Preferred Citation: Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley:  University of California Press,  c1997 1997.

Epilogue: Post-Roe , Post-Casey

Post-Roe , Post-Casey

The legalization of abortion brought immediate benefits to women. Open access to legal abortion replaced the world of illegal abortion. After Roe v. Wade , women in the United States could look in a phone book for a physician-abortionist. Abortion clinics made the procedure widely available.[1] State and federal programs extended coverage of abortion to low-income women. Legal, safe abortions became accessible to women across class and race, rather than the privilege of a few. In Chicago, two abortion clinics opened and Cook County Hospital and a handful of other hospitals began providing a small number of abortions. The publication of abortion providers and their office hours on the front page of a Chicago weekly illustrated the changed legal climate.[2] The legalization of abortion freed women from the fear of police raids and arrests and from wondering whether the "Dr." was in fact a skilled doctor or a "butcher." The abortion committee system was dismantled. Legal abortion was safe, safer than normal childbirth.[3]

Making abortion legal improved public health: overall maternal mortality dropped dramatically. In New York City, maternal mortality fell 45 percent the year after the state legalized abortion. "In 1971," city health officials reported, "New York City experienced its lowest maternal mortality rate on record." California and North Carolina reported similar improvement.[4] Septic abortion wards closed. As a public-health measure, the legalization of abortion represented an improvement in maternal mortality that ranks with the invention of antisepsis and antibiotics.[5] In countries where abortion remains illegal, abortion is a


significant contributor to maternal morbidity and mortality.[6] The open availability of safe abortions in the U.S. benefited in particular low-income women and women of color, who had had the least access to skilled practitioners and were most likely to be injured or die as a result of illegal abortion. In New York City, over half the women who had abortions after legalization belonged to minority groups.[7]

The legalization of abortion strengthened patients' rights. The recognition of a fundamental right of women to make decisions about pregnancy reinforced the rights of patients to be protected against coercive medical treatment and to make decisions regarding their own medical care. Women's reproductive rights challenge male supremacy uniquely, but patients' rights and reproductive rights alike challenge medical authority. Both seek greater medical and legal acknowledgment of patients' decision making and autonomy. Yet this is not simply a battle between doctors and patients, because, as we have seen, the medical profession is not uniform in its thinking or practice. Indeed, this study has uncovered a long tradition of physicians listening to and learning from patients and treating health care as a partnership. A significant segment of the medical profession prefers a more egalitarian, rather than authoritarian, mode of physician-patient relations.

Contemporary disputes over living wills, the right to die, and the right to refuse treatments against medical advice, as well as abortion, all attest to continuing conflict among Americans about patients' rights, appropriate use of technology, and the proper way to live and die. The battles reveal sharp division over both how to respond to difficult issues in medical care and who should make these decisions. Our society is in the midst of a deep philosophical and political struggle over whether there are absolute answers to medical dilemmas that shall be applied to all citizens—whether those answers come from medical, state, or religious authorities—or whether a democratic society must accommodate a multiplicity of moral viewpoints and allow individuals to make difficult (and differing) decisions for themselves.

Finally, the legalization of abortion strengthened civil liberties. As the state pressed the medical profession into investigating illegal abortion, due process rights guaranteed citizens under the Constitution were eroded. When doctors and hospital staff questioned patients at the behest of the state, physicians became police, patients became suspects. Medical surveillance of patients—whether for the progress of pregnancy, the use of illegal drugs, or the presence of stigmatized infectious diseases such as HIV—compromises constitutional protections


against unreasonable search and seizure by the state as well as the rights to bodily integrity and privacy. Furthermore, the acceptance of this policing function by medical personnel diminishes respect for patients, damages patient confidentiality, and threatens the health of the patients they serve. As public-health professionals understand, making it dangerous to present a particular malady to health-care workers results in people delaying or avoiding care and risking their lives in order to avoid punitive measures. Using health-care professionals to serve as the state's investigators is dangerous public policy.

