This Is 40: Checking Up on Roe v. Wade

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Photo: Joe Raedle/Getty Images

Forty years ago today, the Supreme Court ruled seven to two in favor of a twentysomething Texas mother called Jane Roe and her two twentysomething lawyers, Linda Coffee and Sarah Weddington, over Dallas County Attorney General Henry Wade and the state’s abortion ban. The decision came down far too late for Roe, who was six months pregnant, for the third time in her life, when the suit was filed. But it established that the decision to terminate a pregnancy was between a woman and her doctor, without interference from the state, on the grounds of a somewhat nebulous constitutional right to privacy established in the 1965 case that overturned Connecticut’s contraceptive ban.

Judging from this week’s news coverage, the abortion rights movement is celebrating the big 4-0 in the style of a Judd Apatow hero, with low-grade existential angst. Once radical and relevant, the landmark case is now so ubiquitous that, according to a glum Time magazine cover story, the women who fought for it say young people take it for granted. That might not just be the usual feminist matricide: A recent Pew poll confirms that more than half of Americans under the age of 30 don’t even know what Roe v. Wade is. Gallup adds that only 41 percent of Americans identify as pro-choice, a low so historic that Planned Parenthood scheduled a press briefing to announce that the movement is getting a makeover. And though Obama’s reelection means the Supreme Court is safe for now, and NBC and the Wall Street Journal’s polls said a record 70 percent of Americans oppose overturning Roe v. Wade, record levels of insidious, devil-in-the-details abortion restrictions were put on the books in 2011, calling into question the strength of the decision. Last we checked the 40th annual anti-abortion March for Life, also planned for Roe’s birthday each year, is still on for Friday.

Roe v. Wade is also not without critics on the left. One of the most public and most expert is Justice Ruth Bader Ginsburg, who last year lamented that Roe had “moved too far too fast.” It mobilized pro-life culture warriors while state legislatures, left to their own devices, might have moved in a more liberal direction, as they have with same-sex marriage. (Not that it’s settled yet.) Supreme Court justices are keen to take this kind of long view on things, but abortion is inherently urgent. The plaintiff Jane Roe was chosen in part because her pregnancy was not so far along that it would be moot by the time the suit was filed, according to a blockbuster profile in Vanity Fair this month, and she agreed to sue because she sincerely believed she would be the first woman in Texas to get a legal abortion. When you need an abortion, you need an abortion, and history suggests legality, high costs, and health risks won’t stop women who need one from getting one. “Women were paying the price with their lives,” Planned Parenthood director Cecile Richards said in response to Ginsburg.

The pro-life movement has capitalized on this tendency to think about abortion on an abstract, impersonal, and constitutional scale. While Roe v. Wade might be a less-than-ideal foundation for abortion, its Achilles’ heel is Planned Parenthood vs. Casey, the 1992 decision which upheld Roe but gave states the right to restrict abortion so long as they did not place an “undue burden” on the woman. Pro-life group Americans United for Life, headed by chipper CEO Charmaine Yoest, has systematically tested that limit across the United States with prefabricated state legislation designed to limit abortion access under the guise of protecting women’s health. That includes proposed laws requiring transvaginal ultrasounds for patients (possibly the most literal undue burden) and hospital admitting privileges for providers, aimed at smothering Roe with red tape. They have already left Arkansas, Mississippi, North Dakota, and South Dakota with just one abortion clinic apiece. Let’s not even get started on the Hyde Amendment, which prevents low-income women from getting abortions by not requiring that Medicaid cover them.

The pro-life movement has successfully taken on abortion from the bottom up, but if Ginsburg had her way, the right to choose would now be rooted in the less polarizing idea of pregnancy discrimination. Two years before Roe v. Wade, Ginsburg filed a brief before the Supreme Court on behalf of Susan Struck, an Air Force captain who became pregnant and was told to have an abortion — hard to fathom, given the state of abortion in the military today — or quit. The Supreme Court agreed to hear the case, but then–Solicitor General Erwin Griswold convinced the Air Force to change the rule and drop the discharge first. A pro-choice precedent in which the “choice” was to have the child, would not only have been more politically palatable, Salon’s Irin Carmon reported, it “would have been consistent with the current reproductive justice framework, which is about bodily autonomy and a woman’s right to moral dignity and self-determination.”

Another case for abortion as self-determination (through reproductive autonomy) has been made using the Thirteenth Amendment, which abolished slavery and forbids involuntary servitude. Pregnancy and motherhood is work, wrote Northwestern University legal scholar Andrew Koppelman in a 1990 article, therefore any state laws banning abortion “violate the amendment’s guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of the status of birth, is held subject to a special duty to serve others and not themselves.” Labor isn’t just a pun. Koppelman is careful differentiate the burden of involuntary motherhood from the blessed, awe-inspiring gift of voluntary motherhood, but the idea that motherhood could be work — most aspects of motherhood, really — remains controversial. Merely alluding to the Thirteenth Amendment case for abortion rights in a footnote decades ago cost Obama Department of Justice nominee Dawn Johnsen her post, due to Susan Rice–style blowback from right.

Still, the idea that restricting reproductive rights is a form of subordination has an enduring appeal that was reflected in an election season PSA’s use of Lesley Gore’s “You Don’t Own Me,” a song that predates Roe by a decade.

The lip-synching video, packed with celebrities but still charmingly DIY (for anyone looking to rebrand anything, wherever Tavi and Lena Dunham are can’t be a bad place to start), was presumably directed at the Richard Mourdocks and Todd Akins of the election, but it could have been a lot of things: a bad boyfriend, an employer who won’t cover your birth control on religious grounds, biology, the man. This is the principle behind the reproductive justice framework advocated by groups like SisterSong Women of Color Reproductive Justice Collective — the reasons women get pregnant when they don’t want to and can’t possibly stay pregnant are as unjust as the restrictions on how they get un-pregnant.

People like to wax poetic about the term pro-life, as if it’s some brilliant subliminal advertising trick, but the strength of the pro-life movement has always been that it’s anti-abortion — the signs have dead babies on them, not living ones — and abortion’s an easy target. No one should have to make a choice about abortion until they need to. This is why it’s not a contradiction that more than half of women tell Pew that abortion is not an important issue facing the country, yet a handful of ill-informed, ill-spoken Republicans who reveal their designs to legislate women’s bodies can scare voters across party lines. It’s not an important issue until it becomes an individual choice. Thanks to Roe v. Wade, we no longer have to fight for a right to choose, so the pro-choice movement should focus on the people and (sorry) the systems that limit our choices. It’s an anti-asshole movement.