[Roe v Wade]
 
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AN IMPORTANT STUDY OF THE HISTORY AND LAW OF THE ABORTION RIGHTS CONTROVERSY:
A Review of Hull and Hoffer's New Book on Roe v. Wade


By PAUL FINKELMAN


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Friday, Sept. 28, 2001

N.E.H. Hull and Peter Hoffer, Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence: University of Kansas Press, 2001).

It is hard to imagine a better introduction to the problem of abortion and American constitutional law than N.E.H. Hull and Peter Hoffer's recent work on Roe v. Wade. Hull, a Distinguished Professor of law and history at Rutgers-Camden Law School, and her husband Hoffer, a Distinguished Professor of history at the University of Georgia, have written an impressive, clear, and easily understood history of the 1973 decision.

The book is neither preachy nor opinionated. Doubtless, some readers will come away from the book annoyed because it doesn't support their preconceived positions or moral outlook. But anyone seriously interested in the subject will find this a gust of fresh air.

An Eye-Opening Discussion of Abortion Throughout History

Long before the invention of the condom or the pill, women were taking herbal remedies and other folk medicines to successfully terminate unwanted pregnancies. In ancient Rome, and traditional native American societies, abortions were commonplace and legal.

In colonial America, abortions were also common, but kept secret because most of the colonies prosecuted fornication. Thus, an unmarried girl or woman needed to keep her abortion secret to hide her earlier illegal act: sexual intercourse.

The authors also demonstrate that when abortions were unavailable, or unsuccessful, women often resorted to killing their newborn children (neonaticide). Later in the book, the authors offer persuasive evidence that abortions have been common not only in times and places when they were legal, but also when they were illegal. However, when the procedure was illegal, there was an increase in the number of women dying through botched abortions, often in horrific pain.

All of this evidence should give pause to those who think legalization of abortion has stimulated what they believe to be immoral behavior by increasing the abortion rate. As Hull and Hoffer show, whether abortion has been legal or not, historically woman have become pregnant against their will or desire, and have sought to terminate these pregnancies.

There is no reason to believe that would change if Roe v. Wade were overturned. Rather, the difference between a world with Roe and one without Roe, it appears, would be measured in the lives of women who died seeking illegal abortions, far more than in the increased number of unwanted pregnancies brought to term.

The Genesis of Abortion Bans

Hull and Hoffer provide a detailed analysis of how and why states began to ban abortion after the Civil War. The antiabortion laws were not, as one might think from the modern debate, rooted in moral claims about when life begins or whether a fetus is a human being. Rather, three trends of late nineteenth century thought and culture led to the laws banning abortion.

First, there was the hostility to sex and sexuality that epitomized middle class Victorian morality. Sex was dirty and so anything having to do with sex, other than for procreation, was to be stamped out. (Queen Victoria is alleged to have told women that when they went to bed with their husbands they should lie down, close their eyes, and think of England.)

This ideology led to the Comstock laws — named for the most famous prude and busybody in American history, Anthony Comstock — which ostensibly banned pornography from the mails, but were in fact used to suppress dissemination of information about birth control, family planning, human sexuality, and abortion.

Third, and finally, the assault on legalized abortion came from the medical profession. Some physicians wanted to rid the nation of midwives, purveyors of patent medicine, and other non-professional medical practitioners. Others had the interests of pregnant women at heart, arguing that abortion was a dangerous procedure that often ended in the death of the woman.

Changing the Antiabortion Laws

This last origin of the antiabortion laws would arise in the Roe litigation a century later. In arguing to uphold his state's abortion law, Texas assistant attorney general Jay Floyd was forced to concede that the antiabortion laws had not been passed to protect the fetus. Rather, they had been enacted to protect the mother from a dangerous medical procedure often performed in the late nineteenth century by quacks and non-professionals.

By 1973, this paternalistic notion of protecting women was neither acceptable nor constitutional. Furthermore, as Sarah Weddington would show in her argument for the other side in Roe, abortions were actually safer for women than carrying a pregnancy to term. Clearly, the nineteenth century rationale for abortion could not hold up in the late twentieth.

