On Roe v. Wade and the Misuses of History by Dr Rhian Keyse
Late on 2 May 2022, the US news outlet Politico reported on a leaked initial draft majority opinion in the Dobbs v. Jackson Women’s Health Organization case. The opinion, written by Justice Samuel Alito in February 2022, indicates that the US Supreme Court has voted to strike down the 1973 Roe v. Wade decision, which legalized abortions carried out in the first two trimesters of pregnancy, as well as the 1992 Planned Parenthood v. Casey decision which reiterated those rights. In the draft, the authenticity of which has since been confirmed, Alito writes that the Roe decision was ‘egregiously wrong from the start’, and that both Roe and Casey ‘must be overruled’, suggesting that the right to abortion is not ‘protected by any constitutional provision’. Should the Court’s final decision resemble that in this draft, federal constitutional protections for abortion end, and the question of the legality of abortion would once again be a matter for individual states. The US reproductive health policy organization, the Guttmacher Institute, suggests that 26 states are ‘certain or likely’ to quickly outlaw abortion should Roe be overturned. Indeed, if this decision is confirmed, abortion would become illegal immediately in 13 states which have ‘trigger laws’.
The current Supreme Court bench is dominated by ‘originalists’ who argue that the Constitution must be interpreted according to the drafters’ intentions at the time that the document was composed. Whilst Alito acknowledges that supporters of the Roe and Casey decisions point to the Due Process Clause of the Fourteenth Amendment introduced in 1868, which guarantees some rights not explicitly mentioned in the constitution, the draft argues that any such rights must be ‘deeply rooted in this Nation’s history and tradition’. The right to abortion, Alito’s draft contends, ‘does not fall within this category’, and he suggests that until the late twentieth century, ‘such a right was entirely unknown in American law’, with abortion being illegal at all stages of pregnancy in three quarters of US states at the time the Fourteenth Amendment was introduced.
In what must be seen as an example of an attempt to invent tradition, a technique often used by ruling elites to legitimise power and control, this reading of US history misrepresents and reifies both legal and social histories which are in actuality more fluid and dynamic. Professor Laura Briggs argues that the constitution was ‘silent on abortion because its drafters believed that it – like virtually all medical procedures – should remain unregulated as a matter of law’, a view supported by an amicus curiae brief by historians submitted in the Dobbs case. Certainly, as Leslie Reagan points out in her now-classic book, in the eighteenth and early nineteenth centuries, abortion of early pregnancy was entirely legal under common law, at least up until the point of ‘quickening’ (when foetal movements in utero can be felt). Alito’s assertion that the right to abortion was ‘entirely unknown’ in American law thus does not stand up to historical scrutiny.
Turning to the argument that the right to abortion is not ‘deeply rooted’ in the ‘history and tradition’ of the US, histories of pre-Roe abortions suggest that attitudes have been, again, more fluid. Leslie Reagan points to a ‘popular morality that accepted abortion’ since the eighteenth century. James Mohr, in his classic study, details the range of abortifacient practices available to terminate pregnancies in the eighteenth and early-nineteenth centuries. Substances and other means of inducing abortion were widely-known. Even after abortion was criminalized in the mid-nineteenth century, there was little consensus on when pregnant people should be exempted from the law and allowed to access therapeutic abortions. In the 1920s, according to Reagan, working-class women made little distinction between contraceptives and abortion. US feminist self-help groups in the 1960s and 1970s taught women abortion techniques, while Gillian Frank’s work points to the role of liberal Christian clergy and rabbis in helping women access reproductive justice through extra-legal abortions.
Taken on Alito’s terms, what is the kind of ‘history and tradition’ that repealing Roe v. Wade points to? As the historian Lauren McIvor Thompson has highlighted, many rights enjoyed by American women are only a century or so old, such as the rights to vote, to access credit, to enter higher education, and to equal treatment before the law. Other rights, such as access to contraception (which scholar Anya Jabour argues are in the firing line post-Dobbs), are even younger. Black, indigenous and people of colour, and trans and nonbinary people continue to be excluded from full citizenship. As McIvor Thompson warns, ‘the default status for anyone who is not white, straight, or male…is actually to have no rights at all’. The desire to invoke this history is seen in the way that Alito and his base of support consistently ignore the scale of threat of sexual violence in the United States and the fact that no form of birth control is one hundred percent effective. The return to a pre-Roe ‘history and tradition’ is thus a return to higher maternal mortality among people of colour, to the exploitation of vulnerable people for money, material goods, and sexual favours in return for abortion-related healthcare, and to state violence against women accessing essential medical interventions.
Lest we consider that threats to bodily autonomy are a feature of life only across the Atlantic, we should remember that abortion rights are restricted or under threat worldwide. 92% of African women live in countries on the continent with highly or moderately restrictive abortion laws. In Poland, new restrictions which came into force last year banned terminations except for in the cases of sexual assault, incest, or risk to life, and in practice it is difficult for pregnant people in Poland to access care even under those circumstances. The first trial of a pro-choice activist under these new laws is underway as of April 2022, and the restrictions have been thrown into sharp relief by the struggles of Ukrainian refugees who have fled to Poland after experiencing wartime sexual violence. In the Republic of Ireland, despite the successful campaign for the repeal of the Eighth Amendment in 2019, people are still forced to travel for abortions due to lack of access to services. Here in the United Kingdom, government plans to rescind access to medical abortion at home in England were recently defeated, pregnant people in Northern Ireland still struggle to access abortion care two years after the legalization of abortion there, and a young woman in Oxford is due to stand trial in February 2023 under an 1861 law for ‘procuring’ her own abortion, with a maximum possible sentence of life imprisonment.
In this bleak context of threats and limitations to bodily autonomy, it is perhaps difficult to point to sources of hope. But, as Jenny Brown reminds us, looking to history can provide us with that too. As she writes, ‘massive feminist mobilizations, fuelled by…publicly discussing what was once secret and stigmatized…won us the abortion rights we have’. From the 1969 New York Redstockings Abortion Speakout, to the mutual aid organized by the Jane Collective in the four years before the Roe decision, to the more recent marea verde (green tide) protests in Argentina and other Latin American countries, the Polish women’s strikes in 2020-21, and the work of the Dutch NGO Women on Waves which provides abortion care in international waters for people from countries with restrictive abortion laws, collective organizing and mobilization remain our best hopes for retaining bodily autonomy, and point to the kinds of histories we should champion.
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Dr Rhian Keyse is a postdoctoral researcher on the SHaME project. She is a social and cultural historian of gender in modern Africa. Her doctoral research examined international, imperial, and local responses to forced and early marriage in British colonial Africa. Her current project examines the histories of medico-legal responses to sexual violence in (post)colonial Anglophone Africa, c.1920-1985, with a particular focus on Ghana and Kenya. Prior to joining the project, Rhian worked in the gender-based violence sector, most recently providing trauma support to homeless women with experiences of sexual violence.