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The Limits of Law in the American Reproductive Freedom Movement

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A Thesis

Presented to

The Honors Tutorial College

Ohio University

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In Partial Fulfillment of the Requirements for Graduation from the Honors Tutorial College with the degree of

Bachelor of Arts in Political Science

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By

Madeline Geiser

April 2020 2

This thesis has been approved by

The Honors Tutorial College and the Department of Political Science

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Dr. Jennifer Fredette Professor, Political Science Thesis Advisor

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Dr. Andrew Ross Director of Studies, Political Science

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Dr. Donal Skinner Dean, Honors Tutorial College 3

Table of Contents

Introduction ...... 4

Chapter 1: Reproductive Freedom and Social Movements ...... 11

Chapter 2: Reproductive and the Law ...... 25

Chapter 3: Limits of Law in the Movement ...... 38

Conclusion ...... 54

References...... 59 4

Introduction

In American politics, women have been denied control of their own reproduction abilities. Since the beginnings of the movement in the early 1900s, activists have been met with resistance from society and governing bodies. This movement, led by people like and , slowly expanded women’s reproductive equality throughout the twentieth century. Through these efforts, women in the have helped normalize , aid in the distribution of contraception, and equalize opportunity in the workplace.

However, movement leaders have been fixated on the right to abortion ever since the nationwide legalization of birth control in the 1970s. As the right to terminate a became the sole focus of mainstream reproductive freedom efforts, it also became a focal point for the opposition. In 1973, these two rival schools of thought faced one another in the Supreme Court during Roe v. Wade, which ultimately decided that women have a constitutionally protected right to abortion. Today, political discussion about women’s bodies is largely framed by the pro-choice versus pro-life debate. Roe v.

Wade was decided nearly fifty years ago but is currently at risk of being overturned.

Candidates disputed the fate of Roe v. Wade throughout the presidential debates of 2016, and President Donald Trump even declared that he aimed to appoint justices who would overturn the precedent. The right to abortion is the concentration of reproductive freedom and bodily autonomy conflicts.

In this thesis, I argue that reproductive freedom movements in America are incomplete. An ill-founded overreliance on the Court to remedy social injustice and the 5 narrow focus on abortion has been detrimental to women’s struggles for equal bodily autonomy. By prioritizing speed over substance, both social movements and judicial campaigns have marginalized oppressed groups. Black women, poor women, and underage women have been denied equal access to contraception and abortion. Pursuing a rights-based campaign for abortion and birth control has been detrimental for female bodily autonomy struggles in the long-term. By adopting a juricentric approach, these movements have effectively denied women equal protection and access to reproductive freedom.

There are several flaws behind a juricentric campaign for social justice. First and foremost, caselaw is not meant to be flexible for growth within a changing society.

Obviously, justices who decided Roe v. Wade could not have foreseen specific developments, such as the changes in viability, nor were they meant to do so. Court rulings address much more specific scenarios and are not intended to fix social injustices in permanent ways. They are reactive by nature and cannot account for complex shifts in society that change the circumstances of laws.

Secondly, the Courts themselves cannot enforce their rulings, making these rulings a poor choice for solving social inequalities. Supreme Court rulings require a willing legislature and cooperative population in order to enact their decisions. Although the promise of Roe v. Wade was the constitutional protection of the right to abortion for all women, it fell woefully short. In the wake of the decision, conservatives in both federal and state legislatures spent the next several decades rolling back the provisions of

Roe v. Wade. Conservatives throughout the nation have passed laws that restrict the window within which women can obtain an abortion, require waiting periods before 6 women can receive the procedure, and deny funding to places that may provide

(, 2020). By relying on Supreme Court rulings to remedy social injustices, advocates put an unwarranted amount of faith in the strength and stability of caselaw. This misplaced faith has been detrimental to the progress and expansion of women’s bodily autonomy and reproductive freedom.

Additionally, caselaw is not able to account for scientific progress. The science of abortion is changing. Roe v. Wade was written with a trimester framework that limits the legality of abortion in the last two stages of pregnancy. Due to scientific progress, abortions are now much safer in the third trimester than they were during the time Roe v.

Wade was argued. Additionally, are viable much earlier into pregnancy than they were in 1973. Because of these changes in technology and medicine, Roe v. Wade has become vulnerable. As Roe v. Wade grows older and more obsolete, conservative politicians and justices who seek reversal gain ammunition beyond pro-life arguments supporting a reversal.

By rallying support for cases like Roe v. Wade and others that protect a to abortion, pro-choice activists promote the idea that courts are the salvation for their cause. Reproductive choice advocates have directed the attention of the public to the courts in the hopes of securing caselaw that will protect a woman’s right to an abortion. Unfortunately, this means that abortion politics have taken the focus away from broader efforts for women’s liberation and reproductive freedom, such as equal treatment in the workplace, access to education, and ending rape culture. Furthermore, mainstream reproductive movements have decided that policy reform and Supreme Court cases are the most effective ways to protect women’s rights. This becomes a dangerous 7 strategy when the Supreme Court is dominated by conservative justices. However, access to safe, affordable abortion for all women steadily progressed through the twentieth century despite these limitations.

Beginning with Griswold v. (1965), the Supreme Court recognized an implicit right to privacy. This right based on the first, fourth, fifth, ninth, and fourteenth amendments, was believed to protect a married couple’s ability to privately plan their own , which included a married woman’s right to birth control. In 1972, Eisenstadt v. Baird decided that this right to privacy extended to single women and their birth control needs. The right to privacy on which abortion is founded is not explicit in the

Constitution, but has been valued historically in the Court regarding other reproduction cases like Griswold v. Connecticut (1965), Planned Parenthood v. Casey (1992), and Roe v. Wade. These cases, among others, have created a thread in Supreme Court jurisprudence that protects an implicit right to privacy.

Eventually, Roe v. Wade took this right to a new level, claiming that the implicit right to privacy in the also includes a right to abortion. Although there is legal precedent to support an implied right to privacy, no case prior to Roe v. Wade has gone so far as to claim one has the right to abort a pregnancy. Previous cases have said that women can prevent and that this should remain a private issue for themselves to sort out, but Roe v. Wade extended this right further. Despite these apparent pro-choice successes, Supreme Court victories are not the complete solution to abortion access, nor are they the solution to remedying other reproductive freedom injustices. 8

This narrow focus on law and the Supreme Court has been detrimental to the cause of reproductive freedom. As law and society scholar Rosenberg (2008) argues, “It is a hollow hope that law and policy reform will remedy social injustices” (Rosenberg,

2008). By relying too heavily on the Court and the promise of policy reform, the reproductive freedom movement has largely failed the women of America. The right to abortion is incompletely protected by the law and has faced decades of attack from pro- life believers. Not only does the movement rely too narrowly on the Courts to ensure reproductive freedom, but they also focus too exclusively on the issue of abortion to fix the majority of issues surrounding female inequality. Because of these limits and false hopes in institutional reforms, the future of reproductive freedom remains unsettled.

More than that, however, the reproductive freedom movement in America fails to address societal and racial inequalities among women. Legislators have been undermining Roe v.

Wade with policies that allow for only one abortion clinic in a state, charge several hundred dollars for procedures, and prevent doctors from even providing women with medical information about their pregnancy options (Planned Parenthood, 2020).

Reproductive choice advocates have lost control of their own movements and have allowed conservative policymakers to shape the agenda. Pro-life and pro-choice movements sprung up partly as a result of Roe v. Wade and have controlled conversation ever since (Greenhouse, 2011). If the goal of these movements is women’s liberation, then abortion discourse should be about female bodily autonomy. Instead, conversations are focused on the autonomy of a potential life she may create, and the morality associated with ending that life. The issues of bodily autonomy for women have become completely dependent on the right to abortion, which is but one aspect of the overall 9 picture. Roe v. Wade has become an all-encompassing goliath that still dominates reproductive freedom debates decades after it was decided. In its wake, reproductive choice advocates, like Planned Parenthood, have been tainted with the social stigma associated with abortions. People on either side of the issue are upset by the shortcomings of Roe v. Wade.

These movements also failed to include marginalized groups in their fight for change, prioritizing the agendas and interests of white wealthy women. Before pro-choice ideals entered mainstream discourse in the years preceding Roe v. Wade, abortion was viewed differently by women of color (Lynxwiler, 1996). African American birth rates were limited during times of population growth in a post-World War II America because

White communities did not want Black children, so doctors were more likely to provide abortions or even forced sterilizations for black women (Solinger, 2019). Considering these different experiences with medicine and the law, the right to abortion may not be equally attractive to women of color. Failure to consider the interest of historically marginalized groups and failure to address the intersectionality of the issue has ultimately led to the detrimental shortcomings of the movement as a whole.

Roe v. Wade has sparked significant controversy and backlash from both the public as well as the conservative congress who has made it nearly impossible for women to explore their pregnancy termination options. However, reproductive freedom rights have been controversial well before advocates turned to the courts (Greenhouse, 2011).

By pursuing law as a means to ensure female bodily autonomy through abortion, reproductive freedom advocates have created new problems for women, and have ignored the problems in underprivileged communities and minorities. Roe v. Wade and its related 10 court cases have worsened the social stigmas associated with abortions and allowed the federal and state governments to regulate abortions into nonexistence.

In this thesis, I will address the fatal missteps of the reproductive freedom movements in America. I will examine the , sex education, and abortion access struggles and the legal battles paralleled in the Courts. I will argue that pro-choice advocates discarded the interests of those who might undermine their rights claims in order to be successful in the eyes of law, and to win a court case. I will show how an over-reliance on the Supreme Court and the narrow focus on the right to abortion has led to fragile and incomplete female bodily autonomy progress. Because the Courts are not equipped to enforce their rulings, a caselaw derived from a juricentric approach cannot match the will of the people or conservative policymakers. By channeling the focus of women’s liberation movements to a single right to abortion, all other aspects of reproductive freedom and bodily autonomy fell to the wayside. Not only have these shortcomings from the movement and from the Courts left the right to abortion vulnerable, they have also threatened decades of feminist efforts for bodily autonomy for all women.

