"The day Roe is overturned,” writes Jeffrey Rosen in his June 2006 cover story, “the handful of state abortion bans that were passed before Roe but never formally repealed would arguably spring back to life.” As Rosen’s scenario suggests, the 1973 Roe decision did not so much kill off state abortion laws as leave them frozen in time. In eleven states, statutes banning abortion are still on the books. If Roe were to be overturned, Rosen theorizes, a governor or attorney general could step forward to support these “miraculously rejuvenated abortion bans,” and abortion could be drastically limited or altogether outlawed.
With this in mind, it is edifying to look through the Atlantic archives and find a range of earlier articles on abortion. Pieces written before Roe offer snapshots of the days when abortion was a matter of state law rather than federal jurisdiction. What emerges is a portrait of a country in which white, middle-class women could obtain safe, sterile abortions while others languished in dark alleyways. The debate did not end when Roe made abortion available across racial and economic lines; articles written after 1973 continue to champion abortion rights or argue for Roe alternatives. Taken together, these articles suggest that Rosen’s scenario is not as distant or implausible as many Americans might wish it to be.
In August 1965, The Atlantic published the story of an East Coast housewife, married with three children, who found herself confronting an unwanted pregnancy. The woman—who signed her piece “Mrs. X”—was in her late forties, as was her husband. Neither felt up to another round of sleepless nights, diaper changes, measles, mumps, and concussions. Finances were tight; Mrs. X was reluctant to give up her part-time secretarial work to care for another infant, and her husband had managed to save just enough money to put three children through college, not four. All of this seemed reason enough to terminate the pregnancy.
Mrs. X’s story is strikingly pragmatic and suburban. Rather than combing the Bowery, Mrs. X began her project by donning her reading glasses and settling down with a book called Pregnancy, Birth, and Abortion.
I discovered that abortion is an operation that all med students learn, even if they don't get much chance to perfect techniques; that of the institute's sample, only a minute percentage of women had suffered either physical or psychic aftereffects; and that while the authors made no attempt to estimate the number of abortions performed every year in the United States, it was plain that even without the Good Housekeeping Seal of Approval, I had lots of company.
Conducting a quick survey of five “intelligent, well educated” friends, Mrs. X discovered that three had had abortions, and all were willing to help her find a respectable physician who would perform one. She soon found a doctor who was willing to flout state law and take on her case. His fee was reasonable, his instruments were sterile, and Mrs. X’s discomfort was minimal. Within five days, she was back to her old self: a 1960s housewife and mother of three, sans fetus.
By 1969, a number of states had relaxed their abortion laws, and California had ruled in People v. Belous that “every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion.” In June of that year, Harriet Pilpel wrote an article entitled “The Right of Abortion.” In her most compelling argument, Pilpel also pointed out that the abortion laws of her time discriminated against black and Latina women. Throughout the 1960s, she wrote, white women were able to obtain abortions in sterile, private hospital rooms, under the rubric of “psychiatric” care. During the same time period, black and Latina women accounted for 78 percent of all abortion deaths in New York City. Abortion legislation, then, came down to “the rights of women, rich and poor, black and white, to equal protection of the law—that is, to get proper medical treatment without discrimination on the grounds of race, color, or income.”
The idea of racial equality came into play six years later in the case of Kenneth C. Edelin, an African-American doctor who performed a late-term abortion on a minority woman in a Boston hospital. Abortion was by this time protected by Roe, but Edelin’s case highlighted the fine semantic line between abortion and murder. According to a May 1975 Atlantic article by Seth Mydans, Edelin cut open the uterus of a seventeen-year-old girl after less-obtrusive abortion methods failed. The fetus later turned up in the hospital morgue, and local investigators pressed the case, arguing that the baby had been technically “born” the moment it was peeled from the wall of the womb.
In the trial that followed, medical professionals offered conflicting testimonies about the twenty- to twenty-four-week-old fetus’s ability to live on its own. A witness for the prosecution testified that the fetus could have drawn breath outside its mother, even as defense witnesses looked at slides of lung tissue and concluded the fetus had breathed no air. Although the doctor denied charges that he had held the fetus motionless for three minutes and watched it struggle and die, he readily conceded that his aim had been to end the pregnancy, not deliver a live baby, an act that “would have been contrary to the wishes of the mother.”
