Mary Ziegler Roe v. Wade Legacy of Abortion Law in America

Abortion law in America has been a tumultuous journey since Roe v. Wade. Mary Ziegler’s book “Abortion and the Law in America” dives deep into this contentious issue, tracing its evolution from 1973 to the present. It’s a riveting exploration of how legal battles, political shifts, and societal changes have shaped reproductive rights.

Dive into this comprehensive analysis to understand the complex landscape of abortion rights and its impact on American society.

Genres

Legal history, Women’s rights, Constitutional law, Political science, Social issues, Public policy, American history, Healthcare policy, Civil rights, Reproductive health, Society and Culture, Gender Studies, Feminism, Politics

Ziegler’s book provides a meticulous examination of abortion law in the United States, starting with the landmark Roe v. Wade decision in 1973. She traces the legal, political, and social developments that have shaped abortion rights over the past five decades. The author explores how different interest groups, including pro-choice and pro-life activists, have influenced legislation and court decisions. Ziegler delves into key Supreme Court cases, state-level restrictions, and the changing strategies of both sides of the debate. She also discusses the impact of medical advancements, public opinion shifts, and political realignments on abortion policy. The book culminates with an analysis of the current state of abortion rights and speculates on future trends.

Review

Ziegler’s work stands out for its balanced and thorough approach to a highly polarizing topic. Her legal expertise shines through in the detailed analysis of court cases and legislative actions. The book excels in contextualizing the abortion debate within broader social and political movements, offering readers a nuanced understanding of how we arrived at the current legal landscape.

One of the book’s strengths is its accessibility. Despite tackling complex legal concepts, Ziegler’s writing remains clear and engaging. She effectively uses case studies and personal stories to illustrate the real-world impact of abortion laws.

However, some readers might find the wealth of information overwhelming at times. The book’s comprehensive nature occasionally comes at the cost of narrative flow.

Ziegler’s work is particularly valuable for its historical perspective, helping readers understand the cyclical nature of the abortion debate. It’s an essential read for anyone seeking to grasp the complexities of this ongoing legal and social issue.

While the book doesn’t offer easy solutions, it provides a solid foundation for informed discussions about the future of abortion rights in America. It’s a timely and important contribution to the field, especially given the ongoing debates and legal challenges surrounding abortion access.

Introduction: Learn how the abortion debate in the US has changed over time–and how it has reflected social and cultural shifts.

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.

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.

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