The Road to Now: Looking Back on 50 Years of Abortion Policy in America
With the recent decision of Dobbs versus Jackson Women’s Health Organization, SCOTUS has overturned the landmark case of Roe V. Wade. This monumental decision came on June 24th, a mere two months ago. But there is a whole history of legislation and benchmark events that have led us up to this point, and they are worth re-examining as we try to digest what this means for this country, where we have been, and where we want to go from here.
Beginning with the well known case of Roe versus Wade, here are the most important legal cases and events related to abortion since 1973…
Roe v. Wade -1973
This landmark legislation was a lawsuit brought about by Norma McCorvey (known in court documents as “Jane Roe”) against Henry Wade, the district attorney of Dallas County, Texas. The verdict went in favor of Roe, with Associate Supreme Court Justice Blackmun, a conservative, writing the court opinion which concretized the fact that Americans’ decisions with their medical providers about healthcare decisions is a matter of privacy. Roe versus Wade, contrary to much of the public’s perception, was not a law, it was a legal precedent that would set standards of privacy in government. But even after Roe, access to abortion itself would be a whole other issue.
As Melissa Fowler, Chief Program Officer at the National Abortion Federation told me, “While Roe v. Wade gave everyone the right to an abortion, it did not guarantee equal access to abortion care.”
Doe v. Bolton case — 1973
The accompanying case to Roe v. Wade was Doe v. Bolton. This case was decided the same day as Roe in 1973 but it is much lesser known, though no less critical. At the time in Georgia, there were many restrictions on abortion and ‘Mary Doe’ as she was known in court reports (later named as Sandra Bensing Cano) agreed to sue the attorney general of Georgia which at the time was Arthur Bolton. After the case, Ms. Cano maintained that she was “tricked” into signing the papers for a lawsuit, and that to sue the state of Georgia over abortion restrictions was not her idea. She later became an anti-abortion activist. The case was landmark because of not only its proximity and relevance to Roe, but because it struck down a Georgia law restricting the reasons women could get abortions, which was very similar to the case of Roe v. Wade.
Hyde Amendment — 1977
This piece of legislation stated that no federal funds could be used to reimburse abortion services. This would go on to be expanded to include women working for the federal government, women in prisons, Medicare, and Indian Health Services. The caveat to this legislation is that states have the option to use state funding to cover the costs associated with an abortion . As of 2020, sixteen different states fund abortion services in the same manner as any other medical service.
Dr. Gabrielle Goodrick of Camelbak Family Planning Center in Arizona told me more;
“So it [the Hyde amendment] bans federal money from paying for any abortions: this effects military women, and women on Medicaid. Liberal states use state funds to pay for abortions for their residents. But, in red states, women on Medicaid have no medical insurance for abortions and must pay cash. So, the poorest women are affected the most.
It is a racist and sexist ban on essential reproductive healthcare that affects poor and minority women.”
During the mid to late ‘70’s there was a large movement among anti-abortion activists towards ensuring federal dollars did not fund abortion services, and the Hyde amendment was instrumental in this juncture.
The Hyde Amendment continues to be a divisive issue amidst the already larger divisive issue of abortion access.
Akron v. Akron case — 1983
In the case of the City of Akron, Ohio against the Akron Center for Reproductive Health this case was a critical one in which Justice Sandra Day O’Conner wrote her initial opinion citing that abortion restrictions were constitutional but that they were not to place an “undue burden” on women. This decision was a milestone at the time because it illuminated the concept of “undue burden” in regard to abortion access. The undue burden concept would eventually make its way into the case of Casey v. Planned parenthood.
Casey v. Planned Parenthood of Southeastern Pennsylvania — 1992
The state of Pennsylvania, governed at that time by Robert Casey, attempted to enact new abortion restrictions, including minors obtaining parental consent, married women notifying and obtaining permission from their husbands, and a mandate that clinics designate a compulsory 24 hour waiting period. The Court found in favor of Planned Parenthood of Southeastern Pennsylvania and struck down the governors abortion restrictions. This case, along with Roe and Doe, is throught to be seminal because it concretizied what is considered by many to be the legitimacy of abortion access restrictions.
Death of Antonin Scalia — 2016
With the death of Justice Antonin Scalia in 2016, President Trump nominated Justice Neil Gorsuch. Justice Gorsuch voted in favor of the recent legislation in Texas banning abortion after about six weeks. In 2020, he wanted to confirm the strict abortion regulations in Louisiana. In his senate conformation hearing he stated that he was merely concerned about “procedural issues” and not the “subject matter” of abortion itself.
