Abortion and the Law in America (2020) offers a comprehensive legal history of abortion rights in the US. It highlights the social and cultural shifts that have contributed to the abortion debate and looks closely at the types of arguments invoked by both sides.
Content Summary
Genres
Introduction: What’s in it for me? Learn how the abortion debate in the US has changed over time–and how it has reflected social and cultural shifts.
The modern American abortion conflict has been shaped by both rights- and policy- based arguments.
After Roe v. Wade, the 1970s and ‘80s saw a rise of cost-benefit strategies.
In the late 1980s and early ‘90s, debate about the relationships between abortion, the family, and sex equality evolved.
From the late 1990 until the early aughts, the breach between the opposing sides of the abortion conflict grew wider.
No matter what happens to Roe v. Wade, we shouldn’t assume that we’re coming to the end of the debate.
Final summary
About the author
Table of Contents
Overview
Read an Excerpt/PDF Preview
Review/Endorsements/Praise/Award
Video and Podcast
Genres
History, Politics, Society and Culture, Constitutional Law, Gender Studies, Feminism, Politics
Introduction: Learn how the abortion debate in the US has changed over time–and how it has reflected social and cultural shifts.
We know that the American abortion conflict has been long, ugly, and polarizing. Since the landmark ruling of Roe v. Wade in 1973, the pro-choice and pro-life movements have never managed to reach any kind of consensus. As far as the constitution is concerned, the right to choose to terminate a pregnancy can’t exist alongside the right to life for an unborn child. And so the division between the two sides has only deepened further with each passing decade.
Because of this, commentators have often suggested that the legal and political abortion debate hasn’t fundamentally changed in the last 50 years. It’s true that the two opposing sides haven’t ever tried to compromise, but the legal history of abortion in the US is actually much more complex than it’s described. And for that reason, its future can’t be easily predicted.
While we think that everyone should have an informed opinion on this issue, we won’t be arguing for either side here. Mary Ziegler, the author of Abortion and the Law in America, doesn’t try to do this either. Like her book, this summary explores the history of the issue in the United States from a legal perspective – how it started, how it became more contentious, where we are now, and where we might be headed.
In this summary, you’ll learn
the difference between rights-based and policy-based claims;
how Americans’ changing attitudes about sex equality and the family impacted abortion rights; and
how the costs and benefits of legal abortion eventually became central to both pro-choice and pro-life arguments.
The modern American abortion conflict has been shaped by both rights- and policy- based arguments.
Let’s begin with a commonly held belief: the US abortion conflict reflects a clash between two sides with incompatible demands. One side argues for the constitutional rights of the fetus. The other argues for the constitutional right of a woman to choose to end the pregnancy. Right?
Well, this is only partially true. These two rights-based claims are the foundations of both the pro-life and pro-choice movements. But Mary Ziegler asserts that, since Roe v. Wade, the conflict has shifted toward debating policy-based claims. These refer to the costs and benefits of abortion, often weighing the positive and negative impacts on women and communities of color. They also tend to philosophically speculate on whether society at large is better or worse off since Roe.
Both movements have pointed to rights-based or policy-based claims at different times and in different ways depending on the cultural and political moment. Sometimes, they strategized well, offering claims that resonated with the American people and lawmakers. Sometimes they didn’t – and they lost ground to the opposing side. And sometimes, their strategies brought them short-term gains but ended up complicating their movement’s future legal progress.
To get a handle on how things got so complicated, let’s start at the beginning – before Roe.
Abortion in the nineteenth century went from being legal to being criminalized in some states by 1880. Opposition to abortion was racially driven. The birth rate of Anglo-Saxon women was plummeting while the population of Southern and Eastern European immigrants was rapidly increasing. Opponents argued that “inferior” genetic stock would overwhelm the country. The solution? Make abortion less accessible through legal means.
In response, early twentieth-century physicians and activists advocated for national legalization, arguing that abortion was often necessary to save women’s lives. But as obstetric care improved in the ’40s and ’50s, this justification grew less credible. The argument shifted to pointing out that making abortion legal and accessible would improve women’s physical and mental health.
Abortion foes responded by insisting that abortion had no health benefits – that it actually caused women emotional trauma. But by the 1960s, both abortion reformers and pro-life groups moved away from making health-based claims, opting instead to focus on rights-based arguments.
That’s because it became clear that invoking women’s constitutional rights was the surest path to victory – particularly after two Supreme Court rulings.