A backlash in reaction to the expansion of women's reproductive rights and sexual freedom, nurtured by the Catholic Church, Protestant fundamentalists, and the New Right, developed into an intense minority movement in the 1980s and 1990s. The denial of public funding for abortions for low-income women and federal employees was the first defeat of the coalition that won Roe v. Wade . Illinois Congressman Henry Hyde sponsored the restrictive "Hyde Amendment" passed by Congress in 1977. Abortion opponents have succeeded in creating a new discourse, given the fetus new meaning as a human "life," and labeled abortion "murder." Furthermore, the antiabortion movement has projected a fetal "voice" to compete with and discredit the voices of real, live women, a group that only recently spoke of its experiences in public, political arenas. The fetus has been used to shift the debate away from women and their narratives about the crimes of illegal abortion.[8] Silencing the political voice of women, however, is only one aspect of a far-reaching project. The antiabortion discourse has overshadowed interdenominational religious opinion that supports legal abortion,[9] and the antiabortion movement has organized to prevent the practice of legal abortion. The picketing of clinics and the homes of abortion providers and patients has become routine; a climate of hatred has fostered bombings of clinics and assassinations of physicians and clinic personnel.[10] The related assault on lesbians and gays harms the feminist struggle for female sexual independence. The New Right has pushed forward a conservative political agenda hostile to feminism, sexual freedom, freedom of speech and religion, and civil rights.[11]

The women whose reproductive rights are most abridged and vulnerable to attack are teenagers and low-income women. The New Right expresses particular hostility toward sexually active teenage girls, whom they perceive as beyond parental, specifically paternal, control.[12] This is a change; the plight of pregnant single women garnered the greatest sympathy at the turn of the century and evoked sympathy among many


reformers in the 1960s. Single women were then perceived as victims; today's antiabortion movement blames them for being sexual actors. Conservative attacks on "welfare"[13] and abortion are related, for both seek to control women and their reproduction. The efforts to dismantle welfare and to require that minors notify their parents or obtain their consent for abortion are both intended to hurt young women and to punish them for their sexual behavior. In calling for an end to Aid to Families with Dependent Children (AFDC), or for mandatory sterilization or contraception for poor women, conservatives attempt to stop one group of women (stereotyped as poor black women) from bearing children. In restricting abortion use, they attempt to force a different group (middle-class white women) to bear children. The racial stereotypes obscure the fact that both black and white women use legal abortion and social assistance; few are teenagers. Conservatives hope that making pregnancy a punishment for sex will make young (white) women either forego sex or enter marriage. Sexism, racism, and elitism are embedded in the twin assault on welfare and abortion.

Neither welfare benefits nor access to legal abortion guarantees reproductive rights. Real reproductive freedom for women requires that all women, regardless of race, class, age, sexual orientation, or marital status, be able to avoid unwanted childbearing through the use of contraception and abortion and be able to bear children without being stigmatized, impoverished, or compelled to give up their education, employment, or children.

If Roe v. Wade were to be overturned and abortion made illegal again, the history of when abortion was a crime suggests that the results would be dire indeed. The practice of abortion might dip in response to pressure, but it would not stop. Women would once again besiege physicians and other health-care workers with requests for abortion. Enforcement of new criminal statutes would no doubt be patterned on the old system. State authorities would again expect medical personnel to assist the state by reporting, interrogating, and physically examining women suspected of having abortions; police would revive the practice of raiding abortionists' offices and capturing women. Any woman who miscarried would be treated as a potential criminal and subjected to medical examination, which could include internal "viewing" via ultrasound. Medical mistreatment of women would become routinized as the health-care system became further enmeshed in the state's law enforcement apparatus. If abortion is made illegal, some women will die; many more will be injured. The old abortion wards


will have to be reopened, a public-health disaster recreated. Making abortion hard to obtain will not return the United States to an imagined time of virginal brides and stable families; it will return us to the time of crowded septic abortion wards, avoidable deaths, and the routinization of punitive treatment of women by state authorities and their surrogates.

However, the past will not be duplicated in every detail if abortion is again made illegal, for the historical circumstances differ. In the last twenty-five years, abortion has been politicized in new ways. We can anticipate the "private" enforcement of the laws by the antiabortion troops that now harass abortion providers and women who seek abortion.[14] Women could be routinely prosecuted and imprisoned for having abortions, which they were not during the era of illegal abortion.[15]

