The abortion ban in Alabama did not emerge out of thin air. It is part of a larger American tradition of predominantly-male institutions and individuals seeking control over female bodies and reproduction.*
The recent passage of an Alabama law severely restricting abortions has caused tidal waves of fear and anger throughout the U.S. and on social media. Women have taken to the streets, decked in garb from The Handmaid’s Tale, donned with coat hangers and protest signs, their throats raw from screaming for reproductive justice. The Alabama Human Life Protection Act criminalizes all abortions except “in cases where abortion is necessary in order prevent a serious health risk to the unborn child’s mother,” and does not permit exceptions in cases of rape or incest. Its passage feels like a radical departure from the status quo, though it is very much the result of a decades long coordinated effort to erode the right to choose.
The Alabama law directly provokes the Supreme Court to revisit Roe v. Wade (1973). Eric Johnson, the president of the Alabama Pro-Life Coalition and the author of the bill, told NPR “…the only way we can [stop abortion of unborn children] is to go back and revisit the Roe decision. So this law is, in effect, a vehicle to do that. But the real purpose of this law is to save the lives of unborn children.” Johnson also maintained that his decision not to hold women who seek abortions criminally liable under the bill, instead solely penalizing doctors who provide illegal abortions, was not a political one but emerged from his genuine desire to help women.
Aside from its legal ramifications, the bill, set to go into effect in November, will have real and tangible consequences for women in Alabama who, while waiting for the slow process of litigation to unfold, will be forced to go elsewhere to access abortions or turn to unsafe and illegal methods of receiving the procedure should financial barriers to leaving the state exist – disproportionately, the law will create barriers to women of color who are low-income receiving abortions.
Marallyn Mosely was a thirteen-year-old girl living in Alabama when she was raped, 22 years before Roe. She was taken, by her mother, to receive an illegal abortion. She recounts: “[y]ou go for help and instead of receiving it, you are violated again. And you didn’t know who was going to be the person performing the abortion…We’re going to return to the back alleys. We’re going to return to where women will do abortions to themselves. We will return to the coat hangers and perforated uteruses. We will return to where women will bleed to death…”
Alabama feels ready to challenge Roe on the national stage
After Roe, Alabama never actually repealed its statute criminalizing abortion instead choosing to leave it on the books but not enforce it – a symbol of its vested interest in controlling reproduction. Now, with the recent confirmation of conservative (though, “precedent-loving”) Supreme Court Justice Brett Kavanaugh, Alabama feels ready to challenge Roe on the national stage.
Alabama was not alone in feeling empowered by recent Trump appointees to the Court. Reporting by the New York Times reveals the increasingly widespread nature of “heartbeat bills,” which criminalize abortions performed after six to eight weeks of pregnancy, when the heartbeat of the fetus becomes detectable. These laws have passed in Georgia, Kentucky, Missouri, Mississippi, and Ohio. While these laws might not appear to be as restrictive as the Alabama bill, they also effectively ban abortions because many women do not realize they are pregnant until after the fetus’ heartbeat is detectable.
Georgia has passed perhaps the most alarming of these laws. The language of the heartbeat bill is dangerously fuzzy as to whether it would be doctors who would be penalized in the case of illegal abortions, or whether women, too, could be sent to jail. Staci Fox, of Planned Parenthood, told the Washington Post that it would not be legally permissible to try a woman under the Georgia law, but that “if a woman had a miscarriage, she could be pulled into an investigation looking at whether someone performed an illegal abortion on her.” In addition for the potential trauma caused by such intrusion, this is a clear effort by the state of Georgia to further its grip on women’s reproductive lives.
And, on May 30th, Democratic Governor John Bel Edward of Louisiana signed into law a restrictive “heartbeat” abortion ban. While the Republican party has, for a long time, been rooted firmly in pro-life, anti-choice rhetoric, Edward’s split with his party represents regional disconnect in the Democratic party. A significant number of the 73 Louisiana lawmakers who voted to pass the bill were also Democrats; adding insult to injury, those lawmakers also voted down an amendment that would have included a rape/incest exception clause to the law. Now, the Governor is touting the legislation as a bipartisan achievement.
Abortion may have become a partisan issue, but legislation aimed at thwarting female bodily autonomy has a remarkably bipartisan history.
A brief history of abortion
Let’s rewind. Socially conservative politicians have effectively used the inherently American myth that by overturning Roe, we will return to a pure and Christian era in which women were revered as bearers of life and left uncorrupted.
This is, of course, nothing more than a constructed fantasy.