One of them, Griswold v. Connecticut, was decided in 1965. This case addressed a Connecticut law that banned married couples from using birth control. The Court held that this law violated the Constitution, contending that the right to privacy was broad enough to include married couples’ use of contraceptives.
Still, both sides continued to use cost-benefit strategies to sway politics and public opinion. Pro-choice groups demanded the outright repeal of all abortion restrictions. Newly mobilized feminists, public health professionals, and population controllers insisted that all women should have a legal right to end their pregnancies – regardless of any costs or benefits. Planned Parenthood described abortion as a “medical procedure” that was “the right of every patient.” But pro-life groups maintained that the Constitution already protected a right to life for the unborn child.
In 1973, the abortion-rights lawyers litigating Roe v. Wade highlighted arguments about the rights at stake in the abortion decision – in particular, the right to equality and the right to privacy. They also pointed to certain policy costs and benefits. But, ultimately, it was the rights-based claims that prevailed.
Roe v. Wade held that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” After this historic ruling, rights-based claims seemed more important to the ongoing abortion debate than ever.
Before Roe, some antiabortion activists wanted to propose a constitutional amendment that would outline the rights of the unborn child. But organized antiabortion groups – like the National Right to Life Committee, or NRLC, and Americans United for Life, or AUL – weren’t on board. To them, asking for an amendment was admitting that the Constitution didn’t already protect fetal rights.
But after 1973, that all changed.
After Roe v. Wade, the 1970s and ‘80s saw a rise of cost-benefit strategies.
Now that we’ve traced the origins of the modern abortion debate, let’s take a look at the immediate aftermath of Roe v. Wade.
Not even a month after the Court had ruled in favor of abortion rights, pro-lifers rallied around that once-unpopular idea of a constitutional amendment. The amendment had to do more than merely overturn Roe – but leaders of antiabortion organizations were divided on the specifics.
Eventually, the larger antiabortion groups realized that changing the Constitution would take awhile. So they focused their attention on short-term goals, like trying to limit legal access to abortion. After all, the right to have an abortion wouldn’t mean much if it were impossible to get one.
Even they didn’t predict just how successful they would be. Lawmakers were immediately on board with their incremental restrictions and started drafting legislation that would ban the use of public funds for abortions. But in order to get these restrictions passed, antiabortion lobbyists had to come up with an argument beyond the right-to-life – since a funding ban couldn’t actually prohibit any abortions.
So they focused instead on the negative consequences of abortion funding. For example, they claimed that funding was detrimental for the poor and people of color. How did they justify this claim? Well, they saw an opportunity to connect population control groups with the abortion-rights movement. They pointed out that Margaret Sanger, the founder of Planned Parenthood, had had ties to the eugenics movement. Even though Sanger had died in 1966 and the organization had new leadership, pro-lifers maintained that abortion funding was racist.
Finally, in 1977 – just four years after the Roe decision – Congress approved the Hyde Amendment, which banned all Medicaid funding for abortions.
Before we continue, it’s important to note that the seventies were a rollercoaster – and the issue of abortion funding was particularly affected by the shifts in cultural attitudes about the welfare state. At the beginning of the decade, it seemed possible that the government might guarantee a minimum income to all Americans. But by the end of the decade, both parties were supporting work requirements and denouncing welfare fraud.
Abortion-rights supporters tried to challenge the Hyde Amendment. But the Court rejected their arguments on the basis that the poor had no right to financial support they were unable to secure for themselves.
Then, in 1980, Ronald Reagan was elected president – heralding the rise of small-government politics. It was around this time that an allyship between antiabortion groups and the GOP began to take root. Pro-lifers realized that if they could influence the membership of the Supreme Court through their political ties, this would give them a better chance of overturning Roe v. Wade. And although they weren’t always successful, they were persistent – which often helped them make small gains.
And so the pro-life agenda had evolved yet again, in a strategic response to the politics of the time. That’s how arguments about the costs and benefits of abortion took center stage by the early 1980s, changing the terms of the abortion debate for decades to come. So how did the abortion-rights activists respond?
Well, there wasn’t a single uniform response – which didn’t help their cause. At first, leaders from groups like NARAL, or the National Abortion Rights Action League, and Planned Parenthood maintained a rights-based defense; they argued that the new abortion restrictions violated the Constitution. This alienated some nonwhite and socialist feminists who believed that the pro-choice movement needed to adopt an agenda that included support for contraception, sex education, and childcare. They also felt that predominantly white activist groups had failed to explain the reasons why women needed legal abortion.
