A ‘Fundamental’ Right: A Timeline of US Abortion Rights Since Roe v Wade

https://portside.org/2021-12-01/fundamental-right-timeline-us-abortion-rights-roe-v-wade

Portside Date: December 1, 2021

Author: Jessica Glenza

Date of source: December 1, 2021

The Guardian

Now, nearly five decades later, that right is under threat as the court prepares to hear oral arguments in a new case, Dobbs v Jackson Women’s Health Organization.

How could a decision that was not met with widespread protest at the time be under threat less than half a century later?

Over the years, a vocal minority of socially conservative Americans have steadily gained political power, passed many state-level challenges to the decision and, in some extreme cases, resorted to violence and intimidation in an attempt to reduce access to abortion.

Although six in 10 adults in the US say abortion should be legal in “all or most” circumstances, Congress has never enshrined the right to terminate a pregnancy in statute. That has left abortion access vulnerable during a period of sustained legal attacks during the Trump administration and led to the precarious position of abortion rights in the US today.

Here are some of the key moments in the almost 50 years that have passed since the Roe v Wade ruling.

1973

In a 7-2 decision, the all-male supreme court ruled that the constitution protects the right to an abortion. Justices found abortion was a “fundamental” right for a woman’s “life and future”, and that Texas had violated the rights of “Jane Roe” when an abortion ban prevented her from obtaining one.

“When the decision came down, we were elated,” said Eleanor Smeal, who was active in the feminist movement at the time and who is now president of the Feminist Majority Foundation. “It was a celebration, it was happiness, and people thought the fight was over – we won.”

“The movement wasn’t thinking of, ‘Oh my God, we’re going to have to fight to protect this,’” Smeal added. “We couldn’t imagine anyone would hammer away.”

The decision was preceded by decades of activism, with momentum decidedly on the side of those working to liberalize abortion laws. Constituencies as diverse as radical feminists, clergy and doctors came together to call for reform to criminal abortion laws.

“There was a big movement for legalizing abortion before the supreme court decision. I think people forget that,” Smeal said. “We talk about back-alley abortion but [women] were dying”.

People, especially those on low incomes, gained access to safe and legal abortion up to the point a fetus could survive outside the womb. Big-city hospitals shuttered “septic abortion” wards, where many poor people had died, infected and injured, from desperate attempts to end pregnancies.

People also gained access to abortion through Medicaid, a public health insurance program for low-income people and those living with disabilities. Abortion joined contraceptives, legalized for unmarried people just one year earlier, as a newly available method of family planning.

The anti-abortion movement as we know it today had yet to coalesce, but the stridently anti-abortion and anti-LGBTQ+ North Carolina US senator Jesse Helms did successfully pass the Helms amendment, which banned the use of foreign health aid to promote “abortion as a method of family planning” overseas. The amendment remains in effect.

Pro-choice demonstrators marching in Washington DC on 20 November 1970.

Pro-choice demonstrators marching in Washington DC on 20 November 1970. Photograph: Leif Skoogfors/Getty Images

Activists hold a series of signs that read ‘Legalize Abortion’ during a demonstration at New York City’s Rockefeller Center in March 1968.

Activists hold a series of signs that read ‘Legalize Abortion’ during a demonstration at New York City’s Rockefeller Center in March 1968. Photograph: Bev Grant/Getty Images

A patient is wheeled from the operating room to the recovery room at Parkmed, an abortion center that opened on 11 May 1971 in New York City.

A patient is wheeled from the operating room to the recovery room at Parkmed, an abortion center that opened on 11 May 1971 in New York City. Photograph: Bettmann Archive/Getty Images

Women filling out forms in a waiting room at the Women’s Medical Services abortion clinic in 1971.

Women fill out forms in a waiting room at the Women’s Medical Services abortion clinic in 1971. Photograph: Bettmann Archive/Getty Images

Associate Justice Harry Blackmun of the US Supreme Court who said that the abortion decision he wrote in 1973, Roe v Wade, “will be regarded as one of the worst mistakes in the court’s history or one of its greatest decisions, a turning point.”