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Chapter 1- Reproductive Freedom and Social Movements

In the early 1900s, feminists did not focus on a woman’s right to abort her unwanted pregnancy; instead, they advocated for educating women about contraception and sexual health. Margaret Sanger was the primary leader of this movement. Because of her work developing and promoting the birth control pill and sexual health clinics, she was one of the most influential pioneers in the progression of , sexual education, and women’s rights to contraception (Wardell, 1980). Sanger saw the strain repeated unplanned pregnancies put on her large family. She witnessed the toll eighteen pregnancies took on her mother, who passed away in her forties (Bagge, 2017). Sanger’s early career as a nurse also exposed her to the problems many women face when they are undesirably pregnant. Women who kept getting pregnant without the means to support another child in the close quarters of City apartments were desperate to control their pregnancies.

Sanger worked closely with women living in poverty during her time as a practicing nurse (Baker, 2011). Due to their lack of access to sexual health education and their limited income, poor women resorted to unsafe methods of abortion when they could not prevent pregnancies with contraception. Sanger’s most iconic example of the horrors she witnessed comes from her treatment, or lack thereof, of Sadie Sachs (Baker,

2011). Sanger was treating Sachs for an attempted at-home abortion when Sachs pleaded with the supervising physician for a way to prevented unwanted pregnancies. She recognized that unwanted children and risky self-inflicted abortions were not problems for wealthy women and wanted to know how they were able to control their pregnancies.

According to Sanger, the doctor advised Sachs to practice , famously stating 12

“Tell Jake to sleep on the roof” (Baker, 2011, p. 41). Clearly, this was not a realistic solution to Sachs’s problem. When Sanger returned to the Sachs home a few months later, after another self-inflicted abortion attempt, Sadie Sachs was beyond saving and passed away (Wardell, 1980). Sanger claims this to be the moment she decided no women would ever again be the victims of unsafe abortions. In her autobiography, she wrote, “It was the dawn of a new day in my life ... I knew I could not go back merely to keeping people alive” (Wardell, 1980, p. 738). After the Sadie Sachs incident, Sanger knew she must abandon the palliative treatment of individual women and begin addressing the issue community-wide (Baker, 2011).

Sanger realized that women’s lack of knowledge concerning their own anatomy and sexual health was a huge contributing factor to the large number of unwanted pregnancies in the slums of New York City. Sanger recognized that male doctors- who made up the vast majority of the medical profession- were not willing to address the concerns of women who wanted to plan their . According to these doctors, the women’s reproductive troubles were not a threat to public health. Much like the rest of society at the time, doctors were opposed to birth control and saw artificial contraception as frivolous (Baker, 2011). In her eyes and the eyes of her followers, the solution to this problem was providing reproduction education resources for women. Sanger believed that the most direct way to attack this issue was to contest Comstock censorship laws.

Pioneered by , these series of regulations prohibited any obscene material from being distributed through the United States Postal Service, including Sanger’s sexual health pamphlets and birth control materials. Under the

Comstock Act, which was less colloquially known as “The Act for the Suppression of 13

Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use,” it was a federal to send , devices, sexually explicit books, information on abortion or birth control, or the contraception devices themselves through the United States Postal Service (Kelly, 1998). This posed a significant barrier for Sanger and her work. Although distribution of educational pamphlets and contraceptives was illegal, Sanger was determined to forge ahead for the sake of women’s bodily autonomy.

Refusing to accept the restrictions these laws placed on her work, Sanger began to print her extremely controversial magazine, “The Woman Rebel,” in secret and to distribute it disguised with other newspapers and misleading packaging. Her 1914 book

Family Limitation, also in violation of Comstock law, advocated for birth control and healthier sexual practices for both married and unmarried men and women (Bagge,

2016). Due to the discussion of male and female sex organs, explicit language, and anatomical images of genitalia, Sanger was arrested and forced to present her defense before court (Wardell, 1980). Finally, she had an opportunity to challenge the and to publicly advocate for her views of reproductive and sexual freedom. Sanger used her court appearance to publicize birth control, pressure legislators to repeal

Comstock laws, and to establish herself as the leader of the new birth control movement

(Baker, 2011).

In 1916, Sanger founded the first birth control clinic for women in the country in

Brooklyn, New York (Lepore, 2011). She provided hundreds of women with reproductive information and spread the new term, “birth control,” that she created in her earlier pamphlets. Sanger clashed with the law several times, yet she stayed true to her beliefs that women had a right to control their own reproduction. Her constant arrests, 14 trials, and time in prison drew significant national attention towards the birth control movement (Baker, 2011). Word of Sanger’s activism mobilized women across the nation to stand up for their .

After years of protest and defiance from Sanger and her followers, a New York judge amended one of the Comstock laws, now allowing doctors to send information regarding contraceptives in the federal mail (Kelly, 1998). This was only a partial victory, but it began to move the legal system in the direction of progress and allowed women to take the matter of their sexual health and right to planned pregnancies into their own hands (Solinger, 2019).

Sanger continued her efforts of lobbying legislatures to reconsider censorship laws and restrictions on birth control and access to contraceptives. In order to contest these laws, Sanger ordered a diaphragm from Japan through the mail, creating the opportunity for a test case to challenge the laws (Lepore, 2011). In 1936, this case, known as U.S. v. One Package of Japanese , was quickly brought before the courts, who ultimately ruled in favor of Sanger, therefore removing contraception from the category of (Lepore, 2011). The last of the Comstock laws were dismantled soon after, finally allowing the medical use of contraceptives by licensed physicians and the distribution of sexual education materials (Wardell, 1980).

Although the medical approach to contraceptives successfully legalized the distribution of birth control, it did little for the sexual liberation of women. By presenting unwanted pregnancies as an economic and health disadvantage to all of society, the medical approach fails to separate women’s sexual desires from procreation, therefore perpetuating the notion that a woman’s sexuality is nonexistent and the only reason for 15 her to have sex is to have children. Additionally, women were not the ones leading the movement because they were not part of the medical community. Reproductive health narratives from women must be the driving force of these movements so they can claim ownership of the issues and determine their direction. In order for the reproductive freedom movement to forge the path for women’s liberation, , not medicine, must be the foundation of the revolution.

Allowing doctors alone to distribute contraceptive information was not the sexual liberation goal Sanger was working towards, but it was a step in the right direction nonetheless. In 1914, Sanger wrote:

A woman’s body belongs to herself alone. It does not belong to the United

States of America or any other government on the face of the earth . . . Enforced

motherhood is the most complete denial of a woman’s right to liberty. (Baker,

2011, p. 75)

Sanger recognized that birth control is directly tied to bodily autonomy for women.

Without complete individual ownership of reproductive choice, women cannot be equal participants in society. By denying women the right and ability to decide for themselves when and if they shall reproduce, the American government enslaved women to their identities as mothers. In order to allow women to participate in society unencumbered by the threat of unwanted pregnancy, birth control must be made available and accessible for all. Thanks to the efforts of Sanger and her supporters, women have been granted the right to contraception. However, the set of rights that guarantee reproductive freedom for women would be incomplete without the right to terminate unwanted pregnancies. 16

Today, abortion has become the final frontier of reproductive freedom and bodily autonomy for women. Margaret Sanger pioneered the modern birth control movement and forged the path of reproductive freedom that many have followed since her. This path led to the dismantling of censorship law, the free distribution of contraception, and the expansion of sexual health education. However, Sanger was not a champion of abortion rights. She believed that they were important, but that abortion was undesirable and could be prevented by proper access to birth control (Baker, 2011). Abortion was treated as a separate issue, and was progressing in the law and society at a much different pace than birth control.

In the early 1900s, abortion laws, which were consistent from state to state, limited the practice to only those cases in which the mother’s life was at stake (Solinger,

2019). Up until this point, society seemed to generally agree on abortions- they are morally wrong and should only be legal in the most extreme medical situations where the mother’s life was at risk (Reagan, 1997). However, in the 1930s, doctors began to suggest that fetuses had a relative , not an absolute right. Biologically, fetuses were recognized to be fully human, but without a completely inalienable right to life, especially considering the impact its existence had on the mother (Williams, 2013).

Due to the increased liberation of women in the workforce as a result of the war and the Great Depression, their role in society was brought into question (Solinger,

2019). As women developed careers, moved into cities, and became more independent members of society, they were susceptible to more and more moral regulation from the government. The anonymity of city life allowed women to be free from the prying eyes of neighbors and the community, but also raised questions about their newfound sexual 17 liberties (Gordon, 2007). Many conservative reformers at the time were concerned that the low wages unmarried women earned in urban jobs would drive them to turn to prostitution in order to make ends meet (Solinger, 2019). Instead of raising wages and providing women with the means to support themselves, conservative policymakers encouraged women to behave morally, especially regarding sexual activity. These attitudes directed at policing the role of women in society and female sexuality made one idea plainly clear; “Women were suspect, mothers were sacred” (Solinger, 2019, p. 68).

Despite the efforts of Sanger, doctors, and other progressive thinkers, lawmakers were determined to control women’s bodies.

During the Great Depression, laws were directed at facilitating economic growth and promoting business. In order to assist families with meager income, the federal government established its welfare system known as the Aid to Dependent Children program (Solinger, 2019). One might assume that, while resources were scarce and family incomes were stretched thin, lawmakers would prioritize family-planning efforts.

However, this was not the case. Single mothers were often denied welfare and childcare services due to their lack of perceived moral purity (Gordon, 2007). Welfare and government assistance were exclusively reserved for mothers who were married, did not work outside their home, and were white (Solinger, 2019). After America joined World

War II and women filled the jobs abandoned by soldiers, policymakers’ concern turned towards working women neglecting their children. Welfare was granted to morally upright married white women because the government wanted to keep these mothers at home to provide proper care for their valuable white legitimate children. Single mothers 18 and mothers of color were denied welfare in order to fill factory jobs with a perceived lower-class of mother (Solinger, 2019).