Eventually, the larger abortion-rights groups emphasized the benefits of legal abortion – particularly for low-income, nonwhite, or disabled women. But they would reconsider this strategy later in the decade as Supreme Court membership changed and Roe became increasingly at risk.
In the late 1980s and early ‘90s, debate about the relationships between abortion, the family, and sex equality evolved.
At the beginning of the 1980s, pro-lifers were emphasizing what they called the “costs” of abortion. Later in the decade, they specifically spotlighted the costs of abortion on the family. They claimed that abortion disenfranchised men while profit-seeking abortion providers exploited teenagers.
There were a few reasons why antiabortion groups chose this particular cost-based strategy. For one, they wanted to strengthen their partnership with the Republican Party. Even though they’d already gained the support of the GOP, they still had some concerns. They worried that Republican leaders feared a backlash on election day. They also worried about George H. W. Bush, the new Republican President, whose commitment to the movement was questionable.
Pro-life attorneys knew they needed to prioritize laws that would help GOP candidates win elections. They would also have to survive constitutional challenges in the courts. Family involvement mandates seemed to tick both boxes. Those are laws requiring a woman to obtain consent from her spouse or parents before getting an abortion – and, at the time, they enjoyed popular support. In fact, between 1973 and 1982, not one year passed without a state implementing a family involvement mandate.
Also in the late ’80s, the Court’s new conservative majority seemed poised to overturn Roe v. Wade. This meant that pro-choice groups had to strategize multiple defenses. Not only did they have to challenge the onslaught of family involvement laws, they also had to protect Roe.
Meanwhile, outside of the courts, a mostly Evangelical clinic-blockade movement was growing. Convinced that the incremental efforts to overturn Roe would never pay off, Operation Rescue urged other pro-lifers to stop waiting on the Court to take action. If they had to break the law and blockade clinics to stop abortions, so be it.
On the other side of the debate, the emergence of Operation Rescue encouraged pro-choice coalition building. Once NARAL and their allies banded together, they were better able to fight the multiple battles that confronted them at the turn of the 1990s.
The alliance of abortion-rights groups roundly condemned Operation Rescue – whose leadership was mostly male – as dimwitted, anti-women extremists. They defended Roe by embracing constitutional rights-based arguments more than ever. After all, Americans couldn’t seem to reach a consensus about whether abortion had benefits – and many seemed to support restrictions. Responding to the popular small-government politics of the time, pro-choice groups insisted that the government stay out of everyone’s business – including pregnant women’s.
Finally, pro-choice groups argued for sex equality in an influential 1992 Supreme Court abortion case that many feared would also overturn Roe v. Wade. The case, Planned Parenthood of Southeastern Pennsylvania v. Casey, considered the constitutionality of the restrictions in one Pennsylvania abortion law.
Arguments that linked accessibility of abortion to equality for women were essential in shaping the Casey decision. ACLU attorneys argued that if women were forced to carry their pregnancies to term, they could lose out on opportunities to pursue an education, launch a career, or start a business.
Ultimately, the Court retained what it called “the essential holding” of Roe – although it also upheld almost every disputed restriction in the Pennsylvania law. This outcome wasn’t ideal for either pro-choice or pro-life groups. But it did highlight the importance of cost-benefit arguments.
By the 1992 presidential election, the political climate had shifted completely. Bill Clinton, a pro-choice Democrat, had defeated George H. W. Bush. For the first time in over a decade, abortion-rights groups were playing offense, not defense.
They took control of the agenda by centering the health benefits of abortion access – an argument you may remember had come up previously. By building on the earlier work of mostly nonwhite feminist activists, pro-choice groups reframed the struggle as one for reproductive justice rather than rights. This agenda included abortion access, contraception, adequate housing, and quality childcare. NARAL and Planned Parenthood also called for the repeal of abortion-funding plans and abortion coverage in universal health-care legislation.
However, by the end of the 1990s, Clinton’s health-care reform had failed – and the renewed focus on health actually helped pro-life groups like AUL and NRLC regain influence. They emphasized claims about health damage done by abortion while accusing the mainstream media and medical establishment of hiding the truth about the procedure. From then on, the abortion wars intensified.
From the late 1990 until the early aughts, the breach between the opposing sides of the abortion conflict grew wider.
It wasn’t long before pro-choice groups were back on the defensive. By the late 1990s, major antiabortion groups were insisting that the health benefits of abortion were a myth. And so, for the next decade, both sides would become embroiled in a new fight. They wouldn’t just clash over the costs and benefits of abortion – they’d clash over which experts could be trusted to measure those costs and benefits.