It would, of course, take nearly a century to turn the society, and the law, around. By 1900, abortion, except to save the life of the mother, was illegal in all states, as was the dissemination of birth control information. Change began in the early part of the century, in part because of the heroic efforts of Margaret Sanger and other family planning activists.

Changing attitudes towards sex, the human body, and the nature of families also led to new attitudes on birth control. Some of this change in attitudes was tied to concern for poor women, who were least able to either afford more children or find ways to prevent pregnancy. But, as Hull and Hoffer show, allies in this movement also came from supporters of eugenics and opponents of immigration, who saw birth control (and abortion) as a way to limit the growth of "less desirable" populations.

Changing Ideas About Abortion

The movement for open access to birth control naturally led to changes in ideas about abortion. Many argued that birth control was an issue of women's autonomy, marital privacy, and doctor-patient relationships, and that the state had no business interfering in the most intimate decisions of the people. And it was not a great leap from birth control rights to abortion rights.

Indeed, as Hull and Hoffer show, the Supreme Court made that leap in a mere eight years, from Griswold v. Connecticut in 1965, which struck down an anti-birth control law on "right to privacy" grounds, to Roe in 1973, which extended the right to privacy to protect the right to terminate a pregnancy.

Other Rationales That Might Have Grounded Roe

Yet, despite the consensus — poll after poll shows majority support for the right articulated in Roe — the issue still polarizes Americans. Indeed, a substantial minority believes abortion is murder. While there is no historical or common law basis for such a view, there are modern religious arguments to support it, coming from both the Roman Catholic Church and numerous evangelical Protestant churches.

The debate over Roe has been raging since Justice Blackmun delivered his opinion. As Hull and Hoffer show, before the opinion was issued, the Court was confused and at odds, not over the outcome of the case, but over how to proceed.

Blackmun, who wrote the majority opinion, disliked the assignment, and was apparently overwhelmed by it. He focused on the medical issues of the case, but had trouble developing a clear constitutional theory. Initially, he wanted to strike down the Texas laws as unconstitutionally vague, rather than as an infringement of the right to privacy. But of course, had he taken this route, Roe would not have provided a useful answer or precedent.

Thus, Blackmun also argued for a Fourteenth Amendment "liberty" right of women, which opponents of Roe have castigated as a "substantive due process" position no different than what the Court took in its reviled decisions in Dred Scott v. Sandford (in 1857) and Lochner v. New York (in 1905).

Others on the Court would have preferred a different approach, stressing the right to privacy found in the Ninth Amendment. The Ninth Amendment states that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." James Madison added that amendment to the Bill of Rights, because he understood that it would be impossible to list all the rights and liberties that deserved protection from government interference. There is no "right to privacy" in the Constitution, but the argument in Griswold and Roe is that such a right belonged to the people at the time of the adoption of the Constitution and the Bill of Rights, and that it is one of the "unenumerated rights" protected by the Ninth Amendment.

In retrospect, that position might have been more successful in persuading lawyers and law professors that the Court's analysis was correct, than the position Blackmun actually staked out in Roe.

The Continuing Polarization Over Abortion Rights

But no argument, of course, would have persuaded the diehard opponents of abortion rights. As Hoffer and Hull note, these opponents remain relentless in their desire to prevent all abortions in the nation, despite their losses at the voting booths and in public opinion polls.

Frustrated in their holy righteousness, some abortion rights opponents have gone beyond picketing and protesting. Some commit murder, killing doctors and clinic personnel, in their holy crusade against what they believe to be legalized murder. Others who are not violent themselves, nevertheless fail to condemn anti-abortion terrorists, and instead offer explanations, rationalizations, or sympathy for these killers.

The value of this book is not in the position it takes, since it takes none. Instead, Hull and Hoffer have produced a fine, careful, and comprehensive study of one of our most difficult legal issues. They have successfully placed the abortion rights controversy in its historical and legal context, demonstrating its complexity while educating the reader about the constitutional issues it has created.


Paul Finkelman is the Chapman Distinguished Professor of Law at the University of Tulsa College of Law. Professor Finkelman is author of Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y.: M.E. Sharpe, 2001) and co-author, with Melvin Urofsky, of A March of Liberty: A Constitutional History of the United States (New York: Oxford University Press, 2001).