Roe v. Wade and Beyond: Forty Years of Legal Abortion in the United States

Graphic by Imp Kerr

This January marked the fortieth anniversary of the Roe v. Wade decision that legalized abortion in the United States. In ways not anticipated by the coalition of physicians and feminist health activists who fought to legalize abortion in the years leading up to Roe, the abortion conflict remains the most divisive issue in American domestic politics. More than any other issue, the abortion war symbolizes the still contested concerns originally brought forward by second-wave feminists in the late 1960s—the changing relationship between the genders, the place of women in the public sphere, the legitimacy of sexual activity separated from procreation. What have been the benefits and costs of this landmark Supreme Court decision?

Impact on Women and their Families

From a public health standpoint, legal abortion has unquestionably benefited women and their families. Thousands of American women who sought abortions used to die before Roe, and now such women don’t. Though we will never know exact figures, estimates of the number of women who died annually from illegal abortion in the years before Roe range anywhere from one thousand to ten thousand. Many more women were injured, often losing their reproductive capacity. Immediately after Roe, death and injuries from abortion declined dramatically, and today, only a handful of women in the United States die each year from complications of legal abortion. American women are more than fourteen times more likely to die in childbirth than from a first trimester abortion. Though the anti-abortion movement has repeatedly claimed negative mental health effects of abortion, this charge has been decisively refuted by mental health experts who state that the best predictor of a woman’s mental health after an abortion is her mental health before the procedure.

Moreover, the presence of legal abortion has meant that millions of American women have been able to have the families they wished for, whether that meant delaying having children until a time that they could be adequately taken care of or forgoing childbearing altogether. An under-recognized benefit of abortion is that it has enabled child spacing, which has positive health benefits for both women and children. Coinciding as it did with the re-emergence of the women’s movement and the introduction of oral contraception (the “pill”), legal abortion was part of a package that helped facilitate the entrance of American women, in the 1970s and beyond, into various professions and occupations in unprecedented numbers. Given the profound racial and economic stratification that characterizes the United States, the presence of both effective contraception and legal abortion has helped some women far more than others—a point to which I will return.

Impact on Providers

The price paid for these improvements in women’s (and their families’) health and well-being has been considerable, and the abortion-providing community has paid most dearly. Eight members of this community (four physicians, two receptionists, a volunteer escort, and an off-duty police officer hired for clinic security) have been assassinated by anti-abortion terrorists. Thousands of other clinicians and clinic staff have been harassed and stalked, at their workplaces, homes, and places of worship. Protesters have shown up at the schools of providers’ children.

Given the profound racial and economic stratification that characterizes the United States, the presence of both effective contraception and legal abortion has helped some women far more than others.

Even when not faced with direct threats of violence, abortion provision is subject to a host of regulations on a scale that appears nowhere else in American medicine—and indeed would not be tolerated anywhere else in medicine. Among the most serious of the hundreds of laws have been so-called TRAP laws—Targeted Regulations of Abortion Providers—that can compel facilities to conform to the specifications of ambulatory surgery centers with regard to numerous physical features. These requirements are widely agreed to be irrelevant to abortion care and to have as their sole purpose the closing of clinics, which are often unable to afford such upgrades. A number of states have imposed bans on abortions after twenty weeks of gestation; only a small number of abortions are sought then, but such laws can be especially harrowing for parents in a situation where a woman is carrying a fetus that is expected to die a very painful death if the pregnancy is continued to term.

In twenty-three states, doctors or counselors are required by law to violate the most basic understanding of medical ethics by giving patients information that is blatantly untrue; for example, the alleged links between abortion and breast cancer, infertility, and suicide. At the same time, in Arizona, a law now in effect stipulates that a doctor cannot be sued for withholding information from a patient that might lead her to seek an abortion, such as evidence of a compromised fetus.

Beyond such a hostile regulatory climate, providers must contend with local environments that can make running a health care facility a logistical nightmare: for example, having to fly doctors in from out of town because no local physician will work there or being unable to secure necessary services because area businesses are threatened by boycotts by anti-abortionists. Before the late Dr. George Tiller of Kansas was slain in his church by an anti-abortion fanatic, his staff had to deal with the abrupt termination of businesses that had dealt with his clinic for years, including a local cab company, a pizza delivery service, a motel chain that had offered reduced rates to his out-of-town patients, and—most worrisome for daily clinic operations—a trash-hauling company.

In the face of such hostility, one can ask, why does anyone keep doing this work? In simplest terms, the social movement opposing abortion has helped create a counter-movement of physicians (today, mainly women) who view their work as a “mission” and not just a medical subspecialty. Interviews I have conducted over many years with this community reveal how deeply meaningful many clinicians (and their office staff) find this work, the obvious drawbacks notwithstanding. Many have spoken of the satisfaction of being able to help a woman solve a crisis at a particularly vulnerable time in her life. As one physician said to me, “You ask how I can do this work? For me, the question is, how could I not?”