Justice Harry Blackmun of the supreme court said that the abortion decision he wrote in 1973, Roe v Wade, ‘will be regarded as one of the worst mistakes in the court’s history or one of its greatest decisions, a turning point’. Photograph: Bettmann Archive/Getty Images

Protester holds up fist and sign says 'abortions are a right'

Protesters at a Republican party hearing. Photograph: Bettmann Archive/Getty Images

1976

The Hyde amendment, a temporary budget rider that barred Medicaid from paying for abortions, passed in the House of Representatives with a large majority. It was encouraged by Catholic bishops, and, unlike in today’s polarized environment, votes were not split strictly along party lines. More than 100 Democrats supported the measure, and 32 Republicans opposed it.

At the time, some representatives argued the Hyde amendment unfairly discriminated against poor people. The law, still in place, has made it far more difficult for low-income people to obtain abortions, often forcing them to pay hundreds of dollars for the procedure. Three-quarters of people who seek abortions in the US are low-income. The policy disproportionately affects people of color.

This period would represent a turning point in Republican politics. Republican political activists such as Phyllis Schlafly worked to bring together evangelicals and conservative Catholics by uniting them in concern about women’s changing place in society and how they would exercise new rights, such as abortion. Until then, legal abortion had been supported by many Republicans.

“Schlafly and her supporters argue that 1960s liberalism celebrates the individual and promotes the rights of the individual at the expense of the family and at the expense of a kind of moral order,” the Harvard historian Jill Lepore told On the Media. “Abortion becomes a linchpin” for this argument, she added.

The same year, the IRS revoked the tax-exempt status of Bob Jones University, a Christian college that defiantly refused to admit Black students on “religious liberty” grounds. The Dartmouth University religious history professor Randall Balmer argued this was an important moment in activating white evangelical protestant voters, or the “moral majority”, who would join many Catholic voters in being receptive to anti-abortion political messaging.

Evangelical opposition to abortion “was a kind of historical accident”, said Balmer, who details this history in his recent book Bad Faith: Race and the Rise of the Religious Right. “It allowed them to deflect attention away from the real narrative and to advocate on behalf of the fetus.”

Woman addresses crowd of reporters

Phyllis Schlafly addresses her supporters at a rally for and against the Equal Rights Amendment. Photograph: AP

A pro-choice rally in the 1980s.

A pro-choice rally in the 1980s. Photograph: Mariette Pathy Allen/Getty Images

1982

Pennsylvania passed among the most stringent abortion restrictions in the nation with the Abortion Control Act, which required minors to gain parental consent to obtain an abortion, imposed a 24-hour waiting period on women seeking abortions and required married women to notify their husbands if they were seeking an abortion.

Although it was not the first state or city to enact such impediments, it became the most significant, because its law survived a court challenge. The early 1980s also saw the rise of the religious right with the election of President Ronald Reagan, who voiced support for a constitutional amendment to ban abortion.

people point fingers at each other and yell

Pro-choice and anti-abortion protesters clash in a 1981 rally in front of Faneuil Hall in Boston, Massachusetts. Photograph: Boston Globe/Getty Images

main points at screen as woman looks on

Bernard Nathanson, a doctor who once performed abortions, uses an ultrasound to argue in 1984 that an unborn baby feels pain when it is aborted. Photograph: Fairfax Media Archives/Getty Images

Police load pro-life protesters into a van in Atlanta, Georgia, in August 1988.

Police load anti-abortion protesters into a van in Atlanta, Georgia, in August 1988. Photograph: Bettmann Archive/Getty Images

Norma McCorvey – aka Jane Roe in the Roe v Wade case – hugs her daughter Cheryl while holding her baby granddaughter outside at hotel.

Norma McCorvey – AKA Jane Roe in the Roe v Wade case – hugs her daughter Cheryl while holding her baby granddaughter outside at hotel. Photograph: Mark Perlstein/Getty Images

1992

Litigation against Pennsylvania’s Abortion Control Act reached the supreme court in a case called Planned Parenthood v Casey. The court upheld the essential ruling in Roe v Wade but allowed states to pass more abortion restrictions as long as they did not pose an “undue burden”.

The decision ushered in a new era of anti-abortion restrictions, which would come to be known as Trap laws, referring to targeted regulation of abortion providers. States passed hundreds of expensive and burdensome restrictions, often in an effort to test the constitutional limits of the court’s new ruling.