By providing government assistance to only a specific type of woman, policymakers effectively legislated their idea of womanhood. In order to receive financial aid, women had to meet the criteria provided by the government. Individual expression of femininity was determined by a woman’s financial standing and her status of motherhood. As World War II continued, the role of women shifted based on the needs of industry. Women who no longer fit the particular idea of womanhood promoted by policy challenged these misogynistic ideals by their employment in factories (Solinger, 2019).

When the war eventually ended, women were displaced from the workforce but maintained the rebellious spirit of wartime efforts. After World War II, Margaret Sanger capitalized on the needs of these newly empowered women.

In 1942, Sanger’s American Birth Control League was renamed to Planned

Parenthood. This nonprofit organization operates over six-hundred health clinics in the

United States and has been providing both men and women with free sexually transmitted disease screening, reproductive health education, and family-planning services for over one-hundred years (Planned Parenthood, 2019). Around the time of this rebranding, women’s need for pregnancy control and contraception increased due the return of soldiers who had been at war. During the post-war baby boom, doctors realized that women would go to any measure to make sure they did not bring an unwanted child into the world. They gradually became more accepting of artificial contraception, like birth control, and migrated away from exclusively promoting natural methods known as (Solinger, 2019). In fact, studies have shown that 66% of doctors trained 19 during the 1930s were taught about birth control medicine - a sharp increase from only

10% who were trained before 1920 (Tone, 2001). Additionally, in the 1940s, a Gallup poll showed that 77% of the American public approved of the distribution of contraceptives in public health clinics (Solinger, 2019). Despite government push-back, society was becoming more open and accepting of women’s need for birth control and realizing that contraception for women is beneficial to the public as a whole.

One of the most important developments in the expansion of reproductive freedom was sexual liberation for women in the 50s and 60s after they entered the post- wartime workforce. Up until this point in history, sex for women was meant only for procreation. Women were expected to be chaste before and were thought to have little to no sexual desire. Once female sexuality was normalized and free-love movements grew, society’s perception of pregnancy began to change. In 1883, Elizabeth

Cady Stanton wrote in her diary regarding a Walt Whitman poem, “he speaks as if the female must be forced to the creative act, apparently ignorant of the fact that a healthy woman has as much passion as a man, that she needs nothing stronger than the law of attraction to draw her to the male,” (Gordon, 2007). Due to the growing women’s liberation movement, women with similar mindsets began to discuss sex and desire more freely in a post-war America.

However, bringing desire and sexuality into the public eye during the 50s and 60s in America also brought about great waves of criticism. Political and religious conservatives opposed open discussions of sex and its normalization on a moral basis

(Gordon, 2007). Since birth control and abortion politics were relatively new, these opponents also had fear on their side. They capitalized on the public’s fear of declining 20 morality by claiming that abortion-on-demand reflected sex without consequences

(Williams, 2013). The first abortion-on-demand laws were passed in the late 60s and were met with adamant resistance from Christian groups. In 1970, Christianity Today, an evangelical protestant editorial, published “Abortion on simple demand when it involves no mitigating circumstances except inconvenience . . . is ,” (Williams, 2013).

Politicians like Richard Nixon observed that abortion was a rising issue in religious communities and joined Catholic community leaders in opposition in order to secure their votes. In a 1971 statement to the Department of Defense, Nixon drew upon the rhetoric of the , stating his “personal belief in the sanctity of human life- including the life of the yet unborn,” (Nixon in Lepore, 2011, p. 7). Despite conservative mobilization in these communities, reproductive freedom efforts would not be so easily thwarted.

After decades of lobbying efforts from Sanger’s sexual liberation movement, the

Food and Drug Administration (FDA) approved the birth control pill in 1960 (Solinger,

2019). However, this pill was not immediately available for Black women and poor women (Davidson, 2016). Because the pill was not inexpensive, Black women and poor women relied on Medicaid to offset costs. However, pharmacists would only sell small quantities of the pill to poor women because government reimbursement checks were slow to arrive. Regarding Black women specifically, racist pharmacists often refused to sell them the pill altogether (Solinger, 2019). As the pill’s popularity grew, wealthy white women throughout the nation were able to plan their families with relative ease. Once policymakers realized that Black communities were reproducing at higher rates, they made birth control pills more accessible to women of color in order to limit the growth of 21 the perceived undesirable population (Solinger, 2019). White policymakers were concerned that an increasing African American population and a decreasing birth-rate among white women would upset their favorable power imbalance. Because of this threat, the birth control pill was made available to both white and black women (Gordon,

2007).

Although great strides were made in policy regarding contraception, abortion politics were still too sluggish to be effective. Morality concerns stemming from religious authorities dominated abortion discourse. In the 60s, the Catholic Church still opposed all abortions, even when the mother’s life was in danger. The Catholic Church’s position only represented a small, but powerful, opposition that was led by religious authority figures (Lepore, 2011). Regarding birth control, Catholics were somewhat disinterested.

They did not support the pill or the movement, but recognized that their own beliefs were not to be imposed on others (Williams, 2013). However, their thoughts on abortion were not as diplomatic. In 1966, the archbishop of Boston, Richard Cardinal Cushing stated that it was “unthinkable that organized society . . . would countenance the killing of an innocent unborn child,” (Williams, 2013). The church began to direct its efforts towards stopping abortion progress and opposing its expansion in any way possible. A small women’s organization in Chicago had other plans (O’Donnell, 2017).

Women who were pregnant and did not want to be could not wait decades for public opinion to condone abortion. Action needed to be taken immediately. In order to satisfy this need, a network of healthcare providers, doctors, and determined women collectively known as “Jane” was established. In 1970s Chicago, Heather Booth referred a friend to a safe abortion provider (O’Donnell, 2017). Since on-demand abortions were 22 illegal at this time, finding a willing and credible physician who could be trusted to both complete the procedure and remain discreet proved to be a challenging task. Word of

Booth’s connections spread throughout the area, both to pregnant women and feminists who wanted to join the cause, thus creating the Jane network.

Jane began as an underground referral system, but the members soon started performing abortions themselves after realizing the procedures were low-risk and able to be orchestrated without formal medical training (Kirtz, 2010). Jane was different from other illegal abortion clinics because of its feminist political advocacy and its lack of judgment (O’Donnell, 2017). This organization also focused on support and education for women. Additionally, the members of Jane created a comforting environment for their patients, whom they referred to as sisters. The practitioners often wore jeans, not white coats, on order to appear as equals to the women they serviced and taught (Reagan,

1997). The women of Jane passed out copies of Our Bodies, Ourselves, counseled their patients, and comforted them throughout the procedure, claiming to “perform these abortions with women, not on them, ostensibly putting radically feminist ideals into practice,” and taking direct action against anti-abortion policies (O’Donnell, 2017).

Jane members also promoted the idea of voluntary motherhood: that every baby should be brought into this world “under healthy and wholesome and loving conditions,” as stated by Felix Danford Lion, a minister from California, in 1967 (Williams, 2013).

Framing abortion and birth control as methods of responsible helped address morality concerns and promote a positive image of intentional and willing mothers who wanted to have children. At this time, public discourse was concerned with the killing of unborn babies and was characterized by the rhetoric from conservatives that 23 abortion was murder (Lepore, 2011) (Solinger, 2019). There were questions about when life begins, what autonomy the fetus had compared to the mother, and the right to life a potential baby may possess (Williams, 2013). Jane members and their supporters countered these fears with ideas of what the life of an unwanted baby might look like.

They claimed that preventing unwanted children from being brought into the world was more responsible than forcing motherhood on unwillingly pregnant women or flooding the foster care system with children. They believed that children and babies had a right to a certain quality of life, not just mere existence itself (Williams, 2013). With this in mind, the public began to move towards accepting abortion on demand, not just in the extreme cases of rape and when the mother’s life was at risk. In the early 1970s, progressive states like New York, Washington, and Alaska legalized abortions in the first trimester and others began to follow (Williams, 2013).

The work of Jane members gave thousands of women access to safe abortions at little to no cost (Kirtz, 2010). These radical feminists decided that the slow-moving political process that granted women the right to birth control would not be enough in the struggle for abortion freedom. Collectively, they did more for abortion progress than anyone before them. Social movements like Jane had steadily been expanding accessibility for abortions and contraception for women throughout the country. Margaret

Sanger, Heather Booth, and thousands of other women like them provided heath materials for women and helped influence public opinion on women’s reproductive freedoms.

However, abortion advocates began to turn towards pursuing rights realizations in the courts towards the end of the 1960s when movement leaders became frustrated with 24 sporadic state legislative victories (Seigel, 2011). Underground and illegal abortion clinics and networks like Jane were not ideal, especially considering the more dangerous back-alley abortions that were not as popular as Jane. In order to make abortion more accessible and safer, advocates wanted to quickly and fully legalize first-trimester abortion practices across the nation (Williams, 2013).

From Sanger’s birth control pamphlets to the underground clinics of Jane, the reproductive freedom movement has been characterized by rebellion. Advocates for women’s liberation took matters into their own hands instead of waiting for courts or policymakers to come around. However, the new juricentric approach to protecting abortion access is characterized by limitation; limiting the scope of reproductive freedom to just abortion, limiting who is protected by rights actualizations, and limiting the areas of activism to the Court. By focusing on actualizing reproductive freedoms through the right to abortion and caselaw, the women’s liberation movement greatly diminished their agenda and diluted its success. Once abortion was legalized by Roe v. Wade (1973), policymakers were in control of abortion progress. They could regulate abortion clinics and contraception into nonexistence and place such harsh restrictions on places like

Planned Parenthood that they are forced to close their doors.

In the next chapter, I will discuss the policy and litigation side of abortion politics that mirrored progress in social movements. I will analyze the court cases that were argued while activists were rebelling against unconstitutional policies limiting bodily autonomy for women. I will show how the most progressive pro-choice judicial decision in American history was detrimental to decades of progress made by socially active organizations before the Court’s ruling. 25

Chapter 2- Reproductive Rights and the Law

Social movements in the early 1900s helped define the progress of reproduction freedom in America. Activism and public displays of resistance against restrictive laws were paramount to the success of the normalization of birth control in later decades.