Abortion before “quickening” – the time at which the fetus begins to move – was both socially and legally accepted under the British system of common law that was adopted during the American colonial era. But, it would be a mistake to think of this time of legality as the pinnacle of female liberation. While abortions were available for women, the procedure was still very much dominated by male institutions that desired to exert control over colonial-era wombs.
If anything, by increasingly throttling a woman’s right to choose, we are continuing the omnipresent American thread of male control over female bodies, not returning to a time of moral purity.
Sarah Grosvenor died in 1742 in Pomfret, Connecticut due to complications stemming from a botched abortion performed by John Hallowell. Records indicate that Sarah did not want to have the procedure performed on her, but was coerced into having the abortion by Amasa, the father of the baby, who wanted Sarah to have the procedure because the fetus was conceived out of wedlock. Sarah’s autonomy over her body, and the fetus inside of her, was compromised by the men in her life who believed it more socially convenient for the pregnancy to go away, despite the dangers of the surgical procedure as performed by an unlicensed physician. The doctor who botched the procedure, resulting in Sarah’s suffering and eventual death, was sentenced to a very light punishment – lighter than that which Sarah would have had to endure should her affair with Amasa have come out – which he escaped, easily. Amasa received no punishment for his coercion.
In the late nineteenth century, abortion discourse began to evolve. Increasingly, the Christian Church and its leadership morally condemned abortion, and by the 1880s, states were using their police powers to criminalize the procedure, framing their regulations as state interventions on behalf of public health. It is conceivable that there did exist a legitimate desire on the behalf of state legislatures to protect women from botched and unsafe abortions; as seen in Grosvenor’s case, women did become gravely ill as a result of the at-the-time unsafe procedure. Mostly, these laws were focused on criminalizing doctors’ actions rather than those taken by women who sought illegal abortions.
However, inextricable from the policing of abortion is, and always has been, the policing of women’s bodies. Many of the laws passed during this time period were concerned that botched abortions would lead to female sterility; clearly, sterility is not a blanket state public health issue – women might have been alright with becoming sterile if it meant they could get an abortion, but states prioritized their interest in categorizing women as breeders above autonomous individuals. And, once abortion became the incredibly safe procedure as we know it today, there was no hurry to repeal these laws from state codes.
It was a series of state appellate court cases leading up to Roe that began to seriously think about the constitutionality of states using their police powers in such a restrictive manner. In People v. Belous (1969), decided by the California state appellate court, Dr. Belous was arrested after performing an illegal abortion after his patient threatened to go to Tijuana if he refused her case. The California law in question only allowed abortions to be administered if the procedure was “necessary to preserve her life.” The state court struck down the penal code on the grounds that this clause was too ambiguous for doctors to interpret in emergency situations and therefore violated doctors’ fourteenth amendment due process rights.
Defence against a legislative threat to Roe
A woman recounts her experience traveling to Mexico to get an illegal abortion in court testimony, defending against a legislative threat to Roe: “I remember Tijuana…I think the thing I will always remember most vividly was walking up three flights of darkened stairs and down that pitchy corridor and knocking at the door at the end of it, not knowing what lie behind it, not knowing whether I would ever walk back down those stairs again. More than the incredible filth of he place, and my fear on seeing it that I would surely become infected; more than the fact that the man was an alcoholic…more than the indescribable pain…more than the degradation of being asked to perform a deviant sex at after he had aborted me…more than the hemorrhaging and the peritonitis and the hospitalization… that dank, dark hallway and the door at the end of it stay with me and chills my blood still.”
In her recent New York Times op-ed, Dr. Jen Gunter reiterated the Belous court’s decision, fifty-years after the ruling. She wrote, in opposition to the Alabama bill: “I am an obstetrician and gynecologist trained to do abortions. I do not know how to translate these laws into clinical practice because often the language is preposterously vague…” and she continues, “If abortion restrictions come to pass, doctors may have to start calling politicians at home to find out how a law applied to their patient or else deal with the various ways these situations can go wrong.” When faced with the possibility of imminent death, are we really open to putting women’s lives into the hands of medically-ignorant congresspersons? That’s exactly what the Alabama law and the heartbeat bills do, just like their twentieth-century predecessors.
Alabama as continuation, not disruption
It would be a mistake to look at the Alabama law as an unexpected glitch in a matrix ruled by Roe. Since the landmark decision, conservative politicians have exploited every avenue possible to subtly and nefariously chip away at the right to abortion.
Take Maher v. Roe, decided a mere four years after Roe v. Wade, which upheld Connecticut regulations that only allowed Medicaid to fund abortions occurring in the first trimester that were deemed “medically necessary,” Justice Powell determined that Roe was never meant to imply that women had a positive right to access abortion procedures, but rather that no governmental body can actively stop a woman from having an abortion.