It is not impossible to imagine women in the United States being subjected to constant state surveillance of their reproductive systems similar to that recently experienced in Romania.[16] The monitoring of female menstrual cycles, investigation of miscarriages, and the transformation of prenatal care from checkups to checks that all pregnancies are progressing to term are conceivable in the United States. With the rise of an antiabortion movement that proclaims the primacy of the fetus, prenatal care and medical thinking have already moved in the direction of putting the fetus ahead of the pregnant woman. Too often pregnant women are perceived as vessels for ensuring the best outcome of a future child. The obsessive focus on the behavior of pregnant women allows Americans to overlook the social and economic roots of this country's high infant mortality rates as well as the general population's difficulty in improving its eating habits or eliminating smoking and alcohol and drug abuse. Some women have been charged with "child abuse" of a fetus in utero; others have been surgically delivered by cesarean section against their will. Predictably, it is mostly low-income women, minority women, or women who hold religious views different from those of their doctors who have been charged or forced to undergo such surgery.[17]

Discounting the rights of pregnant women weakens everyone's rights as patients. If a pregnant woman cannot reject a cesarean section—whether for religious, political, or personal reasons—then any woman can be forced to submit to procedures deemed necessary for the fetus; any patient can be forced to comply with treatments deemed essential by medical personnel. This society rejects the sacrifice of one person in order to save another considered more important; an organ may be do-


nated voluntarily, for example, but donations may not be obtained through coercion. Reproductive rights are based on the same principle: women cannot be required to sacrifice their own health and lives in order to produce babies.

It seems unlikely that the U.S. Supreme Court will overturn Roe and Doe outright, but Roe v. Wade may be so thoroughly gutted by judicial and legislative action that it will be meaningless. In Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992) the justices "preserved" Roe on thin grounds.[18] Feminists should look carefully and not be fooled into thinking that abortion is still legal if it isn't. If legal abortion is so restricted that it is available only to rich women or to women whose lives are endangered by pregnancy or to women pregnant as a result of rape,[19] then abortion should be declared, in truth, illegal. Most women who have abortions now, as during the era of illegal abortion, do not fit these categories. Defending abortion on these grounds narrows the definition of reproductive rights and does an injustice to the majority of women. Even when abortion was illegal, there were always some legal, therapeutic abortions, and at certain moments, therapeutic indications were broadly defined. If legal abortion becomes available in only a few states or cities or only to wealthy women, whether as a result of law or successful antiabortion harassment campaigns, then the situation will match the pre-Roe era of illegal abortion.

As a result of the attack on legal abortion and the deference of elected officials and health-care providers to the minority leading the attack, the present increasingly resembles the pre-Roe period. One of the features of illegal abortion at its most restrictive was the inequity in access to safe abortions along racial and class lines. Although contraception and abortion are essential components of women's health care—and have demonstrably improved maternal mortality and morbidity in the United States—coverage of these necessary services is not uniform. Many private health insurance plans do not cover the abortions women need, though they cover sterilization procedures and delivery services.[20] Federally funded health care for government employees and for low-income people is perennially politicized; at the most it covers abortions only when pregnancy threatens the life of the "mother"[21] or when pregnancy results from rape or incest. A handful of states cover abortion services for low-income women, though much of this coverage is restrictive.[22] Place of residence is an increasingly crucial determinant of abortion availability. Today about one third of


American women cannot locate an abortion provider in their own county. In over 80 percent of American counties—and virtually all rural counties—no one is providing (legal) abortions. Some states have only one provider.[23] Having to travel long distances makes abortion impossible for some women, expensive and arduous for others.

A small group of doctors has shouldered the responsibility of providing abortions and, though their work has shielded others from persistent requests, they have received little public support from their profession. An appallingly small number of physicians are being trained in abortion; in 1991 to 1992, only 12 percent of the programs for residents in obstetrics and gynecology routinely taught first trimester abortions.[24] As medical educators fail to teach new doctors this basic procedure, the profession implicitly teaches other lessons: young doctors learn not only that abortion, though legal, is less than honorable, but that they need not listen to the expressed needs of women in particular or patients in general.

Hospitals have not re-formed therapeutic abortion committees, but state legislatures, with the sanction of the Supreme Court, have erected new barriers to abortion, including waiting periods, mandatory "counseling" invented to deter women from abortion, and parental notification or permission requirements. In Casey the Court found only the requirement that husbands be notified of abortions to be an "undue burden" to women seeking to exercise their right to abortion. Doe v. Bolton , which found measures designed to prevent women and their doctors from carrying out a decision to abort to be unconstitutional, has been quietly overturned. Furthermore, Webster and Casey eliminate the trimester system outlined in Roe (prohibiting state interference in the first trimester of pregnancy and limiting regulation in the second). In these recent cases, the Court has given greater prominence to "potential life" throughout pregnancy.[25] Most discouraging, illegal abortionists are in business again; women are dying again because of illegal abortions. They tend to be low-income women, women of color, or minors trying to avoid parental notification requirements.[26] Perhaps we have not yet reverted to the pre-Roe years, but we are close.

