By this time next year, it’s quite possible that abortion will be illegal in many parts of the United States.
The U.S. Supreme Court announced May 17 that it will hear a case from Mississippi challenging a state law that bans nearly all abortions after 15 weeks of pregnancy. That law, and similar statutes in other states, have been struck down by courts citing Roe v. Wade, the landmark 1973 ruling that declared abortion a constitutional right. But now Roe’s fate hangs in the balance. The high court, with a 6-3 conservative majority, may have the votes to fatally undermine Roe or overturn it outright.
If the court ditches Roe, abortion policy will return to state legislatures. Several states are likely to ban the medical procedure outright. Thus, a long-sought goal of Christian nationalists may finally be in reach. The death of Roe will undoubtedly spur more activity by Christian nationalist groups in state legislatures, with strong support from the hierarchy of the Roman Catholic Church.
Reproductive choice advocates are alarmed.
“The Supreme Court’s decision to review this unconstitutional ban is an ominous sign and an alarming reminder that the threat of the legal right to abortion is imminent and real,” said NARAL Pro-Choice America Chief Campaigns and Advocacy Officer Christian LoBue in a statement. “If Roe v. Wade were to fall as a result of this case, states across the country are poised to ban abortion. The impact would be devastating, especially on those who already face the greatest barriers to care, including people of color, trans and non-binary people, those with lower incomes and those in rural areas.”
Opposition to abortion in the United States is heavily anchored in conservative religious groups, primarily conservative Catholics and white conservative evangelicals. The latter group actually came to the game a little late, and there was a time when the Southern Baptist Convention actually backed the central finding of Roe.
As writer/researcher Katherine Stewart told Church & State last year, many evangelicals supported Roe after it was handed down in 1973.
“When Roe v. Wade was passed, an editorial in a wire service run by the Southern Baptist Convention hailed the decision,” Stewart said. “Most Republican Protestants at the time supported liberalization of abortion law. Ronald Reagan passed the most liberal abortion law in the country in 1967; conservative hero Barry Goldwater supported abortion law liberalization too, at least early in his career. And Goldwater’s wife, Peggy, was a cofounder of Planned Parenthood in Arizona.”
Early, vociferous opposition to Roe – and, before the ruling, to state laws that liberalized abortion – was led by the Catholic hierarchy. By the late 1970s, though, many conservative evangelicals had joined the crusade as part of a larger “culture war.”
“[A]ctivists, including Phyllis Schlafly, who saw the potential for this issue to unite a new movement, purged pro-choice voices from the Republican Party,” Stewart said. “The ‘pro-life religion’ that we see today is a modern creation, and it was created for political purposes.”
Catholic Church opposition to legal abortion, which, by the way, is not shared by a majority of the church’s members, was in many ways an outgrowth of the work the church did to restrict access to artificial contraception in the 1950s, ’60s and ’70s.
Prior to the invention of the birth-control pill, contraceptive devices were few, mainly limited to condoms and spermicides. Even these products could be hard to get in some states because they were targeted by church leaders. In some parts of the country, laws were so strict that doctors could be punished for the mere act of discussing birth control even with married couples.
In 1949, four doctors were fired from Farren Memorial Hospital in Greenfield, Mass., because they refused to stop discussing birth control with patients who had requested the information. Hospital officials offered to reinstate the doctors only if they would cease discussing the issue with patients. They refused. A state law at the time flatly prohibited doctors from providing any information about birth control, even if a patient requested it.
Three years later, Planned Parenthood launched a petition drive in Massachusetts to overturn the law. The group secured 80,000 signatures on a petition, but the state’s powerful Catholic hierarchy raised a fuss and the drive went nowhere.
In 1960, birth control advocates in Chicago announced plans to add information about contraceptives at a clinic that served a largely low-income population. Reaction from the Catholic hierarchy was swift, and the plan was quickly scuttled.
With so many state legislatures cowed by religious leaders, Planned Parenthood officials concluded that they needed to head to court – so they engineered a test case.
In 1961, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. Charles Lee Buxton, chairman of the obstetrics department at Yale Medical School, opened a clinic in New Haven, Conn., to dispense birth-control information.
No actual birth control was available at the site; it just offered information. And its creation was designed to spark a reaction, which it did. The Catholic hierarchy went on the warpath, and nine days later police raided the clinic.
Buxton and Griswold knew the raid was coming. They had opened the clinic specifically to test a law originally passed in Connecticut in 1879 that banned the use of artificial forms of contraceptives in the state for everyone – even married couples.
State courts ruled against Griswold and Buxton, but in 1965 the U.S. Supreme Court overturned those decisions, ruling 7-2 in Griswold v. Connecticut that Connecticut’s anti-birth-control law was unconstitutional.
Citing “the zone of privacy created by several fundamental constitutional guarantees,” Justice William O. Douglas observed, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights.”