However, the laws prohibiting the spread of reproductive freedom were also being challenged within the parameters of the legal system. Margaret Sanger’s defiance of the

Comstock and censorship laws occurred both with active resistance and legal challenges.

Sanger believed that widespread birth control reform would happen more immediately if she pursued judiciary methods as opposed to legislative change. In order to challenge

New York censorship laws, she erected the first birth control clinic in , NY.

This institution attracted press, mothers, and eventually law enforcement. After only nine days of operation, Sanger and her assistants were arrested and the clinic was shut down

(Eskridge and Hunter, 2004).

This clinic and subsequent arrest resulted in the court case The People of the State of New York v. Margaret Sanger (1918), commonly known as People v. Sanger. Drawing massive crowds and national attention, this case brought reproductive freedom movements to the forefront of politics. Presiding judge Fredrick Crane ruled that since

New York law only allows doctors to distribute contraception (and Sanger was not a doctor), criminal action had occurred. Although Sanger was convicted and sentenced to thirty days in prison, this case has been widely considered the first victory in law for the birth control movement thus far (Malladi, 2018). This case paved the way for future cases to use a medical approach in their arguments in favor of public access to contraception by 26 expanding the definition of treatable disease from only venereal disease to include pregnancy. People v. Sanger suggested to reproductive freedom advocates that their solace lie lay in law, not legislation and helped shape the legal approaches the realizing the right to bodily autonomy for decades to come.

After this test case, birth control advocates turned to the law for change. In 1943, a doctor in Connecticut brought the first case explicitly regarding birth control to the

Supreme Court- Tileston v. Ullman (1943). In his case, he argued that a Connecticut statute prohibiting the use of birth control provided by a physician unconstitutionally prevented him from providing complete medical care to his patients. However, the Court ruled against Tileston and claimed that he could not campaign on behalf of his patients’ rights (Eskridge and Hunter, 2004). This case, however unsuccessful, helped the birth control legal community grow, adapt, and prepare for their next opportunity to challenge the few remaining state laws that were anti-contraception.

There were several legal strategies that appealed to activists, first and foremost being the medical approach, as exemplified in Tileston v. Ullman. The medical approach centered around the duty of physicians to provide the best care for their patients, which doctors argued included contraception for women (Siegel, 2011). As a result of United

States v. One Package (1936), no restrictions were allowed to prohibit doctors from ordering diaphragms, therefore giving them significant control over contraception distribution. By framing birth control as a medical necessity for women, doctors were allowed to advocate for a quick alteration to the law based on their medical expertise

(Eskridge and Hunter, 2004). This approach also centered around scientific claims, which made judges more likely to trust the word of physicians and rule in their favor (Siegel, 27

2011). The medical argument in support of contraception dominated reproduction discourse throughout the movement and played an important role in abortion debates as well. Mary Steichen Calderone, the medical director of Planned Parenthood in 1960 argued that the medical community was obligated to fight “this disease of society, illegal abortion,” and protect the reproductive health of women (Seigel, 2011). However, this approach ultimately distracted from the anti-feminist core of reproduction restrictions.

In 1943, a doctor in Connecticut brought the first case explicitly regarding birth control to the Supreme Court- Tileston v. Ullman (1943). In his case, he argued that a Connecticut statute prohibiting the use of birth control provided by a physician unconstitutionally prevented him from providing complete medical care to his patients. However, the Court ruled against Tileston and claimed that he could not campaign on behalf of his patients’ rights (Eskridge and Hunter, 2004). This case, however unsuccessful, helped the birth control legal community grow, adapt, and prepare for their next opportunity to challenge the few remaining state laws that were anti-contraception.

When upstanding members of the community, such as doctors, are the most prominent advocates for the movement, contraception is more normalized and less taboo.

However, exclusively focusing on doctors exclusively presented long-term drawbacks.

Promoting distribution of contraception by doctors alone limits popularity and access to birth control. The medical approach does not address the root of contraception restrictions, but merely displaces the control of these materials to another male- dominated profession (Siegel, 2011). Instead of pursuing this problematic thread of medicine in subsequent court cases, advocates turned to another approach- the right to privacy. 28

After Tileston v. Ullman, another Connecticut case, Poe v. Ullman (1961) was brought before the Supreme Court. This case was dismissed because there was no actual injury to consider, only the threat of injury by the law. However, Justice Harlan’s dissent was significant in its consideration of privacy in married relations. In his opinion, Justice

Harlan concedes that Connecticut has the right to judge for itself the morality it wants to uphold in its laws pertaining to controversial issues such as family planning and contraception. He also states that the right to privacy is not absolute and that sexual relations are not protected absolutely, referencing adultery, homosexuality, and incest.

However, he asserts that the relations between married men and women are too intimate to be made criminal in this way. Enforcing this statute would require an “intrusion of the whole machinery of the criminal law into the very heart of marital privacy,” thus requiring strict scrutiny to be applied if such a fundamental aspect of liberty were to be abridged (Harlan in Eskridge and Hunter, 2004, p. 13). Although this was considered another loss in the fight for accessible birth control, the dissenting opinions showed that resistance against access to contraception was growing thinner by the year.

The last case to challenge the restrictive Connecticut birth control statute was

Griswold v. Connecticut (1965). In this case, a married couple used contraception on the medical advice of a physician which the state ruled violated the same statute in previously mentioned cases. Finally, the Supreme Court has a case with actual injury brought before them by the party in question at a time when the Justices and the pubic are ready to accept contraception. The main questions in this case were if the Constitution protected a right to privacy and if that right was violated because of this invasive statute.

Agreeing with Harlan’s previous opinion, Justice Douglas writes a majority opinion very 29 similar to the dissent in Poe. He asks, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraception? The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” (Douglas in

Eskridge and Hunter, 2004, p. 14). Douglas recognized the value of marital privacy and felt that the right for married couples to control their pregnancies was undeniable. In a concurring opinion, Justice Goldberg goes on to cite the Ninth Amendment as his justification for recognizing the constitutional right to privacy, claiming that amendment exists exactly for this scenario and that the codification, or lack thereof, of the right to privacy does not diminish its importance in American jurisprudence. With this ruling, the

Supreme Court Justices finally gave women legal access to birth control for the first time in United States history.

The Griswold decision paved the way for a new thread of court cases focused on expanding women’s bodily autonomy through reproductive control framed by the right to privately decide one’s own medical needs. A few years later, these rights guaranteed to married couples by Griswold were expanded in Eisenstadt v. Baird (1972) to include unmarried women. Justice Brennan explains in his majority opinion that discriminating between married and unmarried women regarding their access to birth control was a violation of the equal protection clause of the fourteenth amendment. The court agreed that there was no convincing rational as to why married women and unmarried women should receive different access to medicine. Justice Brennan also addresses the health concerns surrounding birth control in this case. He references the dissent of Justices

Whittemore and Cutter in Commonwealth v. Baird (1969) who wrote “if there is need to have physician prescribe (and a pharmacist dispense) contraceptives, that need is as great 30 for unmarried as for married persons,” (Whittemore and Cutter in Eskridge and

Hunter, 2004, p. 27). Justice Brennan further asserts that privacy rights are to be applied to the individual, not the collective decisions of a married couple. Drawing upon the

Griswold decision, Brennan affirms that the privacy rights are not exclusively reserved for married people, which would assume that a married couple is an independent entity.

Brennan writes, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a as the decision whether to bear or beget a child.”

(Brennan, 1972). The distinction between married and single women’s access to birth control was not convincing enough for the Court, thus the statute was struck down. This ruling was an interesting blend of equal protection and privacy justifications, but ultimately resulted in an expansion of women’s bodily autonomy regarding reproduction freedoms.

After Eisenstadt, birth control became available to women regardless of their marital status. Although they still required and the prescription of a physician to obtain access, the popularity and acceptance of contraceptives continued to grow nation-wide. Second-wave feminism allowed women to pursue legal and legislative changes in order to actualize their rights (Gordon, 2007). After judicial victories in

Connecticut, Massachusetts, and in front of the United States Supreme Court, reproductive freedom advocates had the momentum and attention needed to continue their progressive efforts. Now that the individual right to birth control had been realized in law, activists turned to abortion politics. 31

Abortion, although closely linked to contraception, was an entirely different quagmire for society to consider. Birth control was just recently accepted by conservatives, and still only in highly regulated forms. A constitutional right to end pregnancy was perceived very differently in society than a right to prevent unwanted pregnancies. Many antiabortion activists, especially the Catholic Church, drew attention to the innocent life that was terminated with abortions and claimed that abortion was essentially murder (Gordon, 2007). Due to the efforts of evangelical Christians, pro- choice activists were met with much more resistance regarding abortion compared to the birth control movement.

Abortion was already legal in most states in at least some form, usually in cases of rape or if the mother’s life was at stake (Gordon, 2007). reform was happening at the state level throughout the country, most notably in North Carolina,

Colorado, and California around 1967, but even here, abortions were only allowed under limited circumstances and were not available without restrictions (Garrow, 2014). These sporadic victories occurring at the state level did not satisfy pro-choice supporters.

Activist groups like NOW were pushing for legalized abortion by choice, or abortion on demand, compared to therapeutic abortions which referenced pregnancies that threatened the life of the mother (Siegel, 2011). Although this type of abortion was already being adopted in some state legislatures and was already being performed illegally by networks of physicians like Jane, it could not escape controversy (Williams, 2013). Since it seemed like congresspeople and voters would not grant the right to abortions legislatively or in a timely manner, advocates turned to the courts yet again. Led by physicians and feminists, 32 the struggle for abortion acceptance was brought to a national spotlight and taken out of the hands of state legislatures.