However, as forceful as the backlash against legal abortion is, it has not succeeded in erasing the advances in reproductive freedom. Indeed, the strength of the reaction may serve as a rough measure of both the radical implications of legal abortion and the strength of feminism.[27] In contrast to the image achieved by the opponents of abortion, the majority of Americans support legal abortion. Furthermore, that support has gotten stronger over time, and the proportion of Americans who


believe abortion should be illegal in all circumstances has fallen to less than 15 percent.[28] There are positive signs of growing activism and renewed alliances at both the local and national levels in support of abortion and reproductive rights. Physicians and health-care organizations have begun providing abortions in defiance of the New Right; physician assistants in Montana and Vermont are already filling the gap in abortion providers, and some nurse-practitioners and nurse-midwives have expressed willingness to do the same.[29] The Accreditation Council for Graduate Medical Education is trying to rectify the de-skilling that has occurred among doctors by requiring training in abortion for future specialists in obstetrics and gynecology.[30] After a twelve-year hiatus, Cook County Hospital recently began providing abortions for low-income patients.[31] New pharmaceutical methods of inducing early abortions are being found and tested.[32] Following years of harassment of patients and providers at clinics, state and federal measures have been passed to protect clinic access.[33] African American women are increasingly visible in the movement for reproductive rights; their organizations enlarge the focus and bring to public attention the need for health care and respectful nonracist treatment as well as legal abortion.[34] National organizations such as NOW and Planned Parenthood work for both welfare and abortion rights. Feminist organizations that sometimes avoided the issue of teenagers' access to abortion now actively oppose parental notification requirements.

The legalization of abortion was a positive development for all women, not just those who seek abortions. Legal abortion represents an expansion of women's actual ability to control their reproduction, their sexuality, and their lives. The very availability of legal abortion provides a measure of freedom and control even for women who never use it, both because it can be counted on as a backup and because it symbolizes female sexual autonomy. The legal right to abortion sends the message to all women (and to men) that women have power over their own lives and are not controlled by men, the state, or the church. Finally, the ability to avoid motherhood helps to create new meanings for motherhood and fatherhood—as chosen and desirable life experiences rather than roles forced on women and men, willing or unwilling. The restriction or reversal of abortion rights sends the opposite message: women cannot be trusted to make moral decisions about children and family, but must be overseen and regulated by men; procreation is a state mandate not a choice; women's lives, sexuality, and bodies are not their own.


The affirmation of women's right to decide whether to terminate or carry a pregnancy to term was rooted in more than a century of subterranean belief and behavior. The transformation of law that began in the mid-1960s and culminated in Roe and Doe grew out of women's longstanding demand for abortion and ability to communicate, first to individual doctors in private conferences and then to society as a whole in public arenas, their need for abortion. The movement to decriminalize abortion built upon a century of physician-patient relationships in which doctors listened to women and helped them obtain abortions. When feminists called for "Abortion on Demand," they echoed generations of individual women before them. As the women's movement articulated a sense of women's right to control their reproduction, they brought into the open what had been popularly accepted for generations and gave it new meaning as a human right. In so doing, they transformed the abortion discourse. For the first time, public discussion of abortion included the perspective of the millions of women who needed and had abortions.

Women themselves had taken abortion out of the private and into the public. Women's reproductive rights were never protected or guaranteed in the private sphere; they had to be brought into the public, political sphere to win recognition. Despite the personal dangers of being publicly exposed and associated with the crime of abortion, women made the private secrets of their lives public knowledge in order to change policy and improve the lives of women and girls. "Private" discussion of abortion with selected physicians, relatives, friends, and others had allowed some women to obtain abortions while protecting them from public exposure. But keeping these matters private simultaneously sustained the illegal and stigmatized status of abortion. Women's right to "privacy" in matters of sexuality and procreation, a key concept underlying the legalization of abortion, was won only through public debate, political organizing, coalition building, and collective action.


Epilogue: Post-Roe , Post-Casey

Preferred Citation: Reagan, Leslie J. When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973. Berkeley:  University of California Press,  c1997 1997.