Today is the 45th anniversary of the embattled decision that gave physicians the right to perform an abortion—but what about the woman seeking one? To save abortion, it may be time to rewrite the law.
It has now been 45 years since Roe v. Wade, the 1972 Supreme Court decision that allowed abortion to become legal in all 50 states in the nation. Some would say 45 years is a long time—and I tend to agree.
Maybe it’s time to let it go.
Don’t get me wrong, Roe was a ruling utterly appropriate nearly half a century ago. It stopped women from being forced to buy plane tickets, train tickets, or otherwise organize in order to travel to a different state (or country) that allowed legal abortion. And it stopped those who couldn’t manage those logistics from seeking out dangerous practitioners, trying do-it-yourself-miscarriage methods, or carrying a child to term against their will.
But Roe’s biggest flaw is that it emphasized a physician’s right to perform an abortion without fear of it being a crime over a patient’s right to terminate a pregnancy if she chooses. And that is a distinction that nearly five decades later we really must address.
As Jeffery Toobin wrote in The New Yorker in 2013, Roe was a decision drafted primarily by Supreme Court Justice Harry Blackmun, a former general counsel for the Mayo Clinic in Minnesota. “In keeping with his predilection for his former colleagues, he emphasized the rights not of women, but of doctors: ‘The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated,’” Toobin wrote. “The word ‘physician’ appears in Roe v. Wade 48 times, the word ‘woman’ 44 times.”
Some of that was addressed in later abortion rulings, such as 1992’s Planned Parenthood v. Casey, where the idea of an “undue burden” on the right of a patient to obtain an abortion was established, but it is still undeniable that the foundational case for which legal abortion was anchored is less about a woman getting an abortion than the “doctor” providing it.
The road to reproductive rights is paved with this sort of paternalistic pandering. From “informed consent” to waiting periods to the tried and failed attempts at passing “spousal consent” legislation, most restrictions are geared toward making doctors and spouses—and, as implied, men—the gatekeeper to making sure pregnant people truly understand what they are agreeing to when they say they want an abortion.
Accessing abortion in the ’70s, ’80’s, ’90s and even early 2000s was a very different process than it is today, however. Abortion clinics, once amply available in every state in the U.S., are now dwindling in number, with 77 percent closed since their highest point in 1991. Medical research has shown that nurses can easily perform early non-medication abortions with vacuum aspiration, making it possible for medical professionals beyond doctors to offer terminations if abortion opponents weren’t so determined to stop this expansion to other states. About two-thirds of all abortions are performed in the first eight weeks now, as opposed to 48 percent in the mid-1980s. Plus, the introduction and spread of medication abortion is offering an opportunity to remove the “doctor” from the equation altogether.
When it comes to actually stopping abortions though, the pro-life movement has had only limited success in the decades since the Roe decision. While abortions are occurring at a lower rate than at any point since it became legal, the lack of increase in the birth rate implies not that there are more people giving birth after an unplanned pregnancy, but that these pregnancies themselves are happening far less often thanks to sex ed and birth control.
Where abortion opponents have succeeded the most, however, is in shutting down clinics and making those who need abortions work harder to obtain them. They’ve focused the fight on the doctor’s right—not the woman—just as Blackmun did in his ruling. By making doctors responsible and criminally vulnerable by new abortion restrictions, opponents are playing out Blackmun’s ruling to its logical conclusion: end a doctor’s right to perform abortions without legal penalty and abortion goes back to being the underground procedure the Supreme Court brought out of the back-alleys in 1972.
Abortion today is vastly different from how it was in the 1970s and ’80s. But many of the gains that could have been made from abortion being a less invasive, less physician-dependent procedure have been preemptively blocked by the anti-abortion movement long before they even had a chance to be in effect. By making RU-486 a highly regulated drug, and one that physicians can’t simply prescribe and have filled at a pharmacy, getting an abortion in the first nine weeks still remains just as hard to access as if it were always just done via aspiration. Add to that the model legislation that created bans on telemedicine abortion in 19 states—in many cases before any sort of program was even proposed—another avenue was cut off even despite the fact that the doctor-based gatekeeper model would have remained in place.
Roe remains an aging, antiquated approach to ensuring abortion remains legal not just because it revolves around a question of viability that has become murkier as time and science advance, but because it still fails to center the right of the woman to terminate if that is her decision. Abortion opponents oppose it because it doesn’t address the “humanity” or “personhood” of the unborn, but the truth is it does not do enough to address the humanity or personhood of the pregnant person, either. Roe took the legality of abortion out of the states—a paternalistic governmental power that was deciding what happened with women’s bodies—and gave it to doctors to decide what could happen with women’s bodies, instead.
Obviously, in a Trump-drunk world full of abortion opponents holding every level of government, just hanging on to Roe is still a necessary goal and unfortunately a major accomplishment if we can. But long time or short, they won’t be in power forever. The day will come when we will be able to set policy again federally, and we need to be prepared. We need to create a blueprint that affirms the decision and desires of those who are pregnant, and plans for the continuing likelihood that abortion can be performed more independently and with less medical intervention necessary.
And that is a future that we can already start laying the groundwork for by attempting to dismantle the trend of punishment for pregnant people who take abortion into their own hands when a legal clinic abortion isn’t a physical or financial option. We can do that even now by demanding that as states continue to introduce or revamp “fetal homicide” bills to make it a crime if a developing pregnancy is ended by anyone other than a doctor in a legal abortion clinic—regardless of the gestational age of the embryo or fetus—these bills provide exceptions that say the pregnant person cannot be charged. Anti-abortion leaders have long stated that they have no desire to send “a desperate pregnant mother to jail.” Let’s see that statement codified in past and future bills.
Roe has been the ruling of the land for four and a half decades, and in that time millions of people have been able to access legal, safe abortion care. But as we close in on half a century of legal abortion, that promise that those with unwanted pregnancies could choose whether or not to give birth fades more every year, especially for those of color, in rural communities, and in poverty. We need more than just a vague promise that as long as there are doctors left to perform abortions, the right to choose is safe. We need a true commitment to abortion as a right—for every person who can get pregnant, when and if that person decides they need it.
Now may not be the time to let Roe go, but it is coming, and I for one can’t wait to say good-bye and replace it with something better, stronger, and that respects abortion as a fundamental right that under no circumstances can be denied for the person seeking it.
AN INDEPENDENT FREE PRESS HAS NEVER BEEN MORE IMPORTANT.
Your financial support helps DAME continue to cover the critical policies, politics social changes impacting woman and their allies.