The Griswold decision, and ones that came after it extending the right to use birth control to unmarried persons, laid the groundwork for the decision in Roe. In the Roe ruling Justice Harry A. Blackmun, writing for the majority, found that a Texas law that criminalized most abortions violated the constitutional right to privacy.
Blackmun acknowledged that the Constitution does not explicitly guarantee a right to privacy. Yet he noted that the high court, in several of its rulings, “has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” He listed Griswold as one of these rulings.
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Blackmun wrote. “The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.”
The court did not rule that abortion at any point was an absolute right, and the Roe decision permits states to regulate the procedure as a fetus approaches viability. But those restrictions have never satisfied the Catholic hierarchy and the Christian nationalist groups that later joined the anti-choice crusade. They sought nothing less than a ban on all abortions.
Thus, since Roe was handed down, many states have seen repeated efforts to erect barriers to the procedure. These laws have taken many forms, including burdensome regulations applied only to abortion clinics, waiting periods, bans on late-term abortions, demands that clinic doctors have admitting procedures at local hospitals, requirements that women seeking abortions be given information that is essentially anti-abortion propaganda and measures requiring women to undergo medically unnecessary ultrasound procedures.
At the same time, extreme anti-abortion factions engaged in acts of domestic terrorism including bombing abortion clinics and murdering abortion providers. The combination of constant legislative harassment and fears of violence have reduced the number of abortion clinics nationwide. Some states have only one.
Despite the language of Roe, lawmakers in some states have simply attempted to ban abortion anyway, in the hope of sparking new legal challenges. This tactic failed when federal courts struck these laws down.
The Mississippi law currently pending before the Supreme Court is an example. Passed in 2018, the so-called Gestational Age Act prohibits an abortion in Mississippi after 15 weeks except in the cases of a medical emergency or severe fetal abnormality – there are no exceptions for rape or incest. Under Roe, abortions are permitted until a fetus is viable, around 24 weeks, a standard that is weeks beyond what the Mississippi statute allows.
Mississippi’s governor at the time, Phil Bryant (R), acknowledged that the legislation would result in a lawsuit. That legal action came quickly. A federal court struck down the legislation, and that ruling was upheld by the 5th U.S. Circuit Court of Appeals. (The state’s sole abortion clinic, Jackson Women’s Health Organization, has been the focus of anti-abortion protests for years.)
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions,” the appeals court observed in Dobbs v. Jackson Women’s Health Organization. “The law at issue is a ban.”
Undeterred, Mississippi officials appealed to the U.S. Supreme Court, which accepted the case. Under the high court’s rules, a vote of four justices can add a case to its docket. Many legal observers believe there are likely five votes on the court to overturn Roe outright or fundamentally undermine it to the point where the right to legal abortion becomes meaningless to many women in America.
Another possible scenario is a two-tiered system where a woman’s rights depend on where she lives and her economic situation. In many “blue” states, where abortion is likely to remain legal, women will continue to have access. But women in conservative “red” states will lose the right to abortion, unless they happen to be wealthy enough to be able to travel to a state where the procedure remains legal.
Supporting reproductive justice has been part of Americans United’s mission from the organization’s earliest days. In the 1950s and ’60s, AU advocated for overturning state anti-birth-control laws. When Roe was handed down in 1973, AU expressed hope that the ruling would be accepted as a reasonable way to resolve a divisive issue (a view that proved to be far too optimistic).
In the 1980s, as states tried to pass new restrictions on abortion and anti-abortion terrorism escalated, AU warned that opposition to abortion was spearheaded by the same theocratic forces that sought to remake America in their own image. They also sought to take over public schools, ban the teaching of evolution and undermine the rights of non-Christians.
In the late ’80s, legislators in Missouri passed an anti-abortion bill that banned public employees and public facilities from being used to perform or assist with abortion, banned counseling to have abortions and required physicians to perform fetal-viability tests on any woman who was more than 20 weeks pregnant. The law also declared that life begins at conception, a provision that caught the attention of Americans United.
In court, AU filed a legal brief arguing that the origin of life is a theological, not scientific or legal, construct – one that had no place in the preamble of the Missouri law.
Justice John Paul Stevens accepted AU’s argument, but the court majority was not persuaded. It upheld the law in the case Webster v. Reproductive Health Services. (For more on the history of Americans United’s involvement with the abortion issue, see “Vanishing Choices,” July-August 2019 Church & State.)
As many commentators have pointed out over the years, basing abortion policy on a religious group’s doctrine raises serious church-state concerns because those theological precepts aren’t shared by everyone. In Judaism, for example, there are some situations in which an abortion may be required.
AU President and CEO Rachel Laser outlined the issue’s connection to church-state separation and religious freedom.
“Religious extremists have a long and dangerous history of attacking reproductive freedom in our country,” Laser said. “Our policy in this area must be guided by a respect for individual decision-making undergirded by sound science and medicine, not theological views held by a minority of Americans.”