The very first abortion case to be presented to the Supreme Court was United

States v. Vuitch (1971). In this case, a District of Columbia statute preventing abortions unless the health of the mother was at stake was scrutinized for vague implications of the meaning of health. The court upheld the law, claiming that as long as the health of the woman was meant to include her physical and mental well-being, it was not unconstitutionally vague (Garrow, 2014). Although this decision did not expand abortion rights by allowing a state to limit the practice to women with health concerns, it paved the way for future cases to further challenge the constitutionality of anti-abortion laws.

Only a year after Eisenstadt, the United States Supreme Court was presented with

Roe v. Wade (1973). In this case, an unmarried pregnant Texas woman, referred to as

Jane Roe, sought to terminate her pregnancy, thus breaking a Texas statute that prohibits abortions except in the rare cases where the mother’s life is at stake. The first time this case was argued in front of the Court, the Justices failed to reach a majority consensus, electing for the cases to be reargued next term. In the majority opinion, Justice Blackmun acknowledges that women do have a constitutionally protected right to abortions based on precedent in cases like Griswold and Eisenstadt. Additionally, abortion was no longer medically dangerous, and the state did not present a morally conscious argument for consideration. Blackmun also states that privacy rights are “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” (Blackmun, 1973). He also notes that the state does have a vested interest in protecting life and in the protection of the woman, but only in cases of late-term abortions (Eskridge and Hunter, 2004). 33

Despite these victories for abortion rights, the court also ruled that abortion rights are not absolute and can be regulated. In Roe v. Wade, the Justices introduce a trimester framework that gives states more power to protect life the further into pregnancy timelines. Because of this, states are permitted to regulate abortions in the second and especially the third trimester as they see fit, leaving the first trimester relatively protected from regulations. This allows women to have a constitutionally protected right to abortions, but maintains the emphasis on health, life, and medical concerns from the state.

After Roe v. Wade, several other court cases defined what may or may not be regulated by the state regarding abortion practices. Pressured by the pro-choice countermovement commonly known as the pro-life movement, state legislatures began enacting restrictive policies meant to limit the freedoms recognized by Roe v. Wade.

Laws requiring consent of the father, consent of the parents in cases of minors, abortion waiting periods, and state-provided information meant to deter mothers were enacted in several states. These legislatures also denied funding to hospitals and clinics that provided abortions (Eskridge and Hunter, 2004). In Planned Parenthood v. Danforth

(1976), the Supreme Court ruled against requirements for parental consent for minors and spousal consent for married women. In Bellotti v. Baird (1979), Justices struck down more consent requirements for minors seeking abortions, but only in cases where a judge is available for young women to bypass their parents for consent. This was affirmed a few years late in Planned Parenthood v. Ashcroft (1983) when the Court ruled that minors must obtain either parental or judicial consent before receiving an abortion. 34

Through these smaller subsequent cases in the wake of Roe v. Wade, the undue burden standard began to form. When evaluating abortion policies from different states,

Justices considered how impactful these restrictions were on a woman’s right to control her own pregnancy. Although abortion rights were guaranteed by Roe v. Wade, they were not inviolable. Since the Justices ruled that women do have a right to terminate their pregnancies, but that right was not absolute, states were allowed to enact their own restrictions on abortion practices and clinic funding. The amount of burden these restrictions placed on women was the framework with which these less prevalent cases were decided. In Akron v. Akron Center for Reproductive Health (1983), the Supreme

Court reinstated previously banned a certain type of abortion procedure. The Justices decided that because the procedure was relatively safe and cost effective, banning it would place an unnecessary and substantial burden on women’s access to abortions.

Another case that protected abortion rights after Roe was Colautti v. Franklin (1979). In this case, the Court struck down a law requiring physicians to conclude the viability of the fetus before termination on the grounds of unconstitutional ambiguity.

After the election of President Reagan, the Court’s ideological composition began to change. With the newly appointed Chief Justice Burger, Justices O’Connor, Souter,

Thomas, and Kennedy, the favor had shifted to conservatives (Eskridge and Hunter,

2004). With this composition of Justices, Roe was suddenly extremely vulnerable. The next significant case to reach the Supreme Court regarding abortion rights was Planned

Parenthood of Southeastern Pennsylvania v. Casey (1992). In this case, Justices found that a Pennsylvania statute placed significant burdens on women’s access to abortions. 35

The court upheld the twenty-four-hour waiting period and parental consent stipulations of the law and only eliminated the spousal notification requirements (Wharton, 2006).

This case was quite divisive for the Justices who could not reach a consensus for a majority opinion. Some Justices wished to overturn Roe v. Wade while others vied for all abortion restrictions to be struck down. In the dissent, the main argument was that Roe v.

Wade must not be upheld. Because the majority of the Justices chose to uphold Roe, this case was a symbol that Roe v. Wade was decided correctly then and stands to this day, further establishing the right to abortion as fundamental. Although the Court upheld the core values of Roe v. Wade, this decision greatly narrowed the scope of abortion freedoms, applying the new undue burden test to restrictive state legislation.

Roe v. Wade’s trimester framework was invalidated by the undue burden standard because limiting abortion to specific trimesters is a burden. In City of Akron v. Akron

Center for Reproductive Health Inc. (1983,) Justice O’Connor wrote the following in her personal case notes:

There is simply no justification in Constitutional theory for having a different

standard or test for the different trimesters. Seems it puts us in the business of

being a science review board. The interest of the state in protecting the unborn is

essentially the same at all stages of pregnancy. I would permit state regulations at

every stage which do not unduly burden the right of the woman to terminate her

pregnancy. (Thomas, 2019)

Due to the conflicting ideologies of the two provisions, the undue burden standard replaced the trimester framework of Roe v. Wade, fracturing support for the case by revealing its shortcomings. 36

After the Akron case, Planned Parenthood v. Casey further defined what a right to abortion actually means and what the state may or may not do to either protect this right for women or diminish it. Following Planned Parenthood v. Casey, other cases emerged that would help determine what constituted an undue burden. In 1997, Mazurek v.

Armstrong established that proving a statute to be excessively burdensome was quite difficult. Lower appellate courts applied the Casey test in a way that required the plaintiff to prove that the restriction “served no other purpose than to make abortions more difficult” which was nearly impossible (Wharton, 2006). Based on the opinions of the

Justices, as long as a state could prove that the motives of the restrictions were not to deny women’s access to abortions, the law would stand. In Stenberg v. Carhart (2000), the Court struck down a Nebraska law that made partial-birth abortions illegal. Justice

Breyer’s majority opinion recognized that this method of abortion was not banned for health or safety reasons and was only instituted as a mean of deterring women seeking abortions. The Stenberg decision showed exactly how significant a burden could be in order to be struck down by the Court.

These cases demonstrated that Roe v. Wade and Planned Parenthood v. Casey would not so easily be overturned. Although the Justices qualified the abortion right, the

Supreme Court maintained its commitment to reproductive protections for women as guaranteed by these cases. However, Roe v. Wade has not been viewed as settled law in its entirety. These cases are decided with a narrow majority, or in some cases like with

Planned Parenthood v. Casey, no majority at all. Legislators and Courts both receive pressure from pro-life and pro-choice organizations to this day. In the next chapter, I will tease apart the flaws of pursuing rights actualizations in the courts and show how these 37 cases have allowed conservative backlash from progressive reproduction laws to shape the implementation of Roe v. Wade’s abortion protections. I will explain how the successes in the courtroom have failed women in their struggle for reproductive freedom. 38

Chapter 3- Limits of Law in the Abortion Movement

The fight for abortion protections occurred in two different arenas. The first was separate from law, where activists provided women with birth control, education about contraception, and access to safe, although illegal, abortions. The second arena was the courts, in which activists pursued litigation with the hope that it yield more effective and immediate results than policy reform. After years of conflict in the courtroom, Roe v.

Wade determined that the right to abortion was protected by the Constitution and rooted in the right to privacy.

Ever since this landmark decision, however, access to abortion has been threatened nationwide. Planned Parenthood, clinics, and other similar medical facilities cannot use government funds for abortion practices. Costly federal mandates have forced clinics to close their doors, and picket lines often surround the doors of abortion providers, adding additional burden to the process of terminating a pregnancy (Goodwin,

2017).

It is a common assumption that Supreme Court cases settle an issue for good, but in reality, judicial decisions do not provide the same finality as law and policy. Although

Roe v. Wade and Planned Parenthood v. Casey established that women have a constitutional right to terminate pregnancies without undue burden, policymakers have passed hundreds of restrictive abortion laws since these judicial decisions were issued.

According to the Guttmacher Institute, between 2011 and 2018, state legislatures have enacted 424 separate restrictions that greatly burden women’s access to safe, legal abortions (Nash, 2018). Additionally, so far in 2020, hundreds of new abortion 39 restrictions have been introduced at the state level, including ten states that have introduced laws banning abortion after only six weeks (Planned Parenthood, 2020).

If the issue of abortion was supposedly settled by the Supreme Court in 1973, then why is abortion under attack today? The reason is twofold: Because the movement relied too heavily on law to remedy social injustice, and because that overreliance unintentionally made women’s right to abortion fragile. Ever since the Court decided that the Constitution protects one’s ability to choose, policymakers have limited access to abortion clinics and defunded women’s sexual education programs in order to promote a right to life agenda. By assuming that a Supreme Court’s ruling would settle once and for all that women have a Constitutional right to abortion, and that lawmakers and society would adhere to the Court’s ruling, reproductive freedom advocates left their agenda exposed to resistance and inadvertent repercussions.

Society has tied pro-life vs. pro-choice debates to Roe v. Wade and blamed the

Court for overreaching and pushing the public to accept abortion before they were willing to do so (Gordon, 2007). However, the attacks on abortion since Roe v. Wade are not results of the case itself. Although Roe v. Wade was a significant turning point in the struggle for reproductive freedom, the ensuing attack on access to abortion was caused by poor practices within the social movement- not the shortcomings of the court case. The single-minded focus of leading activist organizations on legal mobilization for abortion is responsible for the deteriorating abortion protections since Roe v. Wade. To understand why this is the case, we must first discuss the influence of Roe v. Wade in the reproductive freedom movement.