The same year, President Bill Clinton said abortion should be “safe, legal and rare”, a phrase later seen as a symbol of the Democratic party’s acceptance of the idea that abortion was shameful.

A person is dressed as the grim reaper while others hold signs saying 'Naples pro-life council'

Anti-abortion marchers amass in front of the supreme court in Washington on 22 January 1991 on the 18th anniversary of the court’s Roe v Wade decision. Photograph: Steve Helber/AP

Then-Democratic presidential candidate Bill Clinton escorted by US secret service agents in July 1992 after an anti-abortion protester moved towards the Arkansas governor during a Ohio rally.

The then Democratic presidential candidate Bill Clinton is escorted by US secret service agents in July 1992 after an anti-abortion protester moved towards the Arkansas governor during an Ohio rally. Photograph: Tim Clary/AFP/Getty Images

huge crowd with washington monument in the background

The 1992 March for Women’s Lives in Washington DC, held as a response to the then pending supreme court case Casey v Planned Parenthood, which was seen as a threat to Roe v Wade. Photograph: Mark Reinstein/Getty Images

1993

Even as Casey ushered in a new era of incremental abortion restrictions and abortion access dwindled, anti-abortion zealots saw the case as a loss. Frustrated, some turned to violence and intimidation, organizing blockades of clinics. Their tactics culminated in the assassination of Dr David Gunn, who was shot dead outside an abortion clinic in Pensacola, Florida. Eleven people have been murdered as a result of attacks on abortion providers since 1977.

“Anti-abortion forces got very extreme in the 1980s and 90s,” said Laura Briggs, author of How All Politics Became Reproductive Politics: from Welfare Reform to Foreclosure to Trump. “First they started bombing clinics and murdering providers, and formed the nucleus of the alt-right that we’re now living with as white nationalists.”

Rita Gunn (center), ex-wife of murdered obstetrician Dr David Gunn, stands over his casket during his funeral.

Rita Gunn, center, ex-wife of Dr David Gunn, stands over his casket during his funeral. Photograph: Thomas S England/Getty Images

Photo of a printed photo of Dr David Gunn

Dr David Gunn. Photograph: Ralf-Finn Hestoft/Corbis/Getty Images

A group of women on the steps of the supreme court protest after the murder of Dr David Gunn.

A group of women on the steps of the supreme court protest after the murder of Dr David Gunn. Photograph: Jeffrey Markowitz/Sygma/Getty Images

1994

Two Planned Parenthood receptionists, Shannon Lowney, 25, and Leanne Nichols, 38, were killed and five more people injured at separate shootings by the same perpetrator in suburban Boston. The same year, Dr John Bayard Britton, 69, and James Barrett, 74, a clinic security volunteer, were shot and killed by an anti-abortion extremist outside another Pensacola clinic.

James Barrett and his wife, June.

James Barrett and his wife, June. Photograph: Gregory Smith/Corbis/Getty Images

police set up police tape while sign on the ground says 'disobey unjust laws'

Police in Pensacola, Florida, set up a barricade to investigate the murders of Dr John Britton and James Barrett at a local abortion clinic. Photograph: Gregory Smith/Corbis/Getty Images

Supporters of Paul Hill pray for him prior to his execution outside of Florida state prison in 2003. Hill was executed for the 1994 killings of Britton and Barrett.

Supporters of Paul Hill pray for him prior to his execution outside of Florida state prison in 2003. Hill was executed for the 1994 killings of Britton and Barrett. Photograph: Scott Audette/AP

1998

A Canadian man shot Dr Barnett Slepian – a Buffalo, New York, abortion provider – through his kitchen window with a high-powered rifle. The perpetrator remained free for five years before he was apprehended.

The same year, a nail bomb exploded outside a Birmingham, Alabama, abortion clinic, killing an off-duty police officer, Robert Sanderson. The man responsible, Eric Rudolph, eventually pleaded guilty to the 1996 bombing of the Atlanta Olympics, as well as bombings at two more abortion clinics and a gay bar.

Dr Barnett Slepian and his family

Dr Barnett Slepian and his family. Photograph: Getty Images

Law enforcement agents from the FBI and the Bureau of Alcohol, Tobacco and Firearms search the ground outside the New Woman All Women healthcare clinic in Birmingham, Alabama, in 1998 after a bomb exploded outside the clinic.