Retirement of Justice Anthony Kennedy — 2018
Retiring in 2018, libertarian leaning Justice Anthony Kennedy, who was appointed by Ronald Reagan, was an active proponent of small government. This included his support for issues like gay rights, the death penalty, affirmative action and abortion. Brett Kavanaugh was confirmed for his seat. Many people felt that the nomination of Justice Kavanaugh was controversial because of sexual assault allegations by Dr. Christine Blasey Ford.
Seven states pass bans on 1st trimester abortion — 2019
Between January and May of 2019, seven states passed abortion bans during the first trimester of pregnancy. This included the state of Missouri passing an eight-week ban, Georgia, Kentucky, Mississippi, Louisiana and Ohio banned abortions past six weeks, and Alabama decided to ban all abortions except to save a pregnant persons life, and no exceptions for rape. The laws were considered notable because of the particular rigor and austerity of their position.
Death of Supreme Court Justice Ruth Bader Ginsburg — 2020
With the death of Justice Ruth Bader Ginsburg in 2020, President Trump nominated Amy Coney Barrett to her seat. Justice Barrett was controversial in her nomination because of her connection to deceased Justice Antonin Scalia and because of her alleged stance against abortion.
COVID-19 Abortion bans in 12 states — 2020
During the height of the COVID-19 pandemic, many “non-essential” medical procedures were banned. A battle ensued among legislators about whether or not abortion was essential healthcare. In the states of Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Ohio and Utah abortion bans were enacted, as they were deemed non-essential healthcare. These decisions were remarkable in that every state had to take a clear position on whether abortion was essential healthcare.
Case of June Medical Services v. Russo (formerly Gee) — 2020
Act 620, is a Louisiana law that was proposed to prevent physicians from practicing abortion in the state unless they retained “admitting privileges” at a hospital no more than 30 miles from their clinic. The restrictions were struck down by the Supreme Court. This law could have meant a huge change in the way Louisiana provided abortion access and it’s rejection is considered a win by pro-choice activists at the same time being looked at as a significant loss by anti-abortion activists.
Telemedicine abortion during COVID — 2020
Telehealth was the main thing getting many physicians and patients through the COVID-19 pandemic. The Mayo Clinic says telehealth is, “the use of digital information and communication technologies, such as computers and mobile devices, to access healthcare services remotely and manage your healthcare.” At the time, The American College of Obstetricians and Gynecologists released a statement that abortion is “time sensitive, essential healthcare.” Telemedicine abortion has not stopped, but in fact only continues to gain momentum and popularity.
Laura Echevarria, press secretary for the National Right to Life Committee told me, “The push we are seeing now is for abortion pills by mail or telemedicine…”
COVID-19 changed many things about the practice of medicine, and access to abortion, and it is clear that the manner in which abortion services are provided has changed and with this change comes more debates on whether abortion is “essential” healthcare.
Overturn of Roe…
On May 3rd, a draft opinion on Roe v. Wade was leaked to POLITICO. In the 98 page document written by Justice Samuel Alito, an argument using supporting legal cases is made for overturning Roe v. Wade. On June 24th, SCOTUS overturned Roe versus Wade. SCOTUS came to a decision that abortion is not guaranteed by the Constitution.
Abortion is now banned with no exceptions for rape or incest in the following states; Arizona, South Dakota, Missouri, Kentucky, Louisiana, Alabama, Arkansas, Mississippi and Texas. Abortion is restricted in Tennessee, Oklahoma, Ohio, Georgia, Wisconsin, North Dakota, Iowa, Indiana, Utah, North Carolina, Michigan, West Virginia, South Carolina, Montana, Nevada, Delaware, Kansas, Nebraska, Colorado, Wyoming, Virginia, Rhode Island, Pennsylvania, Virginia, New Hampshire. All other states have state or local laws that protect the right to abortion in their constitution
The result here is that more low income women, rural women, and Women of Color will be unable to get reproductive healthcare, or will have to travel to be able to do so. Wealthy and white women will be able to find ways around the laws and to obtain healthcare as they always have, unimpeded. Restrictions and banning on abortion only tangibly impact the women with the least privilege.
What’s next? That doesn’t have to just be up to SCOTUS. Indeed, looking at the history of abortion in this country, from abortion as a very normalized procedure to it’s conversely quite criminalized nature today, we have been here before. The important thing to know is that we don’t ever have to be here again.