Anna Maria Diamanti, The Road to Roe : Consciousness Raising and the Abortion Rights Movement (1999)

Starting in the mid-1800s, states passed statutes criminalizing abortion, though many of these laws included exceptions if pregnancy or childbirth threatened the mother's life. Nevertheless in the early 1900s over 30% of women of all classes, races and religions had at least one abortion in their lifetimes. In the 1950s, stricter scrutiny of doctors due to the increasing bureaucratization of hospitals, combined with postwar pressure to bear children, led to more prosecutions of doctors for performing abortions. Women seeking help were forced to find a practitioner willing to risk prosecution. Abortions, particularly those performed on poor women, were often undertaken in dangerous conditions. As the number of deaths due to illegal abortion rose, agitation to legalize abortion increased.

Harriet Pilpel, an attorney who served as counsel to the American Civil Liberties Union and Planned Parenthood, worked to get abortion rights on the organization's agenda by 1967. She drafted a series of constitutional arguments contending that restrictive abortion laws deprived women of life and liberty without due process of law by forcing them into dangerous treatment environments, invaded the right to privacy established in Griswold v. Connecticut , deprived the poor of equal protection, infringed the freedom of speech of doctors, and supported an establishment of religion. Pilpel also emphasized class and race-based inequities. Poor and minority women faced the most danger from illegal abortions, and the highest likelihood of coerced abortions or sterilization.

Initially, the most heavily targeted abortion crusaders were doctors. They worked with lawyers to challenge antiabortion laws. Courts began to find the laws vague and recognized a privacy right protecting women's control over the decision to have children. In 1971, the United States Supreme Court upheld laws allowing abortion only if necessary to save the mother's life as not unconstitutionally vague in United States v. Vuitch (1971). After that decision attorneys Nancy Sterns and Catherine Roraback worked on Abele v. Markle , a case in which all plaintiffs, organizers and counsel were women. They reframed the issues, eschewing vagueness claims in favor of arguments involving equal rights and privacy. The strategy worked in the federal district court, setting the tone for the litigation strategy that would eventually lead to Roe v. Wade .

The takeover of the abortion crusade by organizing feminists made abortion rights a women's issue. Feminists argued that women had the rights to privacy and liberty to make their own decisions regarding their health. To these women, forced motherhood was a way of subordinating them. Antiabortion laws, they argued, were moral and religious in nature and imposed one view of when life began on women who held varying religious views. Women's networks sprang up to provide information about safe and affordable abortions for women, putting the issue into women's hands.

The growing public debate about abortion eventually took root in Texas. After a friend asked her a legal question regarding abortion, Sarah Weddington began researching Texas law on the subject. She began working on abortion on a pro bono basis and took on the case Jane Roe, a woman who wanted an abortion. That case, Roe v. Wade , went to the Supreme Court after the district court granted Roe relief. The Court was sympathetic to women facing unwanted pregnancies, but also wished to take into account the interests of physicians and government. While the Court struck down the Texas statutes as an invasion of privacy and a deprivation of liberty, it also adopted an approximate version of the trimester system originally established by the medical profession. Although the Court did not see abortion as an equal protection issue, it did recognize that reproductive freedom was essential to women's right to self-determination. The work of the ACLU and various feminist groups had a significant impact on the outcome of the case.

 

 

Revised July 23, 2003 (MD)