This new stage of the conflict arose when abortion opponents proposed a ban on a second-trimester procedure called dilation and extraction, or D&X. If you haven’t heard of D&X, you might be familiar with another term for it: “partial-birth abortion.” This is the nonmedical term that was coined by the National Right to Life Committee in 1995.
Abortion providers described D&X as a surgical procedure that removed a fetus intact from the uterus. What’s more, leading medical organizations like the American College of Obstetricians and Gynecologists, or ACOG, contended that D&X was sometimes the safest option for women.
But the NRLC claimed that these experts weren’t telling the truth. By framing the procedure as immoral, and describing it in gruesome detail, they claimed it coarsened attitudes toward human life. They also insisted that preeminent medical organizations weren’t trustworthy. According to abortion opponents, groups like the ACOG merely parrotted whatever was considered “politically correct.”
So pro-lifers founded their own expert organizations – like the Physicians Ad Hoc Coalition for Truth, or PHACT. And the more they challenged the leading medical organizations that endorsed abortion, the more they damaged the reputation of the pro-choice movement.
Still, pro-choice groups fought to establish that D&X sometimes made the most sense for women. They spotlighted Colleen Costello, a conservative Christian woman, who underwent the procedure. Costello decided on D&X after finding out that her unborn daughter had a fatal neurological disease. She felt that choosing D&X would impact her future fertility the least.
And as the debate wore on, both sides argued about what should happen when medical experts disagreed. Who had the final say when a scientific matter was being disputed? And how should the courts treat and define scientific uncertainty?
After years of back-and-forth in the courts, Clinton’s Republican successor, George W. Bush, signed the Partial-Birth Abortion Ban into law in 2003. From this moment on, debates about science would have a major impact on the abortion wars. Whereas before the two sides argued about core values, now they argued about who counted as an expert and what type of evidence was valid.
No matter what happens to Roe v. Wade, we shouldn’t assume that we’re coming to the end of the debate.
In 2008, it seemed possible that the political tide might once again shift in favor of abortion rights. When pro-choice candidate Barack Obama won the presidency, abortion-rights groups thought he would restore Medicaid funding for abortion – since health-care reform was his priority. They also hoped he’d help push legislation that would codify abortion rights.
But they were quickly disappointed. Not wanting to jeopardize the passage of the Affordable Care Act, Obama insisted the bill would be “abortion neutral.” And yet, Republican lawmakers still managed to broker a deal with Obama that completely barred federal abortion funding under the ACA.
Furthermore, in 2010, ACA backlash helped Republicans take control of most state legislatures – and pass an unprecedented number of abortion restrictions. As the decade progressed, the two sides of the abortion debate would increasingly view each other not only as wrong about the costs and benefits of abortion, but as fundamentally dishonest. Conservatives and pro-lifers claimed that the ACA denied religious liberty and that Planned Parenthood prioritized profits over health. In response, pro-choice supporters argued that pro-lifers were misogynist opponents of women’s health care. They also focused on combating abortion stigma and stressing the benefits of abortion.
For example, organizations like Black Women for Wellness launched in order to fight for reproductive justice – including access to abortion, birth control, prenatal care, maternity leave, and childcare. And in 2015, when the House – but not the Senate – passed a law defunding Planned Parenthood, Amelia Bonow and Lindy West started the campaign #ShoutYourAbortion. Women used this hashtag to share their abortion stories online and dispel the stigma. The campaign grew rapidly, with the hashtag mentioned over 100,000 times in just 24 hours.
In the summer of 2016, abortion-rights supporters still had hope. Even though Republicans had managed to take control of both the House and the Senate in 2015, many assumed Hillary Clinton would soon be elected president. If Clinton replaced the late conservative justice Antonin Scalia, who’d passed away during Barack Obama’s term but whose seat was to be filled by the future president, the Supreme Court would likely expand abortion rights.
But in an election that surprised abortion-rights supporters, and many others, Donald Trump was ultimately victorious. He nominated conservative justice Neil Gorsuch to the court in 2017 and Brett Kavanaugh in 2018 – making the demise of Roe seem ever more imminent.
By 2020, the chasm between both sides of the abortion debate had grown wider than ever before. Although claims about the costs and benefits of abortion had set the terms of debate for the last few decades, pro-lifers began to invoke rights-based claims again. Since many expected the Court to soon overturn Roe, they could push abortion bans outright rather than lean on strategic restrictions. Pro-choice supporters, meanwhile, began proposing state constitutional amendments and statutes to protect abortion if Roe were overturned.