2000

The FDA approved the drug mifepristone – the first pill available to end a pregnancy early in gestation. In the coming decades, the drug proved extremely safe and effective, and was used by millions. By 2017, mifepristone accounted for 39% of all abortions.

However, it also became the target of attacks and disinformation. Some states required a doctor to be in the room when dispensing the medication, effectively banning telemedicine abortions. In others, anti-science disinformation about the ability to “reverse” a medication abortion was allowed to flourish.

A bottle and two pills of mifepristone.

A bottle and two pills of mifepristone. Photograph: Frances Roberts/Alamy

2007

The supreme court upheld a federal ban on dilation and extraction, a procedure opponents call “partial birth abortion”. In a 5-4 decision, the court ruled a ban on the procedure was constitutional, even though it was designed to lead to fewer complications for pregnant people. The decision weakened Roe, which held that a pregnant person’s health should be paramount.

people hold hands in a circle near a cross

About a dozen abortion opponents gather in front of Dr George Tiller’s clinic in Wichita, Kansas, in 2007. Two years later, Tiller was killed. Photograph: Larry W Smith/AP

2009

Dr George Tiller was shot and killed in the entrance of his church in Wichita, Kansas, by an anti-abortion extremist. Tiller was one of the few abortion providers in the country willing to perform the procedure late in pregnancy.

A mourner wearing a button showing George Tiller.

A mourner wearing a button showing George Tiller. Photograph: Sipa US/Alamy

2013

Texas passed a law that required abortion providers to have “admitting privileges” at local hospitals. The requirement proved impossible for many doctors to meet, shut down dozens of clinics in Texas, and was then replicated by other states. The midwest and south became the epicenters of anti-abortion legislation.

The same year, North Dakota passed the nation’s first “heartbeat bill”, a ban on abortion after roughly six weeks. That is before most people know they are pregnant and before the vast majority of abortions take place.

At the time it was passed, mainstream anti-abortion activists believed it was too extreme and would only serve to bolster Roe.

An anti-abortion protester, Katherine Aguilar, holds a crucifix and prays while opponents and supporters of abortion rights gather in the Texas state capitol in July 2013.

An anti-abortion protester, Katherine Aguilar, holds a crucifix and prays while opponents and supporters of abortion rights gather in the Texas state capitol in July 2013. Photograph: Tamir Kalifa/AP

person on the ground among the feet of officers

A bloodied abortion rights protester is surrounded by Texas state troopers outside the Senate chamber in Austin, Texas, on 13 July 2013. Photograph: Eric Gay/AP

A pro-choice activist walks past pro-life activists during a protest outside Planned Parenthood January 24, 2013 in Washington DC.

A pro-choice activist walks past anti-abortion activists during a protest outside Planned Parenthood on 24 January 2013. Photograph: Brendan Smialowski/AFP/Getty Images

2015

A man opened fire at a Colorado Springs Planned Parenthood, killing three people and wounding nine more. His victims were later identified as Jennifer Markovsky, 35; Ke’Arre Stewart, 29; and Garrett Swasey, 44.

The same year, the supreme court struck down Texas’s “admitting privileges” law in a 5-3 decision, ruling the burdens placed on people were unconstitutional. Nevertheless, the damage was done – most of the clinics that closed when Texas enacted the law remain shuttered.

People hold their heads and look down

People attend a vigil held on the University of Colorado-Colorado Springs’ campus for those killed in a deadly shooting at a Planned Parenthood clinic on 28 November 2015. Photograph: David Zalubowski/AP

2016

Donald Trump was elected president. Running as a Republican on the campaign trail, he said people who had abortions should be punished and promised to appoint supreme court justices to “automatically” overturn Roe. He was carried to victory with strong support from the religious right. Trump confirmed three justices to the court during his term in office – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – giving conservatives a 6-3 super-majority.

crowd looks dismayed behind american flag bunting

Supporters of Hillary Clinton in New York City’s Javits Center react after hearing she lost the election to Donald Trump. Photograph: Elsa/Getty Images

2019

Several more states passed so-called “heartbeat bills” – including Ohio and Georgia – even though the laws were blatantly unconstitutional and were blocked by courts. The author of the bills is an anti-LGBTQ+ conspiracy theorist whom anti-abortion activists once considered too extreme, but who found new purchase in the Trump era.