After the jury found him guilty of manslaughter, Edelin reiterated his belief that as an obstetrician, particularly one serving a minority population, it was his duty to respect abortion as “a woman’s right” and make it available to women of all races and backgrounds. “The only humane thing we can do is make sure that when they make that choice they have the opportunity to make it under the best conditions possible.”
Due in large part to articles like Mydans’s, the Edelin case attracted nationwide sympathy, and an appeals court overturned the conviction at the end of 1976. Edelin went on to become the chairman of Planned Parenthood, a dean at Boston University School of Medicine, and a leading figure in the pro-choice movement.
Over the next two decades, the idea that all women had the universal “right” to terminate their own pregnancies provoked a significant backlash. In April 1990, a piece entitled “Feminism and Abortion” challenged this notion. “The obvious objection to this argument is that a fetus is not just part of a woman’s body,” writes author Martha Bayles. “Equal rights are not enough when it comes to abortion, a decision that must balance a woman’s rights against those of others, such as fetuses and family members.”
Bayles rejected the idea that the phrase “women’s freedom” has any place in the abortion debate. She asked readers to consider a scenario in which a pregnant teenager defies her mother by terminating a female fetus. “In the one instance, she is depriving an older female of a grandchild. In the other, she is depriving a younger female of life. Compared with such deprivations, the idea of striking a blow for women’s freedom seems pretty abstract.” The real problem, she insisted, is that the rallying cry of “gender equality” had been supplanted by the idea of female superiority.
In a September 1995 article, George McKenna challenged Roe from another angle, taking issue with the Court’s decision that abortion was a private matter as opposed to a public one. He likened the abortion question to the debate over slavery that played out during Abraham Lincoln’s presidential race against Stephen A. Douglas. During the campaign, Douglas told voters that slavery was a matter best judged by moralists and theologians, not by courts or lawmakers. “I do not discuss the morals of the people of Missouri, but let them settle that matter for themselves,” Douglas proclaimed in an 1858 speech. “…It is for them to decide the moral and religious right of the slavery question for themselves within their own limits.”
Lincoln, in contrast, was appalled by slavery, viewing it as “a cancer—or a ‘wen,’ as he called it…. If it ever metastasized, spreading into new territories, it could never be stopped.” Yet instead of proposing a nationwide ban on slavery, Lincoln first sought to contain the problem. He even went so far as to hint that he might be willing to protect slavery in the existing slave states, and at one point, he refused to allow one of his generals to emancipate slaves in South Carolina, Georgia, and Florida. At the same time, he did everything in his power to keep slavery from taking hold in the newly incorporated lands of Kansas and Nebraska.
Based on this model, McKenna proposed a “Lincolnian position on abortion.” He urged political candidates to acknowledge that “abortion is morally wrong. It violates the very first of the inalienable rights guaranteed in the Declaration of Independence—the right to life.” However, he suggested that candidates follow this statement with a pledge: “If I am elected, I will not try to abolish an institution that the Supreme Court has ruled to be constitutionally protected, but I will do everything in my power to arrest its further spread.”
While liberal voters would be unlikely to see such a position as a “compromise,” the last presidential election revealed that a significant number of voters would like to see abortion rights limited, if not altogether eliminated. In January 2005, as George W. Bush began his second presidential term, the liberal writer Benjamin Wittes argued in an Atlantic piece that pro-choice activists should “surrender and let Roe die.”
The problem, Wittes explained, is that abortion rights do not in fact have clear roots in the Constitution. For that reason, the court ruling in Roe v. Wade stands on shaky judicial ground. “Consequently, a pro-lifer who complains that she never got her democratic say before abortion was legalized nationwide has a powerful grievance,” writes Wittes. “And there’s nothing quite like denying people a say in policy to energize their commitment to a position.”
Fortunately for pro-choicers, Wittes continues, the same process can work both ways. If Roe were to be overturned, liberals would be spurred to action. Wittes believes that enough Americans want abortion to be legal “at least some of the time” that, in a post-Roe scenario, state laws protecting abortion would spring up relatively quickly. Such laws, according to Wittes, would secure abortion rights more thoroughly and more permanently than a court ruling ever could.
Wittes concludes that “the costs of defending Roe have grown too high.” He encourages pro-choice Democrats to “let go of Roe” and mobilize their ranks, resuming the fight on legislative ground. “The insistence on judicial protection from a political fight that liberals have every reason to expect to win,” he concludes, “advertises pointedly how little they still believe in their ability to persuade.”