws in many states. It gained public platforms to proselytize and intimidate, with ersatz "scientific" revelations about the subjective life of the fetus. And, as the troops heated up in the 1980s, the far right wing turned violent — picketing and firebombing clinics, assaulting women, and murdering physicians.

The turn to terrorism did not serve the movement well. Americans recoiled from the violence and a "mainstream" right-to-life movement that refused to condemn it. In addition, although anti-choice forces succeeded in making it hard for women and girls to get abortions (there are reputed to be places in the West where a woman has to drive 600 miles for an abortion), they never made a dent in the 60-plus percent of Americans who supported legal abortion.

By the late '90s, some right-to-life strategists began to search for a softer, more "woman-friendly" message. They mixed the old rhetoric of protecting fetuses with new claims to defending women: from the pressures of loutish male partners too selfish to consider fatherhood, from domineering feminists, and from the depression and "post-abortion syndrome" that supposedly ensues. In The American Prospect last October, Siegel and Sarah Blustain reported how, in South Dakota, the strategy was tested with the aid of a willing red-state legislature that sponsored a task force on abortion. The task force issued a 70-page report in 2006 that was essentially a brief from anti-choice groups: Its intent was to show that women who sought abortions did not know their own minds and that they would inevitably be harmed by an act that violated the bond between them and their child. The report led to the draconian South Dakota law that made performing any abortion, except to save the life of the mother, a felony for physicians. Voters overturned the law several months later. What's dismaying, though, is that the logic and pseudoscience behind it survived to inform Kennedy's opinion in Gonzales v. Carhart.

To comprehend just how bad the Court's decision is, you need look no further than Justice Ruth Bader Ginsburg's powerful and lucid dissent. Ginsburg notes Kennedy's reversion to "ancient notions about women's place in the family and under the Constitution." In Kennedy's statement about the legal salience of "the bond of love the mother has for her child," she hears echoes of the Court's 1908 ruling in Muller v. Oregon that labor laws for women must be geared to the "proper discharge of her maternal functions." In the Court's assumption of the role of benevolent overseer of the pregnant woman's psyche — preventing her from casually making "so grave a choice" — she hears resonances of the 1873 case Bradwell v. Illinois, which asserted that "the paramount destiny and mission of woman are to fulfill the noble and benign offices of wives and mothers."

Ginsburg knows those decisions intimately, because she devoted much of her career to dismantling the assumptions they enshrined in the law about women's domestic and maternal nature, their limited capacities to function in the world, and their need for supervision and guidance. In the '70s, she helped lead a legal revolution to undo restrictions that pushed women into second-class status. It's this comprehension of the Constitution's meaning that Ginsburg felt compelled to recall for her colleagues: "This Court has repeatedly confirmed the destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society." Justice Kennedy and four of his colleagues showed profound indifference to that distinguished history. Now the woman who engendered sympathy and respect for her difficult choices is treated as a lesser being who requires the greater wisdom of the law to pull her back from a moral precipice.
By Christine Stansell
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