So, what’s next? Mary Ziegler believes that no matter what happens to Roe v. Wade, we shouldn’t assume that we’re coming to the end of the stalemate. Even if Roe is overturned, the battle will continue at the state level. And what both sides want – absolute constitutional protection – will likely never be delivered by the Supreme Court.
Final Summary
As we come to the end of the summary to Mary Ziegler’s Abortion and the Law in America, let’s review what we’ve covered.
The abortion debate in the United States may seem to be about constitutional rights – that of the unborn child vs that of bodily autonomy – but it’s actually much more complex. Pro-choice and pro-life activists have also argued about the different costs and benefits of legal abortion. And over the last few decades, these claims have become central to both the political debate and to Supreme Court decisions. Both sides have clashed over who has the expertise to determine these costs and benefits. In recent years, as the overturning of Roe v. Wade seems increasingly imminent, abortion foes have been returning to rights-based arguments.
The abortion battle in America has always reflected more than just foundational rights-based arguments regarding choice and life. It has shined a light on Americans’ clashing beliefs about poverty, the structure of the family, the health-care system, the social safety net, and the trustworthiness of the media, the government, and the medical establishment. And because of its constant shifting of values and tactics, it has always been – and will likely continue to be – unpredictable.
About the author
Mary Ziegler is Stearns Weaver Miller Professor at Florida State University College of Law and one of the leading authorities on the legal history of abortion in America. She is the author of Beyond Abortion (2018) and the award-winning After Roe (2015). She often lends her expertise to mass media outlets across the world.
Mary Ziegler, a law professor at UC Davis School of Law, is one of the leading historians of the US abortion debate and the author of 4 books, including Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment (Yale, 2022), Abortion and the Law in America (Cambridge, 2020), and the award-winning After Roe: The Lost History of the Abortion Debate. She speaks frequently with the media, including the Atlantic, Fox News, MSNBC, the New Republic, New York Times, NPR, and the Washington Post, She lives with her family in California. You can follow her @maryrziegler.
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Table of Contents
Acknowledgments page
Timeline
List of Abbreviations
Introduction
1 Roe v. Wade and the Rise of Rights Arguments
2 The Hyde Amendment and Its Aftermath
3 Launching a Quest to Reverse Roe
4 Planned Parenthood v. Casey, the Family, and Equal Citizenship
5 Contesting the Relationship between Abortion and Health Care
6 Partial-Birth Abortion and Who Decides the Costs and Benefits
7 Polarization, Religious Liberty, and the War on Women
Conclusion
Notes
Index
Overview
Ziegler documents a shift to debates on policy costs and benefits that deepened polarization on abortion in this first legal history of the period.
With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.
Read an Excerpt/PDF Preview
Introduction
The Introduction argues that the terms of the American abortion debate have changed in ways we have mostly missed. When forced to give up on a constitutional amendment banning abortion, pro-lifers sought to control the Supreme Court and reverse Roe. As part of this mission, abortion foes promoted restrictions that would hollow out abortion rights and set up test cases for the Court. But these laws did not obviously advance a right to life since they did not criminalize any abortions. To defend them, abortion foes instead detailed the benefits of specific restrictions – and the costs of abortion itself. Over time, abortion-rights supporters had to identify concrete benefits of abortion, explaining whether legal abortion was good for women and the communities in which they lived. Although some resisted a focus on the costs and benefits of abortion, this shift in the terms of the debated sparked discussions about poverty and abortion, the role of government, the changing American family, the influence of abortion on women’s health, and the nature of scientific uncertainty. And surprisingly, as discussion turned to policy costs and benefits, polarization deepened. Both sides disagreed not only about foundational rights but also about the basic facts.
1 Roe v. Wade and the Rise of Rights Arguments
Chapter 1 provides the background for the story told in the book. In the nineteenth century, when mobilizing to ban abortion, physicians insisted that outlawing the procedure would strengthen the traditional family and improve the nation’s genetic stock by forcing Anglo-Saxon women to have more children. While abortion was illegal for decades, physicians still performed the procedure, justifying it as necessary to save women’s life. But in the 1940s and 1950s, obstetric care improved, making it harder to invoke this justification. Doctors organized to seek the reform of abortion laws, initially arguing that reform would improve women’s health. In the 1960s, however, reformers also argued that legal abortion would prevent the birth of severely disabled children and preserve scarce environmental resources. In the 1960s, as groups formed to defend criminal abortion laws, pro-lifers emphasized arguments about a right to life as a way to expand their movement beyond its existing Catholic membership. As more feminists joined the abortion-rights movement in the late 1960s and early 1970s, grassroots activists demanded the outright repeal of all abortion restrictions, and reformers emphasized rights-based claims of their own. Roe v. Wade made rights-based claims even more important to the discussion.