40

Perceived Backlash

Pro-choice advocates tend to blame Roe v. Wade for the fragility of the abortion right and for the perceived vulnerability of its constitutional legitimacy (Siegel, 2011).

The outdated trimester framework, the restrictions from Planned Parenthood v. Casey

(1992), and the organization of pro-life and pro-choice movements following the decision were more than enough to warrant criticism for the case and the anti-abortion political climate it brought about. Societal perception is that Roe v. Wade pushed an unwilling public too far when the Court attempted to end the abortion debates that were to be sorted out democratically at the state level (Zeigler, 2015). The controversial case is also blamed for sparking a nation-wide debate that would deeply divide the public on the issue of abortion (Williams, 2013).

However, these conflicts between pro-life and pro-choice supporters were present long before the issue of abortion reached the Supreme Court. Today, historians often assert that the right-to-life movement resulted from Roe v. Wade; but they fail to recognize that the Catholic Church began this campaign in earnest in 1967 in order to counteract state legislators who were slowly enacting laws legalizing abortion by physicians in special circumstances (Siegel, 2011). Additionally, the National Conference of Catholic Bishops fought pro-abortion legislation in 1967 by funding the newly established National Right to Life Committee (Siegel, 2011). It seemed at the time that society was slowly coming around to the idea of abortion. Several states were loosening restrictions and increasing access to abortions (Williams, 2013). Doctors were supportive of pro-choice policies and assuaged fears that the procedure was a medical risk (Siegel,

2011). But that perception of a growing social acceptance for abortion was incomplete. 41

After Roe v. Wade, abortion access continued to shape political discourse.

However, the issue of abortion progressed in the legislature independently from its development in the courts. Although 1972 was an incredibly significant year for the abortion right in the Court, party polarization on the issue reached congress much later.

Social Survey data in 1972 showed that Republican members of congress were actually more pro-choice than Democrats (Adams, 1997). It was not until 1988 when Gallup polls began to show that Democrats supported abortion consistently more than Republicans

(Siegel, 2011). Considering this data, Roe v. Wade was clearly not responsible for the and party divisions which occurred separately from the judicial decision.

In the years following the decision, anti-abortion campaigners were opposed to returning the debate to democratic politics due to the increasing acceptance of abortion practices at the state level (Zeigler, 2015). At first, groups with a pro-life agenda pressured the Court to defend fetal rights, claiming their issues were not with an overreaching judicially active Supreme Court, but rather with the opinion the Court issued. This debate between fetal rights and the bodily autonomy of the mother did not begin as a result of Roe v. Wade but was actually pervasive in abortion debates before the issue reached the Supreme Court (Bernstein, 2008). As abortion laws became more liberal in the 1960s, pro-choice advocates began claiming that fetuses have no rights at all whereas conservatives claimed the government had a vested interest in protecting potential life (Williams, 2013). Roe v. Wade was not the catalyst for abortion backlash- abortion was already under attack from conservatives before Roe v. Wade was even a case. 42

Once we have corrected this common misreading of Roe v. Wade as the catalyst for the pro-life movement, we can reframe the subsequent abortion attacks. The attacks on abortion that occurred after 1972 were from efforts by antiabortion conservatives that were already set in motion before the case existed.

Conservative policymakers have continuously campaigned to overturn Roe v.

Wade and have been limiting access to abortion since the seventies. Legislation like the

1977 Hyde Amendment which prohibited the use of federal Medicaid funds for abortion

(excluding cases in which the mother’s life was at stake or the pregnancy resulted from incest or rape) directly opposed Roe v. Wade and its commitment to women’s abortion freedoms (Goodwin, 2017). Additionally, state legislatures have been rolling back abortion protections and increasing regulations on women’s health clinics and abortion providers with disregard for the undue burden standard set by Planned Parenthood v.

Casey in 1992. By requiring abortions to be performed by licensed physicians, restricting funding, and limiting access to sex education, the right to abortion has been dismantled for women in many states. In Texas, one of the most anti-abortion states in America, eighty-two family-planning clinics and fifty additional women’s health clinics not affiliated with abortion have closed since 2013 (Goodwin, 2017). Obviously, these attacks on abortion affect much more than just one issue, but are targeted at limiting female bodily autonomy and healthcare.

Since 2015, legal scholars have imagined a possible repeal of the Hyde

Amendment and other abortion restrictions with the potential election of the first female president (Goodwin, 2017). Up until the second Bush administration ended, unintended pregnancies tended to spike with Republican leaders and lessen with Democrat leaders. 43

Under the Obama administration, restrictive policies regarding reproductive health care were lifted, including the infamous Global Gag Rule, which led to a significant national decrease in unintended pregnancy rates (Finer, 2016). Because this administration was able to repeal certain restrictive policies, dismantling the Hyde Amendment seemed like the next step in protecting reproductive health for women. However, the Trump administration and the addition of conservative Supreme Court Justices quickly dashed hopes of a repeal. The Republican Party’s political platform references opposition to abortion rights thirty-fives times and has been committed to protecting the right to life agenda for decades (Goodwin, 2017). Obviously, the fundamental threat to abortion and reproduction is much larger than one single court case or policy.

Perceived backlash from Roe v. Wade is a red herring that distracts critics from the real issue at hand- the poor choice of reproductive freedom advocates to pursue a judicial victory rather than dismantling restrictive policy and slowly implementing abortion access protections through legislative efforts. Abortion debates progressed independently from the Courts in policy and public discourse, which is where pro-choice advocates should have focused their campaign. In the next section, evidence will show how the movement’s overreliance on litigation to remedy anti-abortion policies was misguided and ultimately led to weak reproductive freedom protections.

Overreliance on Litigation

Reproductive freedom is under attack now because birth control and abortion movements relied too heavily on law to remedy gendered social injustice. To this day,

Roe v. Wade remains the only law or court case that guarantees access to abortion. By 44 trusting too completely in law to protect the abortion right from pro-life activists, movement leaders left the right exposed and vulnerable.

Unfortunately, policy change and court victories do not guarantee social change.

There are two reasons for this: policy and judicial implementation may not always be faithful to the spirit of reformers, and legislators can undermine celebrated policy or perceived judicial victories with subsequent policymaking. This has become all-too clear when it comes to the right to abortion in the United States: supposedly guaranteed by Roe v. Wade, the right to an abortion is unrealizable for millions of American women who, thanks to subsequent policymaking, cannot access clinics or afford to pay for abortions.

That kind of backsliding, however, is just one small way in which the acquisition of rights may disappoint radical social movements. This thesis is concerned with a more fundamental challenge to radical social movements: the narrowing of vision that may occur when activists become too wedded to solutions through litigation.

Group organizers and the general public have too much faith in law and rights when it comes to fixing social injustices. They expect that a ruling from a judge or a new law from the legislature will automatically cause people to change their ways. This false belief has led to a pattern of fixation on acquiring rights through law in progressive social movements. Instead of pursuing the more radical goal of intersectional reproductive protections for all women, pro-choice activists have pursued a right through court decisions that only encompasses one aspect of women’s embodied experience in

America. In so doing, these activists have failed to protect the full spectrum of bodily oppression women of different backgrounds face in America. 45

Furthermore, the focus on the right to abortion has prioritized the needs of white, middle-class American women. It is not that working-class women or women of color in

America do not ever need to terminate a pregnancy; rather, the narrow focus on this one aspect of women’s bodily oppression has marginalized the many other forms of bodily oppression American women face.

Rights are, by their own nature, unstable. Consider the process through by which laws are passed. A congressperson is lobbied by an organization with a specific agenda, they make compromises with the lobbyist to serve both of their interests, the words of the bill become law and are actualized in society. This law was created, passed, and applied in a certain political climate and was meant to reflect the time and culture of the society in which it exists. As time goes on and the political climate changes, that law may begin to be interpreted in different ways.

The interstate commerce laws that existed at the founding of in the United States when horses and covered wagons were the main methods of transportation. Interstate trade laws reflected these the slow pace of travel processes at the time. These laws became antiquated as the pace of transportation and the trade process increased with new technologies like railroads, steamboats, and automobiles. As state-to-state trade became more possible and the nation effectively shrank in perceived size, certain commerce laws, like those affecting outdated modes of transportation, became obsolete. They no longer reflected the society in which they existed; only the society in which they were created.

Mark Tushnet (1984) argues that “The set of rights recognized in any particular society is coextensive with that society” (p. 1370). The conditions of a society, such as personal values and technology, determine the set of rights that are important in that 46 culture. The idea of fundamental indeterminacy, which means that rights cannot be separated from the society within which they were created, is directly evident in the struggle for women’s abortion rights and reproductive freedom (Tushnet, 1984).

Rights are also exclusionary. In order to actualize a right, the majority of the electorate must support it. This means that compromise is necessary and inevitable regarding rights frameworks. These compromises are often at the expense of historically marginalized and oppressed groups, such as black women, poor women and underage women in the context of reproductive freedom struggles (Tushnet, 1984). When social movements turn towards a pursuit of rights, these groups, and others that have existed on the fringes of society, are at a disadvantage. They are less protected by law because they have less invested in a society that has not treated them with the same equality that is given to preferred demographics.

Leaders of the abortion right movement turned to the Court due in part to the success of the African American civil rights movement. After Brown v. Board of

Education (1954), backlash ran rampant in urban communities. White flight created a vacuum in school districts, issues with bussing and equal funding further exposed racism in these areas and showed how the public was disagreeing on this issue (Klarman, 1994).

In 1964 and 1965, congress passed the Civil Rights Acts which helped enforce Brown v.

