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Published: Fall 2004

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Copyright (c) 2004 by the University of North Carolina Press. All rights reserved.




Introduction

It is the summer of 2002. We are driving along a suburban four-lane road, past a local hospital and spa, ballfields, and a small outdoor shopping center. A bright Saturday morning in South Jersey. We come upon a series of demonstrators along the berm, holding aloft larger-than-life banners with actual (we supposed) but color-enhanced pictures of dismembered fetuses. Placards remind the drivers, who have slowed to view the display, that Jesus would not have approved laws that sanctioned the murder of the unborn. The demonstrators are young and clean-cut white men and women, wearing white shirts and shorts. They are the picture of health and make a startling contrast with their sanguinary billboard-size photographs. The demonstrators jump up and down and call to the drivers like high school boosters soliciting car washes. But no one can take their eyes off the visual display. After all we have seen of terror and war, these gruesome pictures still have the power to shock us.

We did not stop to ask who was demonstrating. Perhaps the youth group of a local church. The South Jersey churches are divided on the issue of abortion, and the state has a liberal law—there is no waiting period, parental consent is not required for a minor seeking the procedure, and medical insurance is not barred from paying. As a result, New Jersey has one of the highest abortion rates (36.3 abortions per 1,000 women aged 15 to 44) in the country. Only New York (39.1) and the District of Columbia (68.1) are higher.[1] The whole point of the demonstration was to gain support for an amendment to the state constitution requiring parental consent for all abortions sought by minors.

Perhaps the demonstrators belonged to the loose national confederation of "rescue" groups. The most violent of these, the Army of God, destroyed abortion clinics and threatened doctors until its leaders were indicted and convicted for criminal assault. Operation Rescue, once a powerful national coalition, is now largely defunct and nearly bankrupt; even its name has changed, to Operation Save America. A decade ago, the organization could summon thousands of protesters to shut down urban clinics, and demonstrators used bullhorns so loud that patients in the clinics could hear the chanting through the walls of the building. There were no bullhorns in sight this morning, and the demonstrators did not try to prevent anyone from entering the hospital. But the placement of the pictures at the entrance to the medical facility was not accidental.

In one of the many ironies of the controversy, rescues, state-imposed waiting periods, refusal to use public Medicaid funding and hospital facilities, and other pro-life measures have combined with improved chemical contraceptives, some of which are actually abortifacients, to reduce the national rate of abortion from a high of 30 per 1,000 women aged 15-44 in 1979 and 1980 to a low of 22 per 1,000 at the end of the 1990s. Still, there are over 1.3 million abortions in America every year. Even if some abortion clinic entrances are quieter than they were in past years, fewer exist now than a decade ago. Over 87 percent of counties in the United States have no abortion provider. As we write, the pro-life movement is as strong as it ever was, with support from President George W. Bush, Attorney General John Ashcroft, and a majority of both houses of Congress. Pro-life forces have won many victories in the last few years and look forward to the day when the U.S. Supreme Court reverses its decision in Roe v. Wade (1973) affording constitutional protection to women seeking abortions.[2]

Unlike many other demonstrations against abortion, there were no counterdemonstrators that morning. Few today defend abortion as a positive good, even when done in the most medically safe manner. As the poet, essayist, and feminist Adrienne Rich has written, "No free woman, with 100 percent effective, nonharmful birth control available, would 'choose' abortion."[3] The pro-choice argument is that women should have the right to decide whether to remain pregnant. It is their body and their future that is at stake. To underline the point, the National Association for the Repeal of Abortion Laws (NARAL) has changed its name to NARAL Pro-Choice America.

The day after the demonstration we had witnessed, August 11, 2002, the Philadelphia Inquirer Sunday Review carried a feature by Jane Eisner. In an eastern Pennsylvania court, a judge first barred and then allowed a young unmarried woman to have the abortion she sought. He had stopped her at the request of her estranged boyfriend, then decided that her rights outweighed his. Eisner expressed her sympathy for fathers but concluded, "Ultimately, reproductive rights are women's rights, unless and until a man is biologically able to endure the joy and hell of pregnancy and childbirth."[4] Eisner's report was moderate in tone—hardly as confrontational as the demonstration by the side of the road the day before. But the implication of her reports, that the decision was one for the conscience of individual women, is the essence of the pro-choice campaign.