2 The Hyde Amendment and Its Aftermath
In studying the success of abortion-funding bans, Chapter 2 evaluates the rise of a strategy based on claims about the costs of abortion. In the mid-1970s, the antiabortion movement included self-described liberals and conservatives, absolutists and pragmatists, professionals and homemakers. All of these activists focused on a constitutional amendment that would have criminalized abortion, and groups like NRLC and AUL looked for laws that could reduce the abortion rate in the short term. In justifying laws like abortion-funding restrictions, pro-lifers highlighted what they described as the societal costs of paying for abortion. While groups like NARAL and Planned Parenthood reluctantly discussed the impact of abortion-funding bans on poor women, lawyers in the ACLU invited courts to look at the real-world effects of funding prohibitions on taxpayers and low-income women. Resulting in decisions like Maher v. Roe (1977) and Harris v. McRae (1980), this dialogue reflected broader changes in public attitudes about poverty and the social-safety net.
3 Launching a Quest to Reverse Roe
Exploring the period between 1980 and 1986, Chapter 3 studies how groups like NRLC and AUL refocused on overturning Roe. After 1978, when Akron, Ohio, passed a model law, NRLC and AUL lawyers contended that because abortion sometimes harmed women, incremental restrictions should be unconstitutional only if they unduly burdened women rather than helped them. The Supreme Court rejected abortion foes’ arguments in City of Akron v. Akron Center for Reproductive Health (1983), but writing in dissent, Justice Sandra Day O’Connor adopted a version of the undue burden standard that pro-lifers championed. O’Connor’s dissent solidified mainstream pro-life groups’ commitment to a new strategy. Rather than prioritizing a constitutional amendment, abortion foes would gradually chip away at Roe, narrowing its protections and setting the stage for its overruling. By aligning with the GOP, pro-lifers would shape who sat on the Supreme Court. And in defending access restrictions, abortion foes would highlight their benefits – and what they saw as the costs of abortion.
4 Planned Parenthood v. Casey, the Family, and Equal Citizenship
Centered on the period between 1987 and 1992, Chapter 4 evaluates how the relationship between abortion and sex equality became central to both the fate of Roe and debate about the American family. To reassure Republican leaders that pro-life positions had a political payoff, abortion foes emphasized family involvement laws that seemed to enjoy popular support, including laws requiring women to notify their husbands or get their consent. In defending these laws, antiabortion activists insisted that abortion had serious costs for the family. Many on both sides resisted a focus on the costs and benefits of abortion. A new and predominantly evangelical clinic-blockade movement rejected consequence-based arguments in favor of religious ones. Believing that the Court would reverse Roe, larger abortion-rights groups like NARAL played up rights-based claims. In court, however, abortion-rights attorneys contended that if forced to carry their pregnancies to term, young women would lose out on emerging financial, political, or educational opportunities. Soon, these arguments played a key role in the discussion of Roe’s fate. Invoking constitutional equality, lawyers looked at the benefits of keeping abortion legal. These arguments shaped the Court’s decision in Planned Parenthood v. Casey.
5 Contesting the Relationship between Abortion and Health Care
Chronicling the mid-1990s, Chapter 5 traces a debate about the relationship between abortion and health care that evolved in the aftermath of Casey. In explaining how incremental restrictions affected women’s equal citizenship, abortion-rights groups emphasized that regulations denied women crucial health benefits. In the political arena, abortion-rights advocates worked to guarantee coverage of the procedure in national health care reform, to repeal bans on Medicaid funding for abortion, to introduce legislation protecting access to clinic entrances, and to ensure access to medical abortion. In court, abortion-rights attorneys also described clinic blockaders – and all abortion foes – as sexists opposed to health care for women. Women of color offered a new framing of the relationship between health care and abortion, calling not for reproductive rights but for reproductive justice. Furthermore, Casey and the health-based offensive led by the abortion-rights movement caused some abortion opponents to lose faith in a strategy centered on the costs of abortion. To regain prominence, attorneys in groups like AUL and NRLC developed a new way of undermining Roe: If the Court saved abortion rights because women relied on it, the pro-life movement would demonstrate that the procedure damaged their health.