Board and further demonstrated the federal government’s commitment to racial equality

(Brown v. Board of Education of Topeka, 347 U.S. 483. 1954). Similarly, Roe v. Wade was met with comparable backlash that was also present before the case reached the

Court. However, there was no policy to follow Roe v. Wade to help enforce it and show a commitment to gender equality like there was in the aftermath of Brown v. Board. 47

Shortly after Roe v. Wade, the failed to achieve state ratification, despite the Senate’s approval shortly after Roe v. Wade. This made enforcing abortion rights and access difficult and showed how the nation was not committed to one idea of female equality. Without support from policy, Roe v. Wade was incapable of protecting access to abortion.

This lack of policy supporting reproductive freedom also allowed for restrictive policy to fill the legislation vacuum. In 1980, the Supreme Court upheld the Hyde

Amendment. The Court did not recognize that the Hyde Amendment only affected women, but instead accepted the government’s rational behind their legitimate interest in defending a right to life (Stephens, 2015). Reproductive freedom activists’ false faith in the power of law to remedy social injustices, paired with the lack of legislation protecting women’s equality, ultimately allowed for the collapse of abortion security.

Before they turned to judicial mobilization, pro-choice groups were actively resisting the antiabortion policies. The doctors of Jane were providing women with safe, affordable pregnancy termination;, Margaret Sanger’s Planned Parenthood was distributing contraception;, and clinics were freely educating women about sexual health.

Eventually, the efforts of these movements shifted towards legalizing abortion with hopes that women would not be forced to enact bodily control in secret forever. The National organization for Women (NOW) led by called for a new era of the reproductive freedom movement centered around repealing restrictive abortion laws and taking control of abortion away from the male doctors that were currently the most outspoken pro-choice political activists (Siegel, 2011. Lepore, 2011). In 1969 at the First

National Conference on Abortion Laws, Friedan demanded a “new stage in your 48 movement, which is now mine,” calling for more drastic progress than mere reform of existing abortion laws (Siegel, 2011). Although the American public seemed to be slowly coming around to the idea of reproductive freedom, a state-wide vote to legalize abortion would have most likely failed (Williams, 2013). Federally speaking, the future of abortion before Roe v. Wade was bleak. In 1968, President Johnson’s Council on the

Status of Women recommended the repeal of all abortion laws (Rosenberg, 2008). Due to the frustratingly slow progress of pro-choice laws at the state level, the Supreme Court seemed to be the best option for legalizing abortion.

However, can the Court really enact desirable social reform? Immediately following Roe v. Wade, a wave of new abortion legislation flowed from states. Some like

Rhode Island passed laws that stated women could only obtain abortions when her life was threatened, others like Louisiana introduced bills that could strip physicians of their medical licenses if they performed abortions (Weinstock et al. 1975, 28; 1973). Many of these laws have since been struck down on account of the undue burden standard established by Planned Parenthood v. Casey, but have they still reflected antiabortion attitudes in the American public. The Supreme Court decision in Roe v. Wade was not responsible for the backlash in the years to follow- the attack on abortion had been developing at the state level since the 1950s if not earlier (Rosenberg, 2008). The Court should also not be held responsible for the lack of abortion protections after Roe v. Wade.

The Court is not a legislative body, no matter how actively they exercise their judicial powers.

To some extent, the Supreme Court can enact social change in the form of legalizing the practice of abortion, but protecting this right and implementing it in a way 49 that can actually affect women’s lives is a power left to the legislature and therefore the people. The American public was ambivalent about abortion, recognizing fetal rights as well as the reproductive rights of mothers (Williams, 2013). In 1970, four states eliminated restrictions on all abortions in the first and second trimesters and thirteen states had reformed their abortion laws, showing a commitment to increasing safe abortion access (Williams, 2013). However, all other states remained unmoved by this wave of progress and maintained their laws outlawing abortion unless the pregnancy threatened the health of the mother (Solinger, 2019). Diverse opinions on abortion would be better reflected by allowing the people to decide the future of abortion on a state-by- state basis, where reform was already happening before the Court stepped in with Roe v.

Wade. Abortion discourse in state legislatures seemed to be slowly eradicating restrictive laws and enforcing legal abortion protections. Once the debate was determined for all by the Supreme Court, conservative efforts that existed before Roe v. Wade- like antiabortion Republicans who targeted ambivalent Catholic voters (Siegel, 2011)- capitalized on the halt of progressive legislation by rallying support for the right to life

(Williams, 2013). The Court is not equipped to ensure the acceptance of its rulings which contributed to the weak protection of the abortion right. If the success of abortion reform is left to the Court and the Court alone, it will continue to fail due to the limits of the

Court as a perceived social injustice solution.

Unintended Consequences

Attacks on abortion are rooted far deeper than this one right. Abortion is one aspect of a much larger struggle for reproductive freedoms, which include equal 50 maternity rights in the workplace, access to sexual education, and contraception.

Furthermore, reproductive freedom is a subsection of bodily autonomy efforts for women, which ranges from gender expression to the fight against rape culture. By reducing all bodily autonomy efforts to the right to abortion, pro-choice feminists have greatly lessened their agenda and impact. Not all women believe they have a right to choose, or even want that right. Additionally, the way in which that right was won, through Roe v. Wade, is much too narrow to affect all women in America. Bodily autonomy movements were diminished to just one small aspect that in turn derailed decades of progress from feminists.

Narrowing of the abortion issue is also detrimental to women of color, specifically African American women. The movement to gain the right to abortion was led by white women, leaving the voices of black women unheard (Zeigler, 2015).

According to survey data, African American women were also ambivalent about abortion, opinions which were affected by religious affiliation, regional location, and income status (Lynxwiler, 1996). Although female African American opinions on abortion generally aligned with those of white women, reproductive freedom movement leaders believed their agenda would be more broadly accepted if they focused on the rights of white upper-class women to terminate their pregnancy (Zeigler, 2015).

However, conservative policymakers viewed this as an attack on white reproduction and began making birth control available to African American women in order to limit reproduction in so-called undesirable communities (Gordon, 2007). Additionally, African

American women were less confident in the American medical establishment due to the history of forced sterilization of Black women. Fake abortion clinics where doctors 51 sterilize women seeking reproductive care have been an issue in these communities since the start of the birth control movement (Davidson, 2016). By failing to approach abortion with an intersectional mindset, the movement left African American’s voices out of consideration, which contributed to fracture in the pro-choice community after Roe v.

Wade.

The narrow focus of the movement centered on litigation also failed to consider that law does not apply equally to all groups of women. The mere right to abortion does not give poor women funding for abortion, nor does it protect Black women from the dangers of potential sterilization. The unintended consequences of pursuing legal mobilization have not only been damaging to these marginalized groups, but have also caused a fracture in the mainstream reproductive freedom movement. Because Roe v.

Wade was incomplete, criticism from all communities has entered the discourse.

Although Roe v. Wade was perhaps not the most desirably way to protect bodily autonomy and reproductive freedom for all women in America, it still remains the most significant champion of these liberties. This criticism can be framed to support the overturning of Roe v. Wade, which would be a victory for conservatives, perhaps the most injurious unintended consequence of all.

Another group that was unsatisfied with the abortion movement is minors. Girls under the age of eighteen who are seeking an abortion have to jump through significant hurdles unlike adult women. They must receive parental consent, a judicial bypass, waiting periods, pro-life literature, and many more conditions in order to obtain an abortion (Silverstein, 2008). Even with the undue burden standard from Planned parenthood v. Casey, young women face these limiting obstacles that threaten their 52 fundamental right to an abortion. Obviously, the current litigation is not enough to protect the reproductive freedom rights of all women.

As a result of the reproductive freedom movement’s narrowed focus on legal mobilization and acquisition of the right to abortion, women’s bodily autonomy abortion protections in America are under siege – and, ironically, the right to an abortion is also now the weakest it has been in decades. Fragile caselaw cannot protect against the pro- choice movement, conservative Supreme Court Justices, and the exclusionary exclusions of a pro-choice community movement that has failed to African American women, poor women, and minors. Movement leaders like Sarah Weddington and Linda Coffee- the lawyers who argued on behalf of Jane Roe- decided in the 1970s that the Courts were their salvation (Lepore, 2011). By pursuing a judicial victory with Jane Roe and turning to the Courts, pro-choice actors, like the National Organization for Women who heavily supported the efforts of Weddington in Roe v. Wade, political discourse shifted away from legislative bodies and voters (Seigel, 2011). Women have been dealing with the unintended consequences of this juricentric approach ever since Roe v. Wade.

Another concern of an overreliance on litigation to solve injustices is the perceived finality of caselaw. Because the way in which abortion should be treated was decided in Roe v. Wade, debates cannot continue. African American women were unsatisfied by Roe v. Wade and the abortion rollbacks in the years following the decision, but this case is the only protection of their right to choose (Davidson, 2016). If a group was not included in the narrow legal victory, they will be struggling for inclusion for 53 years to come- a struggle which is only worsened by hegemonic leaders who consider the issue to be settled in their favor.

Courts are not meant to enact sweeping and detailed social reform, but rather to settle contentious legal questions. Roe v. Wade established that the right to abortion exists in the constitution, but the implementation and realization of this right must be a continuous conflict in both the law and society. Perceptions about the finality of litigation regarding reproductive freedom movements must be rethought in order to protect the abortion right for all women.

54

Conclusion

In the 2016 Presidential debates, the right to abortion was a particularly divisive issue. Democrat nominee Senator and Republican nominee Donald

Trump expressed opposite opinions on the issues surrounding reproductive freedom, such as funding of Planned Parenthood, partial-birth abortions, and a woman’s right to choose.

Due to the recent retirement of Justice Anthony Kennedy and the passing of Justice

Antonin Scalia, the next President would be responsible for choosing two new Justices.

Furthermore, the increasing advanced age of several other Justices on the Court also suggested that additional vacancies on the bench could be imminent. The potential to shape the agenda and ideology of the Supreme Court was a major factor for the nominees and voters to consider.