The results of that campaign vary from state to state. Some, such as New Jersey, New York, New Hampshire, New Mexico, Florida, Hawaii, Oklahoma, Oregon, and Vermont, as well as the District of Columbia, have almost no restrictions on abortion sought in the first trimester of pregnancy. Other states, including Idaho, Kentucky, Mississippi, North Dakota, Ohio, Pennsylvania, Rhode Island, and Virginia, have many restrictions on who can perform the abortion, where it may be performed, and various kinds of permissions, waiting periods, and "consent forms" (warnings about the dangers of abortion and the availability of alternatives). Some states allow a judge to permit the abortion when a minor cannot get or will not ask permission from a legal parent or guardian. On one reported occasion, in Montgomery, Alabama, a state judge named Walter Mark Anderson III faced a number of requests for "judicial bypasses" to parental consent. Under the state's law, if he deems the young woman mature enough to understand the implications of her decision, he is required to grant her request. A conservative Republican, he is personally opposed to abortion, "but I have an oath to uphold," he recently told a journalist, "and as much as I hate it, if I find, by the facts, that the girl is in compliance with [the state] law, I have to grant it."[5]

Our experience this weekend was a microcosm of an ongoing national agony. During the eight years of President Bill Clinton's term in office, many of the restrictions on abortion information—for example, on military base hospitals, in birth control funds for foreign countries, and in federal family assistance plans—were lifted. In 2001, with the inauguration of President George W. Bush, federal policy returned to its pre-Clinton course. Restriction on information and funding returned. Pro-life organizations celebrated; pro-choice organizations warned that all of the gains of the past quarter century were in jeopardy. John Ashcroft, who as state legislator, attorney general, governor, and senator from Missouri had opposed all abortion measures except to save the mother's life, was confirmed as U.S. attorney general. Why should the innocent unborn suffer for the misconduct of the father and the plight of the mother, he worried. He promised to uphold the law as it stands when it is "settled" but did not indicate whether he regards Roe as falling in this category. Norma McCorvey, who in the early 1990s proudly revealed her service in an abortion clinic, now ran the Roe No More Ministry in Dallas, a referral service for speakers against the decision.

It is often said, and with much truth, that our country defines itself by its laws. We take justifiable pride in our constitutions and codes because they express our ideals as well as the realities of political life. Controversy over law performs a parallel cultural function by highlighting important divisions among us. As we will see in this reader, abortion and abortion rights are among the legal issues in American history that both define our character and delineate the fissures in our thinking. Over a decade ago, litigator and law scholar Catharine A. MacKinnon put the "abortion right" at the center of her case for "Feminism unmodified."[6] In the same year as MacKinnon argued for abortion rights, another leading law scholar, Mary Ann Glendon, warned against regarding such court-defined rights as absolutes. "A people that lacks a common religion, history, or customs is apt to regard law, especially criminal law and constitutional law, as an expression and source of common values. But at the same time that law is increasingly treated as a value-carrier, there is an almost total lack of agreement about how and where the values it carries are to be discovered."[7]

As both MacKinnon and Glendon go on to argue, abortion and abortion rights disputes are central to our conception of ourselves because they reach out beyond the realm of courts and legislatures to everyday life. They touch the most intimate areas of women's lives and family styles and the most dearly held notions of religion and personal autonomy. At the same time, they fuel the most hotly contested public debates. Finally, they bring together doctors, lawyers, elected officials, judges, and scholars as few other legal issues do.

Roe v. Wade has given the focus to the recent debate, but controversy roiled long before the U.S. Supreme Court attempted to define a right to abortion and gained even more intensity after its ruling was handed down. As the documents in the following chapters demonstrate, the course of the debate follows the larger outlines of increasing state interest in ordinary people's everyday lives. The ancient and early modern state took little interest in abortion. The premature end of a pregnancy was regarded as the concern of the family. In societies where the father had absolute control of the rest of the family, abortion and infanticide were widely practiced and not illegal. In ancient Egypt, Greece, and Rome, abortion was a common form of birth control. Christian teachings prohibited abortion after God implanted the soul in the infant. "Ensoulment" was tied to "quickening," when the woman could feel the child moving of its own volition in the womb. In the Bible, a fine was levied on anyone performing an abortion after quickening, and an abortionist faced death if the woman died as a result of the abortion or the attempted abortion. The Koran does not mention abortion specifically, but Islamic thinkers in early times did not regard abortion before 120 days (or, for some theologians, 40 days) as a crime in itself. Talmudic scholars decided that the harm had to befall the woman, not the fetus, for an attempted abortion to be a crime. The rabbis also concluded that there was no crime unless the fetus had quickened, but abortion was still permitted if the pregnancy endangered the mother's life. Some Jewish jurists went so far as to allow abortion if the pregnancy hurt the mother's reputation. Medieval European medical writings referred to the early fetus as a toad or a parasite, not as an unborn child, but the same writers saw abortion after quickening as a mortal sin, for the fetus then had a soul. Although the Roman Catholic Church frowned on contraception of all kinds, it was not until 1869 that the papacy denounced all abortions, even those that were undertaken before quickening, under the theory that the soul was implanted at conception. Many modern Islamic theologians restrict abortion to situations where the health of the mother or a nursing child is at stake.