6 Partial-Birth Abortion and Who Decides the Costs and Benefits
Examining the years from 1995 to 2007, Chapter 6 studies how those on opposing sides fought about ways to measure the costs and benefits of abortion when experts disagreed. In this period, larger pro-life groups sponsored a ban on partial-birth abortion. At the start, NRLC mostly urged voters to rely on their own moral compass to see that the procedure should be illegal. Drawing on support from medical experts, abortion-rights supporters responded that dilation and extraction sometimes best protected women’s health. Abortion foes responded that both the mainstream media and organizations like the American College of Obstetricians and Gynecologists were biased. Since the debate turned partly on the costs of abortion (and abortion restrictions) for women, those on opposing sides increasingly fought about what should happen when experts disagreed. Should voters, experts, or individual patients have the final say when a scientific matter was in dispute? How should courts even define scientific uncertainty? Discussion of these questions reflected a larger national conversation about the line between politics and science.
7 Polarization, Religious Liberty, and the War on Women
Bringing the story up to the present, Chapter 7 considers how the breach between the two sides widened during battles about religious liberty and health care reform. In 2010, a backlash to President Barack Obama’s health care reform, the Affordable Care Act (ACA), helped to give Republican lawmakers control of most state legislatures. These members of the so-called Tea Party passed an unprecedented number of abortion restrictions. Pro-lifers also joined an attack on the contraceptive mandate of the ACA, arguing that the government had denigrated religious liberty. While pro-lifers accused Planned Parenthood of illegal and immoral actions, abortion-rights supporters described their opponents as misogynist opponents of health care and birth control. In 2016, in Whole Woman’s Health v. Hellerstedt, the Court made claims about the costs and benefits of abortion yet more central to constitutional doctrine. With the retirement of Justice Anthony Kennedy two years later, many expected the Court to overturn Roe. But rather than seeking to appeal to ambivalent voters, antiabortion absolutists pushed strict abortion bans. For their part, abortion-rights supporters tried to expand abortion rights in the states. Decades of debate about the policy costs and benefits of abortion had pushed the two sides even further apart.
Conclusion
As the Conclusion argues, the book shows that the abortion conflict will not become any less bitter if the Supreme Court overturns Roe v. Wade. The sources of polarization go well beyond the intervention of the Court, and a focus on policy costs and benefits – something many expected to deescalate the conflict – has only driven the two sides further apart. The Conclusion also establishes that the abortion conflict has been far more fluid than many believed, reflecting many of the major shifts in the political, economic, and cultural landscape of the United States.
Review/Endorsements/Praise/Award
‘Mary Ziegler’s thorough and impeccable research has established her as the premier historian of abortion in the post-Roe era. By giving equal attention to activists on both sides of the struggle, her scholarship offers an essential grounding for anyone who seeks to debate the issue as a newly-constituted Supreme Court now considers whether to alter the established precedents that have governed American law for the last quarter-century.’ – David J. Garrow, Pulitzer Prize-winning author of Liberty and Sexuality
‘Mary Ziegler’s Abortion and the Law in America makes a dramatic call for less reliance on the Supreme Court to resolve the abortion debate. Instead, politicians, grassroots, activists, attorneys, and ordinary voters must assume responsibility for the intense political and cultural polarization that has occurred over abortion. She sets the context for any resolution of this issue in a magnificent legal history of abortion that should be required reading for everyone – not just legal scholars – concerned about our future as a unified democracy.’ – Donald T. Critchlow, Katzin Family Professor, Arizona State University, and author of Intended Consequences: Birth Control, Abortion, and the Federal Government
‘Mary Ziegler’s Abortion and the Law in America offers a fascinating analysis of the often shattering divisions in our nation over a woman’s right to choose. Ziegler shows that national debates over this issue have focused not only on what the Constitution means, but also on often bitter policy disagreements over the rights of the poor, the right to health care, the rights of teenagers, the right to religious liberty, and the rights of women. In a world in which Roe may soon be overturned, this book is essential reading for anyone who wants to understand where we are headed.’ – Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law, The University of Chicago, and author of Sex and the Constitution
‘This is an exhaustive – and fascinating – account of how we got to where we are today. A ‘must have’ for anyone wanting to know how and why abortion has polarized America.’ – Kristin Luker, University of California, Berkeley
