Will the US end up banning abortion altogether?
‘Will America ban abortion?’ is one of the many questions the BBC podcast The Inquiry recently looked at, and because I know you ought to give credit where credit’s due, I have to admit that it also led me to stop and think about the current situation in the US—more specifically in Texas.
On Wednesday 1 September 2021, after the Supreme Court failed to intervene in halting the SB 8 law—also known as the Texas Heartbeat Act—the ban took effect, meaning that any anti-abortion individual could report or sue a person or clinic for aiding a patient in getting an abortion, even if they don’t live in the state or know the patient personally. “You could be sued by a so-called abortion bounty hunter simply for driving a friend to a clinic. There is no making it up, although similar to something you’d watch in a Black Mirror episode, this law is now an actual reality for the citizens of Texas,” Monica Athnasious wrote for Screen Shot at the time.
Shortly after—in fact, less than a day after it took effect and became the most restrictive abortion measure in the nation—pro-choice activists were offered false hope as the Supreme Court decided to take a second look at the controversial ban and potentially block it, only to refuse to do so last minute. The vote was five to four, with the majority opinion consisting of a single long paragraph that said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
In Texas, as well as around the world, it felt like women’s rights activists were back to square one. “Members of the public have been incentivised to find evidence of an abortion,” explains The Inquiry presenter and producer Charmaine Cozier, which brings the terrifying yet logical question: will the US end up banning abortion altogether?
Abortion history in the US
While it may sound surprising to most, there is a long history of abortion in the US, as Leslie J. Reagan, author of When Abortion Was a Crime and Dangerous Pregnancies told The Inquiry. In the country, abortion was originally legal before quickening, the point at which a pregnant person feels the foetus move—generally at around four or five months. Having one after that, however, broke common law and moral codes.
Abortion was widely practised, primarily done using herbs with the assistance of midwives and other female healers. “Some of the earliest anti-abortion laws were poison control measures, passed in the mid-19th century in response to the proliferation of chemical abortifacents that became popular at the time” Our Bodies Ourselves (OBOS) stated.
The first calls to make abortion illegal came from doctors who were driven by self-interest. Sure, the move to ban abortions was part of a backlash against the growing women’s rights movement, which advocated for “voluntary motherhood.” But it was also a way for men in the newly-established medical profession to wrest control over the highly profitable business of childbirth from midwives, whom they condemned for performing abortions and resented for not having the same level of education that they had.
And their move worked—by the late 1880s, most states had laws banning abortion except to save the life or health of a pregnant person, but many had a clause which protected doctors from prosecution. This means that only medical practitioners were allowed to perform abortions for reasons that they considered to be ‘justifiable’. Just like that, the rest of their competitors were out of the picture.
The attacks on abortion access were also rooted in racism and white supremacy. According to OBOS, white doctors often targeted black midwives for particular condemnation. “People seeking to criminalise abortion were also motivated by increased immigration, specifically of Catholic immigrants, and the declining birthrate among US-born white Protestant women in the late 1800s. The US government and the eugenics movement were concerned about ‘race suicide’ and wanted white Protestant women to have more children,” the publication added.
In the years following this move, people who continued to have abortions were subjected to fear and shame, which took a heavy toll on their lives, health, and families. While there were providers who practiced safely, finding one often depended upon a woman’s economic situation, her race, and where she lived. Although those with money could leave the country or find a physician who would perform the procedure for a high fee, poor women and women of colour suffered disproportionately. They were either at the mercy of incompetent practitioners with questionable motives, unable to find anyone who would perform the procedure, or forced to resort to dangerous self-abortions.
By the 1950s, medical power in the US was incredibly respected and trusted—and this time around, they wanted reforms. After witnessing the damage illegal abortions could do to desperate women in terms of death, danger, illness and inequality, medical practitioner changed their mind.
In the late 1960s, the Clergy Consultation Service on Abortion (CCS)—a network of concerned pastors and rabbis—set up referral services to help women find safer illegal abortions. Early second-wave feminist groups formed their own independent referral groups. In Chicago, a group of trained laywomen called the Abortion Counseling Service of the Chicago Women’s Liberation Union went even further by creating an underground feminist abortion service in 1969. The group, code-named ‘Jane’, provided safe, inexpensive and supportive illegal abortions. “Over a four-year period, the group provided more than 11,000 first and second-trimester abortions with a safety record comparable to that of today’s legal medical facilities,” OBOS noted.
In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s identity) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas, where she resided—challenging a Texas law which made abortion illegal except by a doctor’s orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments. A three-judge panel of the US District Court for the Northern District of Texas heard the case and ruled in her favour. Texas then appealed this ruling directly to the US Supreme Court.
Three years later, the Supreme Court issued a decision ruling that the laws were unconstitutional, but it also ruled that the right to abortion is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life.
In order to resolve this balancing test, the Court tied state regulation of abortion to the three trimesters of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; and during the third trimester, abortions could be prohibited entirely as long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother. The Court classified a woman’s right to choose as “fundamental,” which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard—the highest level of judicial review in the US.
This decision was enormous because it meant that abortion had to be decriminalised everywhere and doctors could start providing them legally and therefore more safely. “Public hospitals began providing them, clinics were set up, maternal mortality in the US dropped 40 to 50 per cent,” continued Reagan.