In the nineteenth century, the state became far more concerned about day-to-day life, particularly for young people. Compulsory public education plans fundamentally restructured the lives of school children, the taxing responsibilities of governments, and family values. Education became the focal point of domestic life. Public commissions to investigate and regulate hospitals, asylums, and medical care also changed the way parents cared for their children. State legislatures began to pass laws limiting or forbidding the dissemination of birth control information. The federal government came to regard materials describing contraception as a form of pornography and banned them from the mails. Under new laws, states began to prosecute individuals for performing abortions and women for seeking them.

This thoroughgoing anti-abortion regime lasted well into the twentieth century, but the drive for birth control that began in the 1920s eroded the antipathy to abortion in certain kinds of cases, and the number of abortions skyrocketed during the Great Depression. A movement for "reform" of abortion law came from the ranks of doctors who treated victims of botched abortions. The doctors called for a broadening of the so-called therapeutic exceptions to abortion law for women whose pregnancies came about through incest or rape, as well as for women whose pregnancies for them posed physical or mental problems. The "reform" movement gained the support of lawyers and law professors concerned about the rights of women to choose to end pregnancies. A different approach to abortion law, based on the concept of women's rights, became a centerpiece of the women's liberation movement in the 1960s and 1970s. A number of states had passed reform legislation by the end of the 1960s, but many advocates of choice were also working through the courts for an end to all laws criminalizing abortion. By the beginning of the 1970s, a few federal courts had ruled that women had a constitutional right to end their own pregnancies. In 1973, the U.S. Supreme Court adopted this stance in Roe v. Wade.

That decision was supposed to end the controversy. Instead, it made the dispute even more vituperative. The abortion question became what many journalists called a "litmus test" in politics, as both major political parties took sides on the issue. State legislatures passed a bewildering variety of regulations governing doctors, hospitals, and counseling centers regarding abortion, and the U.S. Congress chimed in by denying public funds for abortion procedures and birth control centers that provided information on abortion to their clients. Instead of ending lawsuits over abortion rights, the decision in Roe seemed to spawn them. Soon the Supreme Court was hearing cases about abortion regulations and funding, and even cases about anti-abortion picketing of clinics. Plainly, the study of abortion and abortion rights remains, as it was for MacKinnon and Glendon over fifteen years ago, a way to understand American law and American life.

On a subject so varied, vast, and controversial as abortion and abortion rights, no single work can be comprehensive. There are dozens of collections of firsthand accounts and dozens more scholarly studies, not to mention the thousands of articles, opinion pieces, and news reports and a number of encyclopedias and multivolume resource books—and this in the past decade alone. Many of them are mentioned in the recommended reading at the end of this book. Navigating through this archipelago of writings is a daunting task, even for the expert. One must assess not only the validity of arguments but also the biases of the authors. In this book we focus on the legal and historical story, attempting to offer a balanced, reflective review of the many voices raised in the course of the controversy. Two of the editors have already published a narrative of the abortion rights controversy in American history.[8] That book was designed as a kind of primer for college students and lay readers. The format of the series in which the book appeared forbade us from wandering far from the case itself into the many other public forums where Roe's emanations reached. Neither were we able to present more than squibs from the rich documentation of the public debate over the case and subsequent holdings of courts on regulation of abortion.

Whether abortion is a matter of choice or an abomination; whether the right to it can or cannot be found in our fundamental law; whether it should be left to the courts or to the legislatures; whether the fetus has rights that the state must protect or the state should respect the woman's right to determine her reproductive fate; and whether and when the fetus should be considered a person under the law—all are questions considered in the following readings. We take no position on any of them, save to explain a little bit about them in the headnotes that precede each selection. The focus questions in some headnotes are intended to help the reader spot key issues, think about alternatives to the argument the author of the selection has made, and master content. Our questions are not intended to be definitive in any way, nor is anything in them to be taken as showing a preference or displaying either disrespect or disagreement with the authors of the selections.