Maher paved the path for Harris v. McRae, the 1980 Supreme Court case that challenged the federal Hyde Amendment, which prohibits federal Medicaid funding from being used to cover “medically necessary” abortions. Despite its inherently discriminatory economic barrier, the Court upheld the Amendment. This decision was not just horrific in its symbolism, it led to real and preventable deaths and the amendment remains unchallenged today. The Hyde Amendment was an intentional effort on behalf of federal lawmakers not to save money or defund Medicaid, but rather to chip away at Roe through the façade of healthcare regulation.
1977: Rosie Jimenez sought an abortion; she was 27 years old, a college student, and she had a four-year-old daughter. The passage of the Hyde Amendment meant that she could not use her Medicaid coverage to procure an abortion, and without the funds to seek a legal procedure, she died as a result of a botched illegal abortion. Without the Hyde Amendment, Rosie would have been able to safely access an abortion, allowing her to raise her child, graduate from college, and live her life fully.
While the media is currently fiercely debating the likelihood of the Supreme Court overturning Roe v. Wade, we should keep in mind that it would not require an entire reversal of the decision to severely limit a woman’s right to choose in many states. First trimester abortions can be regulated by states so long as the regulations do not create an “undue burden” for women to access an abortion. “Undue burden” is a vague clause that can easily be reworked to find legally permissible essentially any regulation limiting a woman’s right to choose.
And, if there is one governmental body that is good at making a decision appear as if it is a compromise, when in reality it is a devaluation of basic rights, it is the Court.
Looking toward the future
Trump’s nominees to the Court offer little hope in the way of being staunch protectors of Roe. In June Medical Services, LLC v. Gee (2019) Kavanaugh’s only abortion ruling while on the Court, he dissented, along with Justice Gorsuch, from the majority in a case that struck down a Louisiana law requiring all doctors administering abortions to also have admitting privileges at a nearby hospital. Despite the fact that the doctors in question had repeatedly been denied these privileges, Kavanaugh cleverly and maliciously crafted a dissent that ignored the doctors’ prior attempts to gain admitting privileges, ignored the potential harm done to women should all the doctors in question be denied such privileges, and – overall – ignored the profound lack of necessity of doctors obtaining such privileges in the first place.
Kavanaugh similarly exhibited his ability to rule with such a veneer in Garza v. Hargen (2017), for which he was on the Court of Appeals in D.C. The case concerned a 17-year-old girl, detained at the border, who was in her first trimester of pregnancy and wanted to get an abortion, which she was denied until she could be found a suitable host to be released to. Once again, Kavanaugh dissented from the majority, which ruled that she had the immediate right to an abortion, as if the interest of the girl were his top priority. He ignored the on-the-ground situation: that for many weeks immigration officials had been searching for a host for the girl so she could get the abortion, and for many weeks those officials had failed. Above all, he erased the girl’s own desire to have an abortion as soon as possible.
Garza, on behalf of her teenage client: “The pain that this has caused Jane is something I can’t even describe – knowing that her life’s path, whether she would be forced to carry a pregnancy to term. Was completely in the hands of people she would never know mader feel desperate, hopeless, and alone.”
Chief Justice Roberts, a social conservative who has surprised America with his vote in the past, is viewed as Roe’s last protector. Roberts certainly does not like Roe, but he also has shown that he cares about the Court’s legacy with respect to abortion. There is no telling if Roberts will instead choose to continue the current path of incrementally eroding Roe, or perhaps even go so far as to take the radical move to overturn the decision as a stamp of his own impact on the Court. If he does so, it will not be a radical departure from the norm; rather, his decision will live on the American continuum of repeated and sustained attacks on a woman’s right to decide for herself.
What is certain is that pre-Roe, abortions were not uncommon, and if we are unfortunate enough to endure a post-Roe era, abortions will continue to be sought after and illegally administered behind closed doors, in unregulated spaces by unlicensed individuals. Illegality will not stop women from seeking control over their wombs, but it will mean that women will become ill and will die unnecessarily.
We must listen to the women who speak about their experiences navigating a pre-Roe world. We must listen to the women whose abortions are delayed or denied because of nefarious regulations obscured by bureaucracy. We must listen to these women, and we must make our own voices heard that Roe is not superfluous nor expendable; it demands our full protection.
*The author acknowledges that not all who become pregnant identify as women and apologizes for adhering to binary and essentialist notions of gender as a means of talking about abortion as it is discussed in the political realm.