The pro-life movement’s origins
In the midst of states’ efforts at abortion reform, the modern anti-abortion political movement was born. Small groups of Catholic doctors, nurses, lawyers, and housewives joined together to oppose liberalisation. In 1967, the National Council of Catholic Bishops aided their campaigns with support, money and the formation of the National Right to Life Committee. Early Catholic activists were often joined by a handful of non-Catholics, usually Protestants, Mormons or Orthodox Christians.
Supporters of abortion reform argued that ‘right-to-life’ forces were attempting to push Catholic values on a diverse American populace, and consequently many anti-abortion groups worked to present themselves as ecumenical or non-denominational. Most of these early groups failed to stop changes in their state’s abortion law but they did have some successes in the early 1970s, suggesting that not every state was ready for abortion reform.
The Roe vs. Wade decision changed everything and nothing. In the 1970s, the anti-abortion movement remained heavily Catholic, and they continued to pitch their issue as a rights problem rather than a religious one. But in other essential ways, the movement changed. Before Roe, the anti-abortion movement was very small, geographically disperse and focused on individual state legislatures.
After 1973, activists and state legislators alike worried that Roe prescribed a one-size-fits-all abortion law that could only be addressed at the national level. That’s why, in the 1970s, activists promoted the Hyde Amendment (which successfully prohibited federal funding of abortions through Medicaid) and pushed, rather unsuccessfully, a constitutional amendment banning abortion. After 1973, the direction of pro-life activism changed, even though its demographics and core political arguments remained the same.
Around that same time appeared a movement which greatly impacted today’s pro-life movement: the Christian right. The movement, which still exists to this day, is made up of Christian political factions that are characterised by their strong support of socially conservative policies. Not too dissimilar from the beliefs Republicans are now associated with, Christian conservatives sought to influence politics and public policy with their own interpretation of the teachings of Christianity. And over the past 40 years or so, it successfully allied itself with the Republican party, changing its image forever.
“In the US, the Christian right is an informal coalition formed around a core of largely white conservative evangelical Protestants and Roman Catholics,” reads the term’s Wikipedia page. The Christian right also draws additional support from politically conservative mainline Protestants and members of the Church of Jesus Christ of Latter-Day Saints.
The movement has its roots in American politics going back as far as the 1940s but has been especially influential since the 1970s. Its influence draws from grassroots activism as well as from focus on social issues and the ability to motivate the electorate around those issues. And one of its favourite issues to go after is the pro-choice movement, along with other socially conservative positions on matters such as embryonic stem cell research, homosexuality, euthanasia, contraception, sex education and pornography.
The idea that their country could legalise ‘murder’—as they saw it—was just unthinkable and something they felt the need to push back against. And they very much believed that it was about defending the cause of the unborns, which led some of these pro-life organisations to also advocate for better financial help for pregnant women in crisis pregnancies—things that would have been associated more with the political left than right.
Surprisingly, in the late 1960s and even early 1970s, most Republicans weren’t fans of the anti-abortion movement. But the Christian right had to find the party most likely to strike down Roe v. Wade. After Nixon and Watergate, the Republicans were in trouble—up until 1981, when Ronald Reagan was elected president.
Afterwards, pro-life supporters realised that the only way they could change their country’s laws surrounding abortion was by going through the US Supreme Court justices, which are nominated by the President. To this date, abortion has been a central issue in every Supreme Court nomination—just look at Amy Coney Barrett.
No other industrialised country in the western world has such a large contingent of politically active conservative white Evangelicals as the US.
First Texas, then the rest of the country
One of the biggest groups of women who oppose legalised abortion in the US is the southern white evangelical Christians. These women overwhelmingly voted for Donald Trump, with 80 per cent of these voters supporting him at the ballot box in 2016. In November 2018, during the US House exit polling, 75 per cent of southern white evangelical Christian women indicated they supported Trump whereas only 20 per cent said they voted for Democratic candidates. Meanwhile, a 2019 study found that the implementation of restrictive abortion laws in 2014 increased the number of second-trimester abortions by restricting women’s access to the correct services.
With Coney Barrett on their side, lawmakers in Texas were excited about what was to come—and they didn’t disappoint. The Texas Heartbeat Act is the strictest law in the nation and, arguably, in the past 50 years since Roe v. Wade. Now that there are six conservative justices on the Supreme Court, pro-choice activists are worried more bans are about to come, and rightly so.
The future for Roe v. Wade seems pretty bleak, and many think it’s just a matter of time before the Court reverses it. Even with Roe in existence, many states have already managed to find loopholes in the law—loopholes that the Supreme Court won’t act upon. In some states like Mississippi, there’s only one abortion clinic. In other states, you have to travel hundreds of miles to reach one, which is impractical for some low-income people.
Seven conservative states and the beliefs they stand for could mean that abortion would soon be banned from majority of the country. The overcoming of Roe v. Wade would allow individual US states to come up with their own regulations. Even if abortion is banned in half of America, that wouldn’t be the end of the anti-abortion movement—what abortion opponents want is for the Supreme Court to clearly state that an unborn child or foetus is a person, which would, in turn, make abortion unconstitutional nationwide.
While this scenario may not happen immediately, researchers interviewed on The Inquiry confirm it is on the agenda, with anti-abortion supporters suspecting the Supreme Court is conservative enough to go in that direction.