Throughout the book we have tried as well to put the case into the long context of abortion controversy in our history. If there is no clear answer to the problems that abortion and abortion rights raise in law, perhaps a historical view of these subjects will allow us to see them in their largest context. It is a rule of thumb in law that apparently intractable issues can sometimes be resolved when one puts them in a longer time frame. Then we can examine a much larger piece of the social and political situation. Thus it is not surprising that legislators and judges facing the abortion question have routinely taken history into account.

A Note on Editorial Method

In this collection we have tried to include a portion from every crucial legal text on the abortion/abortion rights controversy over the years. We aimed at a documentary history of ideas, events, and opinions. Unfortunately, often the documents themselves were long, repetitious, and sometimes bad tempered. The opinions of Supreme Court justices in abortion cases sometimes ran on for dozens of pages and addressed very obscure points of law or highly technical matters of pleading and procedure not actually related to abortion or abortion rights. In the interests of clarity and utility for the reader, we concluded that we had to omit portions of these documents. Indeed, in some instances the selections in the following chapters represent only a small fraction of the original. At the same time, we did not want to prepare a collection of snippets unrepresentative of the texture or the coherence of arguments in the original. As a rule, we excised all text not unique to its author or to the ongoing debate. In addition, we routinely excluded "citations" (references) to other cases and footnotes in the judicial opinions and scholarly pieces except when these were necessary for clarity. We indicate missing text with ellipses.[9]

With a few noteworthy and in our judgment necessary exceptions, we have reproduced only what historians call primary sources. These reflect the ideas of participants in the story and were uttered or written at the time or shortly after their involvement. The recommended reading section lists many fine secondary sources on the controversy that readers may use to gain the insights of scholars, jurists, and journalists. "Briefs," arguments that parties and "friends of the Court" made to the U.S. Supreme Court, are taken from the Supreme Court's own files. Sources of ready access to these are indicated where the document appears in this book.

Finally, we have occasionally added material in square brackets to identify a person, place, or thing or to clarify a technical term. In similar fashion, we have identified the majority and dissenting opinions of judges by the names of their authors. Although the courts sometimes speak as oracles of the law, wherein the specific identity, interests, prior experience, and personal views of the justices do not matter, the historian knows otherwise. To be understood as historical documents, the opinions must be put in their chronological context and their authors must be recognized as real men and women with political, social, and economic perspectives of their own.

Some of the accounts in these primary sources, particularly those describing the act of abortion, are quite explicit. However one comes down on the issue of abortion rights, the act itself is not pretty. Reader discretion is therefore advised.

The authors gratefully acknowledge the assistance of James Mohr, Karen O'Connor, James W. Reed, and Mark Tushnet as well as reprint permissions from Neal Devins, Cynthia Karmarck, Cass Sunstein, and Sarah Weddington, the North Carolina Law Review, the Yale Law Journal, the New York Times, the Boston Globe, and Oxford University Press. The support of University of North Carolina Press assistant director Chuck Grench and his associate, Amanda McMillan, copyeditor Nancy J. Raynor, and assistant managing editor Paula Wald is gratefully acknowledged as well. A special thanks to the students in the legal history classes at Rutgers University-Camden School of Law, Seton Hall University, and the University of Georgia who helped us prepare and evaluate these documents and the secretarial staff at Rutgers who scanned, downloaded, and typed them.

Notes

1. Alan Guttmacher Institute figures, reported in New York Times, January 20, 2003, A16.
2. 410 U.S. 113. A note on citation form: U.S. is the abbreviation for the official reporter of opinions for the Supreme Court of the United States, United States Supreme Court Reports, in which all opinions of the justices are printed. By convention, the volume number of the report precedes "U.S.," and the first page of the case follows.
3. Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (New York, 1986), 269.
4. Jane Eisner, "Fathers Count, but Pregnancy Choices Belong to Mothers," Philadelphia Inquirer Sunday Review, August 11, 2002, C2.
5. New York Times, January 20, 2003, A16.
6. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass., 1987), 1.
7. Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, Mass., 1987), 139.
8. N. E. H. Hull and Peter Charles Hoffer, Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence, Kans., 2001).
9. All of the materials we edited out of the judicial opinions can be found in the printed versions of the full opinions in the United States Supreme Court Reports, for which we have given citations at the start of each selection, as well as online at www.lexis.com and www.oyez.com.