‘Mary Ziegler understands the ‘on the ground’ history of the politics of Roe, and its connection to the evolving abortion rights jurisprudence of the Supreme Court, better than anyone else. Abortion and the Law in America shows that this story is far more complex than we imagine it to be, and that the abortion fight is likely to continue regardless of whether the Court overturns its landmark decision. As Americans have debated abortion, they have also debated and disagreed on a host of other issues concerning women’s health, poverty policy, family structure, and even the standards for evaluating evidence and science. The abortion debate, she shows, has both mirrored and furthered the collapse of consensus in the larger culture.’ – Kenneth W. Mack, Lawrence D. Biele Professor of Law and Affiliate Professor of History, Harvard University
‘Few scholars know the history and law of abortion as well as Mary Ziegler. In this compelling book, she demonstrates how much we miss by continuing to view abortion through the prism of that ‘clash of absolutes’ pitting the constitutional right to choose against the constitutional right to life. In fact, she demonstrates, almost since Roe v. Wade was handed down, foes and advocates have fought about the costs and benefits of abortion, as well as rights to it. Abortion and the Law in America is indispensable reading for anyone interested in the vanishing line between science and spin, social movements and their legal strategies, and the role of the Supreme Court in the past – and future – of one of our most intractable conflicts.’ – Laura Kalman, Distinguished Professor of History, University of California, Santa Barbara
‘Ziegler is one of the foremost historians of abortion law in America, and this book will prove indispensable for anyone interested in the subject.’ – I. Glenn Cohen , James A. Attwood and Leslie Williams Professor of Law, Harvard University
‘For decades, the views of US Supreme Court Justices have dominated scholarly and popular conversations about abortion in the United States. In Abortion and the Law in America, Mary Ziegler offers a fresh take on the enduring debate; she centers the perspectives of activist organizations and grassroots tacticians in struggles over reproductive rights. Ziegler’s analysis of on-the-ground developments shows us that the Court is but one of many drivers of conflict and change in the unpredictable battle over Roe v. Wade.’ – Tomiko Brown-Nagin, author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, Winner of the Bancroft Prize
‘Mary Ziegler’s Abortion and the Law in America skillfully captures the trench warfare not only between pro-choice and pro-life forces over the future of Roe v. Wade, but within the contending legal and political camps on both sides of the fight. By mapping the shifting behind-the-scenes strategies adopted by cause lawyers in conjunction with allied legislators and advocacy groups to either sustain or subvert Roe, as they played out across a succession of related Supreme Court rulings, Ziegler provides one of the best guides we have to our uncertain constitutional future.’ – Kenneth Kersch, Professor of Political Science, Boston College
‘Mary Ziegler’s latest book offers an impressively detailed, even-handed history of the policy debates and legal developments that continue to shape abortion policy. This is the essential one-volume guide to the history behind current headlines. No matter what happens with Roe, Ziegler’s perceptive analysis, based on extensive primary source evidence, explains why the nation’s polarizing debate over abortion policy will likely remain far more complicated and intractable than partisans on either side imagine.’ – Daniel K. Williams, author of Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade
‘Mary Ziegler’s fine book shows that opposing sides in fights over abortion disagree about much more than constitutional principles. Even when the battle focuses on costs and benefits of abortion rather than constitutional rights, deep mistrust between activists on opposing side – reflected in disputes over basic facts relating to the science and regulation of abortion, in disagreements about which sources of information and expertise are reliable, and even in harsh assessments of opponents’ character and integrity – thwarts any hope of compromise.’ – Ann Southworth, University of California, Irvine
‘This is essential reading for anyone interested in abortion politics and law. We think abortion is a battle of principle, but as Ziegler shows again and again, both sides of the debate are also waging a war of facts and empirical evidence. This book will be eye-opening for everyone, even the most knowledgeable people in the field.’ – David S. Cohen, author of Obstacle Course and Living in the Crosshairs
‘No one knows more than Mary Ziegler about the history of the abortion controversy in the United States, and no one has thought more deeply about the subject. In this book, she shows how that controversy has evolved and, in the process, has revealed basic differences between the two sides about everything from the nature of the family to what counts as scientific knowledge. Ziegler’s account is nuanced and complex, and it highlights just how much work remains for defenders of women’s reproductive rights.’ – David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School
‘… Mary Ziegler meticulously charts the twists and turns of abortion law over the past 47 years, paying special attention to the organized groups on each side.’ – Katha Pollitt, The Washington Post
‘Ziegler’s rich and readable analysis … will be welcome by students and scholars alike.’ – Helena Silverstein, Law and Politics Book Review