Emboldened by Trump, the anti-abortion movement sees more grassroots efforts to outlaw abortion entirely. New York and Illinois expand abortion rights in response to near constant attacks in other states and from the Trump administration.

Protesters dressed like characters from the novel The Handmaid’s Tale march down Bourbon Street in New Orleans, Louisiana, on 25 May 2019 to protest a proposed bill that would ban abortion after six weeks.

2020

The Covid-19 pandemic hit, and much of normal life came to a standstill. Hospitals and clinics across the country suspended normal operations. Ten states attempted to restrict abortion as a “nonessential” service. Courts intervened and many restrictions were lifted, though many measures had already sown confusion.

The same year, Justice Ruth Bader Ginsburg, hailed by some as the court’s greatest champion of reproductive health and freedom, died at age 87. The Trump administration quickly confirmed her successor – Barrett.

The flag-draped casket of the late Associate Justice Ruth Bader Ginsburg in Statuary Hall of the US Capitol on 25 September 2020.

The flag-draped casket of the late Justice Ruth Bader Ginsburg in Statuary Hall of the US Capitol on 25 September 2020. Photograph: Getty Images

person holds sign calling for the seating of Barrett while another person is dressed as trump as a baby

Protesters for and against the confirmation of Amy Coney Barrett demonstrate in front of the court on 26 October 2020. Photograph: Bill Clark/CQ-Roll Call, Inc/Getty Images

people wear red tape with the word "life" over their mouths

Anti-abortion activists protest outside the supreme court on 4 March 2020, as the court hears oral arguments on a Louisiana law about abortion access. Photograph: Caroline Brehman/CQ-Roll Call, Inc/Getty Images

2021

By May, the supreme court agreed to consider Dobbs v Jackson Women’s Health Organization, alarming activists who worry the case could be used to significantly weaken the right to abortion.

The case focuses on whether Mississippi can outlaw most abortions at 15 weeks, a direct challenge to Roe, which provides a right to abortion up to the point the fetus can live outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is 39 weeks.

By mid-year, 2021 has already become the most hostile year for abortion rights legislation on record, with more than 90 restrictions put in place by states. In July, attorneys for Mississippi asked the court to use the Dobbs case to overturn Roe v Wade, and called the 1973 decision one which has “poisoned our national discourse” and “plagued the law”.

By September, the supreme court had let Texas’s six-week abortion ban go into effect while it was litigated, halting the vast majority of abortions in the country’s second-biggest state. Experts called Roe v Wade a “dessicated husk” of a ruling.

The court shocked observers again in September, when it allowed Texas to implement a six-week abortion ban. In effect, Texas nullifies the constitutional rights granted by Roe v Wade within its borders.

If the Mississippi case leads to the fall of Roe v Wade when the court issues its decision in 2022, and abortion restrictions are left to the states, more than half would be likely to move to again make the procedure illegal.

Dr Wendy Chavkin, a special lecturer in population and family health and clinical obstetrics and gynecology at Columbia University who helped found Global Doctors for Choice, said such a decisionwould set the US back decades.

“If this thing goes wrong, we’re bucking the historic tide” of liberalizing abortion laws globally, said Chavkin. “It’ll be like some of those decisions that the US is – embarrassed is an inadequate word – but profoundly embarrassed by for years and we’ll have a lot of trouble ameliorating the harms that will result.”

Protesters at the Women’s March and Rally for Abortion Justice at the State Capitol in Austin, Texas, on 2 October 2021.

Protesters at the Women’s March and Rally for Abortion Justice at the state capitol in Austin, Texas, on 2 October 2021. Photograph: Sergio Flores/AFP/Getty Images

An anti-abortion activist holds a petition to end abortion during a demonstration outside of the Supreme Court on 4 October 2021 in Washington DC.

An anti-abortion activist holds a petition to end abortion during a demonstration outside of the supreme court on 4 October 2021. Photograph: Kevin Dietsch/Getty Images

People hold signs saying 'keep your laws off our bodies' and 'let their hearts beat'

Pro-choice and anti-abortion protesters gather outside the supreme court on the first day of arguments over the Texas abortion law on 1 November 2021. Photograph: Getty Images