A rare bright spot in the beleaguered world of abortion provision is that the longstanding problem of a provider shortage has eased somewhat. This is due in large part to two privately funded programs, one that supports abortion training in ob/gyn residencies and the other that offers a postgraduate fellowship in family planning and abortion. These programs have helped increase the presence of abortion-providing physicians in leading medical school faculties across the country—a sharp contrast to the situation in the first years after Roe, when mainstream medicine, though supportive of legal abortion, was far more equivocal about the abortion provider, due to the legacy of the “back-alley butcher” of the pre-Roe era.

But if an overall shortage of providers is no longer such a serious problem, the issue of access to abortion is. Abortion services tend to be clustered on each coast, and in large metropolitan areas in between. Several Midwestern and Southern states are down to one clinic, and women living in rural areas often have to drive for hours to reach a facility. The lack of accessible and affordable second trimester care is particularly acute. One out of three American women lives in counties without abortion services. Researchers estimate that in the thirty-two states where Medicaid funds are banned for abortions, approximately one-fourth of Medicaid recipients who would have had abortions if subsidized, gave birth instead.

Impact on American Political Culture

Beginning with the election of Ronald Reagan in 1980—for whom the recently mobilized anti-abortion movement had campaigned assiduously—the abortion issue has gradually reshaped American politics. Currently, abortion opponents make up the most significant element of the “base” of the Republican party, the attention paid to the Tea Party notwithstanding. The centrality of abortion activism to Republican electoral fortunes explains why a feature of Reagan’s administration, and every Republican administration since then, has been to apply the “abortion litmus test” not only to Supreme Court and other judicial nominees, but to various other appointments, even when blatantly irrelevant or when the nominees were clearly unqualified. As examples, consider that during the presidency of George W. Bush, applicants for positions in the Coalition Provision Authority in Iraq were queried as to their position on Roe, and the head of family planning programs under George H.W. Bush was quoted in the press as saying, “When it became possible for women to buy contraceptives…men lost their manhood.”

The political strength of the anti-abortion movement has also led to the elevation of “junk science” at the highest levels. Official government websites during the G.W. Bush years posted false information on the alleged abortion–breast cancer link, and millions of federal dollars were directed to abstinence-only sex education programs and “crisis pregnancy centers” that promoted numerous falsehoods about the dangers of abortion.

The abortion conflict has also introduced a disturbingly ugly element into political discourse. A current U.S. senator has called for the execution of abortion providers, and at least three states have introduced “justifiable homicide” laws—laws that are intended to cover killings committed in the defense of an “unborn child” but which have been interpreted by some law enforcement officials as legitimating the murder of providers. (None of these laws have passed to date.) After George Tiller’s murder, abortion rights supporters in the U.S. Senate were unable to pass a resolution condemning this act.

The ever-growing strength of abortion opponents as an electoral force explains the otherwise puzzling fact of why, after the 2010 elections—an election ostensibly about the economy—there was an unprecedented amount of abortion-related legislation in both Congress and the states.

The ever-growing strength of abortion opponents as an electoral force explains the otherwise puzzling fact of why, after the 2010 elections—an election ostensibly about the economy—there was an unprecedented amount of abortion-related legislation in both Congress and the states. A record ninety-two laws restricting abortion in various ways were passed by state legislatures in 2011, more than four times the number passed in the previous year. What is notable about the most recent legislation, apart from its sheer volume, is the increased misogyny it reveals in comparison to earlier anti-abortion measures. For example, the Orwellian-named Protect Life Act, passed by 251 members of Congress (mainly Republicans but some Democrats as well), stipulates that hospitals may refuse to offer abortions even in life-threatening situations and are not even required to provide referrals in such cases. (This Act has not been taken up by the Senate.)

Impact on Feminism

For the feminist movement as a whole, the need to defend Roe has inevitably meant a lessened focus on other items on the movement’s agenda. We might therefore think of the last forty years as a period of opportunities lost. The millions of hours and dollars spent on legal defense, clinic defense, mobilizing of voters, lobbying of friendly politicians, and so on have meant resources that were not available for other priorities of the movement, such as affordable quality child care, job training and equal pay issues, a more robust defense of welfare rights, and so on.

Moreover, the presence of legal abortion has seemingly not done much to change the situation of the most vulnerable women in American society. Currently, low-income women of color are significantly overrepresented in the pool of abortion recipients. This in turn reflects, among other factors, this group’s high rate of unplanned pregnancies and their difficulties in obtaining the most reliable (and more expensive) forms of birth control. Abortion, for those in this group able to afford it, has made often very difficult lives somewhat more manageable and helped them to better provide for the children they already have (61 percent of abortion recipients are already mothers) or hope to have at a later point. But the “severe poverty” rate (the number of households with income half of the official poverty threshold) has recently hit a record high in the United States—leading to the obvious conclusion that a far broader range of opportunities and services is needed to improve the status of these women and their families.