During the third Presidential debate, moderator Chris Wallace asked Trump, “Do you want the Court, including the Justices that you will name, to overturn Roe v. Wade, which includes, in fact, states a woman’s right to abortion?” In response, Trump stated that he would appoint pro-life judges and a reversal of Roe v. Wade would happen automatically. As a result, he continued, the issue of abortion would return to the states to be decided on a state-by-state basis. Senator Clinton rebutted with her own opinion on abortion, strongly supporting Roe v. Wade and a woman’s right to choose. She avowed,

“I will defend Roe v. Wade and I will defend women’s rights to make their own healthcare decisions. We have come too far to have that turn back now” (Politico, 2016).

Even though the Court has upheld their Roe v. Wade ruling for nearly fifty years, the 55 promise of a reversal has never left the political agenda of the Republican Party, due in part to mistakes made by reproductive freedom advocates.

The flawed juricentric approach of the reproductive freedom movement strategies has been detrimental to the progression of women’s liberation. Considering the Court’s inability to enforce their rulings, the hopes of activists that the Supreme Court alone could settle this issue were ill-founded. Until conservatives gain the majority of the

Supreme Court, they will continue to roll back progress through restrictive legislation.

Conservatives have been able to dismantle the provisions of Roe v. Wade and the right to abortion because the right only exists in caselaw from this one case- this grants pro-life advocates the luxury of only needing to overturn one case in order the eliminate legalized abortions. The reproductive freedom movement mistakenly relied solely on the Courts to protect this right which has allowed anti-abortion policymakers to shape the future of reproductive freedom in America.

Another flaw of the approach chosen by reproductive freedom advocates is the complete focus on the issue of abortion. The ability to terminate a pregnancy is but one aspect of reproductive freedom, which is but a part of the overarching struggle for women’s liberation. Reproduction issues are part of a much larger agenda of bodily autonomy that extends to areas that are loosely related to abortion, but that are directly representative of inequality between men and women in America. Women are consistently paid less than men in the same job. According to a 2018 study by Pew

Research Center, women earn only 85% of what men earn. Using this data, women would have to work an extra thirty-nine days in order to ear the same amount that men did the same year (Graf, 2018). Income inequality directly relates to bodily autonomy- in 56 capitalist America, more money means better healthcare which allows citizens to have more control over their bodies. By consistently earning lower salaries for the same job, women are effectively denied equal access to healthcare. These issues illustrate how income and maternity leave directly affect women’s equal treatment in the workplace- an issue that should be taken into account when advocating for reproductive freedom rights.

The ability to control one’s reproduction is about so much more than pregnancy termination. In order to be fully functioning members of society, women must be able to have full control over their bodies in every way, not just regarding abortion.

Reproductive freedom advocates left their movement incomplete when they reduced their agenda to only the issue of abortion.

Reproductive freedom is much more extensive of an issue than just abortion, and is certainly more extensive than the limits of Roe v. Wade. The ability to control one’s reproductive choices affects more than pregnancy termination alone. This issue includes maternity leave in the workplace, access to sex education and contraception, affordable childcare, and custody law for men and women. All of these intertwine with reproduction and contribute to the inequality of women in society. By reducing all of these concerns down to one issue of abortion that is protected by one Supreme Court case, women’s liberation is significantly weakened.

However, shortcomings of past movements have not completely spoiled decades of progress for women’s reproductive freedom. Moving forward, progress must stem from correcting the flaws of the past in future endeavors, not from hopeless preservation of weak caselaw. If Roe v. Wade is overturned, the struggle for abortion rights will be significantly hindered, but not halted. The focus of the reproductive freedom movement 57 cannot be on litigation alone, for the limits of law are institutional and inevitable. Before the reproductive freedom movement turned to the Courts, active resistance against the hegemonic patriarchy occurred beyond the limits of law. Rebels like Margaret Sanger,

Jane network operatives, and so many others gave women the bodily autonomy that was denied to them by conservatives in power. Due to the changing political makeup of the

Supreme Court, Roe v. Wade’s days may be numbered. Women must return to social justice efforts practiced by these movement leaders rather than maintain a damaging juricentric approach. If we leave the fate of reproductive choice up to the Justices that currently sit on the Supreme Court, the decades of progress that have brought women’s reproductive freedom this far will be worthless.

In order to combat the attack on the right to abortion, pro-choice advocates must prioritize women. They must reject the narrow mindset that Roe v. Wade and the right to abortion will liberate women in America, and instead consider the larger agenda of bodily autonomy for all women. By expanding the right to abortion to include broader issues of female bodily autonomy, the movement will be centered around women’s equality and will no longer be limited by the single issue of abortion.

Looking to the future, the feminist agenda should be about bodily autonomy so we can include gender expression, rape culture, and workplace equality for women. This is the path forward. Women need to have full control over their bodies- they will not get that by relying on law alone. We must adopt radical intersectional feminism and do away with narrow overreliance on litigation- because it has failed women and will continue to do so. If we continue to place all our hopes on one court case, anti-abortion conservatives will continue to dismantle decades of efforts for female liberation. Attacking sexism from 58 every angle in every possible way and using all the tools at our disposal is the most effective and viable plan for ensuring reproductive freedom for all women. It will take more time, but it will be far more permanent and effective than mere litigation. 59

References

Adams, G. (1997). Abortion: Evidence of an Issue Evolution. Journal of Political

Science. pp. 718, 723.

An Overview of Abortion Laws. (2020). Guttmacher Institute.

Bagge, P. (2016). Woman Rebel: The Margaret Sanger Story. Drawn & Quarterly.

Baker, J.H. (2011). Margaret Sanger: A Life of Passion. Hill & Wang.

Bernstein, J. L. (2008). The Underground Railroad to Reproductive Freedom- Restrictive

Abortion Laws and the Resulting Backlash. Brooklyn Law Review, 73(4), 1463-

1508.

Davidson, M.D.G. (2016). Black Women’s Bodies, Ideology, and the Public Curriculum

of the Pro- and Anti-Choice Movements in the US. Gender and Education, vol.

30, no. 3, pp. 310–321.

Eskridge, W.N. & Hunter, N.D. (2004). Sexuality, Gender, and the Law. 2nd ed.,

Foundation Press.

Finer, L.B. et al. (2016). Declines in Unintended Pregnancy in the United Sates.

New England Journal of Medicine.

Full Transcript: Third 2016 Presidential Debate. (2016). POLITICO.

Garrow, D.J. (2014). How Roe v. Wade Was Written. Washington & Lee Law Review,

vol. 71, no. 2, pp. 893–924.

Goodwin, M. (2017). Dismantling Reproductive Injustices: The Hyde Amendment &

Criminalization of Self-Induced Abortion. Georgetown Journal of Gender and the

Law, vol. 18, no. 2, p. 279-282.

Gordon, L. (2007). The Moral Property of Women: A History of Birth Control Politics in 60

America. University of Illinois Press.

Graf, N. et al. (2019). The Narrowing, but Persistent, Gender Gap in Pay. Pew Research

Center.

Greenhouse, L. & Siegel, R.B (2011). Before (and After) Roe v. Wade: New Questions

About Backlash. Yale Law School Legal Scholarship Repository.

Kelly, P.J. (1998). Victorian Vice- Review of Imperiled Innocents: Anthony Comstock

and Family Reproduction in Victorian America by Nicola Beisel. Reviews in

American History, vol. 26, no. 4, 1998, pp. 717–724.

Klarman, M.J. (1994). How Brown Changed Race Relations: The Backlash Thesis. The

Journal of American History, vol. 81, no. 1.

Kirtz, K. et al. (2010). Jane, an Abortion Service: A Documentary. Distributed by Women

Make Movies.

Lemieux, S.E. (2009). Roe and the Politics of Backlash: Countermobilization Against the

Courts and Abortion Rights Claiming. The College of Saint Rose.

Lepore, J. (2011). What’s next for Planned Parenthood? American Chronicles-

Birthright- The New Yorker

Lynxwiler, J. & Gay, D. (1996). The Abortion Attitudes of Black Women: 1972,

1991. Journal of Black Studies.

Malladi, L. (2018). The People of the State of New York v. Margaret H. Sanger

1918. Embryo Project Encyclopedia.

Nash, E. et al. (2018). State Policy Trends 2018: With Roe v. Wade in Jeopardy, States

Continued to Add New Abortion Restrictions. Guttmacher Institute.

O’Donnell, K.S. (2017). Reproducing Jane: Abortion Stories and Women’s Political 61

Histories. Signs: Journal of Women in Culture & Society, vol. 43, no. 1, pp. 77–

96.

Reagan, L.J. (1997). When Abortion Was a Crime: Women, Medicine, and Law in the

United States, 1867-1973. University of California Press.

Roe v. Wade: The Constitutional Right to Access Safe, Legal Abortion. (2020). Planned

Parenthood Action Fund.

Rosenberg, G.N. (2008). The Hollow Hope: Can Courts Bring About Social Change?

University of Chicago Press.

Silverstein, H. (2008). Girls on the Stand: How Courts Fail Pregnant Minors. New York

University Press.

Solinger, R. (2019). Pregnancy and Power: A History of Reproductive Politics in the

United States. New York University Press.

Thomas, E. (2019). How the Supreme Court Justice Sandra Day O’Connor Helped

Preserve Abortion Rights. The New Yorker.

Tone, A. (2001). Devices and Desires: A History of Contraceptives in America. New

York: Hill and Wang.

Wardell, D. (1980). Margaret Sanger: Birth Control’s Successful Revolutionary.

American Journal of Public Health. vol. 70. no. 7.

Who We Are. (2019). Planned Parenthood.

Williams, D.K. (2013). No Happy Medium: The Role of Americans’ Ambivalent View of

Fetal Rights in Political Conflict over Abortion Legalization. Cambridge

University Press. Vol. 25. no. 1. pp. 42–61

Wharton, L. J.; Frietsche, S.; Kolbert, K. (2006). Preserving the Core of Roe: Reflections 62

on Planned Parenthood v. Casey. Yale Journal of Law and Feminism, 18(2), 317-

388.

Zeigler, M. (2015). After Roe: The Lost History of the Abortion Debate. Harvard

University Press.