The Future of Legal Abortion: An Election Postscript

With the victory of Barack Obama in November 2012, abortion rights supporters breathed a collective sigh of relief, as the fate of Roe quite literally rested on the results of this election. Several Supreme Court vacancies are anticipated in the near future, and Obama will most certainly nominate those who can be expected to uphold this law (while his opponent made clear his intention, if elected, to do the opposite). As I write these words in the immediate aftermath of the election, it is clear that women’s votes—the fabled “gender gap”—played a significant role in Obama’s victory: the president won women voters by twelve percentage points, while Mitt Romney won men by eight, accounting for a twenty-point gender gap, the largest in history. With respect to reproductive issues, it is quite revealing to break down further Obama’s support among women. The president failed to gain a majority of white women as a whole; his record-breaking gender gap resulted from the votes of a huge portion of minority women; younger women, and an overwhelming “marriage gap,” as single women—a fourth of the electorate—gave 67 percent of their votes to the president. In short, Obama drew his strongest support among exactly those women most likely to need an abortion and publicly funded contraception.

Although it is difficult, at this point, to pinpoint the precise role that reproductive issues played in these women’s support of Obama—the economy was obviously of enormous concern—one likely reason for this gender gap was Obama’s artful presentation of his support of abortion and contraception as economic issues: in difficult times, women cannot take part in the paid economy or properly take care of the children they have if they cannot control their fertility.

But there is much reason to assume that abortion and contraception, in their own right, were significant factors in the election. Exit polling revealed stronger support for legal abortion than in many previous polls: 59 percent of the electorate as a whole said they wanted abortion to remain legal, while this position received even a higher number among Latinos (66 percent). The bizarre and offensive remarks about rape and abortion by congressional and senatorial candidates clearly cost Republicans several races, including two Senate seats they were expected to win. Furthermore, this election cycle saw far more prominent attacks on contraception by Republicans than in previous campaigns. Recall Mitt Romney’s promise to “get rid of Planned Parenthood” and conservatives’ hysteria about contraceptive coverage in the Affordable Care Act. If Republican Party hostility to birth control indeed proves to have been a driving force for women voters, this will have to be understood as a classic case of miscalculation, if not hubris, by the Party. Although even supporters of abortion express some ambivalence about it—and current estimates are that about one in three American women will have an abortion by age forty-five—contraceptive use at some point is virtually universal among heterosexually active women.

Further post-election analysis may also reveal how effectively, in this age of cable television and the Internet, the Democrats’ and their progressive allies’ accusation of a Republican “war on women” took hold among women voters. In addition, women may have responded not only to the national attention given to the rape issue mentioned above but to the similarly high visibility of laws mandating transvaginal ultrasounds for abortion recipients who are then forced to listen to a description of their fetus’s development; Rush Limbaugh’s savage verbal attack on a law student as a “slut” because she advocated for contraceptive coverage; and, of course, the contrast Obama skillfully drew between his signing of the Lily Ledbetter Act on equal pay for women and his opponent’s silence on that measure

Even with Obama’s victory, abortion care in the United States will remain precarious for the foreseeable future. While a Democratic Senate and the re-elected president’s veto will serve as a firewall against federal anti-abortion legislation, the most consequential abortion restrictions take place in the states. And until politicians find that it is no longer in their electoral interest to try to shut down abortion services, such efforts will continue. Despite Obama’s victory, conservative Republican candidates did very well in state elections. Indeed, in Ohio—where Obama won such a significant victory—state legislators announced, the day after the election, their intention to pursue a particularly controversial “fetal heartbeat” bill, a measure, if implemented, that would ban nearly all abortions in the state. In short, election losses can energize, and anti-abortion forces, especially at the state level, are not going away.

Because of the commitment of the provider community and the tireless efforts of pro-choice lawyers, some women, in some places beyond the liberal coasts and a few large metropolitan areas elsewhere, are still able to obtain abortions. But the harsh regulatory climate is taking its toll. Even if abortion remains technically legal, the United States may well return to the situation of the pre-Roe era, when women of means managed to get safe abortion care and poor women often did not.

In order to prevent this, in the short run the abortion rights community will no doubt step up its efforts with abortion assistance funds that will not only pay for abortions but for travel money to reach a facility. In the long run, the only route to addressing this disparity between poor and non-poor women is for abortion to become normalized within mainstream reproductive health care in the United States—a goal, some forty years after Roe, that remains elusive.

Carole Joffe is a professor at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, and her most recent book is Dispatches from the Abortion Wars: The Costs of Fanaticism to Doctors, Patients and the Rest of Us.