The Right to Choose at 25: Looking Back and Ahead

On January 22, 1973, the United States Supreme Court announced its landmark rulings that legalized abortion, Roe v. Wade and Doe v. Bolton. Two days later, a New York Times editorial predicted that the decisions offered “a sound foundation for final and reasonable resolution” of the abortion debate. Yet, in fact, the struggle that had resulted in the Supreme Court victories was far from over. Few in 1973 could have anticipated how explosive the issue of abortion would become and how difficult the right would be to retain. Nor could anyone then have known how much the availability of safe legal abortion would contribute to women’s social, economic, and political advancement in the next quarter of a century.

With the Court’s decisions in Roe and Doe, the barriers to safe legal abortion began to fall: states could no longer criminalize abortion; women could no longer be forced to choose between continuing an unwanted pregnancy or risking their health and lives by seeking an illegal abortion.

The new year marks the 25th anniversary of choice. It is a time to remember what it meant not to have the right to choose, to celebrate our advances, to reaffirm the importance of choice to women’s health and equality, and to recommit ourselves to defending and expanding the right.

1. Establishing the Right to Choose in American Law

Abortion was not, in fact, illegal in most states until the second half of the nineteenth century. Before then, medical experts and other commentators believed that abortion was commonly sought and widely available. By their estimates, there was one abortion for every four live births.

But from the mid-nineteenth century, opposition to abortion began to emerge from several directions. Physicians charged their competitors — mid- wives and folk healers — with performing too frequent and unsafe abortions; the newly formed professional organizations of physicians sought criminal bans. A vocal group of native-born, white Americans condemned abortion as “race suicide” because it lowered their birth rate at a time when they feared being outnumbered by immigrants. Still others, reacting to the new movement for women’s suffrage and other rights, worried that continuing access to abortion would permit women to stray from their traditional roles as wives and mothers. As a result of these converging sentiments, by the end of the century every state had enacted a law criminalizing abortion. Most made an exception only for abortions undertaken to preserve a woman’s life.

These laws did not end abortion but merely sent it underground. The unsafe and unsanitary practice of illegal abortion maimed and killed thousands of women. Finally, in the 1960s, an outcry arose to make abortion legal again. The outcry came from doctors, legal reformers, clergy, and women themselves. The ACLU was in the forefront of this movement.

Led into the struggle by board members like Dorothy Kenyon, a feminist lawyer and judge, the ACLU was the first organization to call for a woman’s right to choose abortion. Kenyon began pressing the issue as early as 1958, and she persisted until 1967, when the board affirmed “the right of a woman to have an abortion.” She also brought the issue to the public, appearing on television talk shows and in print, where she called for an end to “cruel and unconstitutional abortion laws.”

In 1965, the ACLU filed a friend-of-the-court brief in a landmark case that paved the way for the legalization of abortion. That case, Griswold v. Connecticut, challenged Connecticut’s ban on the prescription, sale, or use of contraceptives, even for married couples. In a major legal breakthrough, the Supreme Court decided that restrictions on birth control violated the right to privacy protected by the Constitution.

Griswold greatly encouraged the activists who were waging a two-pronged campaign to legalize abortion. On one front, doctors, lawyers, clergy, and women called for the reform or repeal of state abortion laws. In the mid-1960s, the New York Civil Liberties Union helped organize a campaign to repeal New York’s abortion law. In 1970, New York, Hawaii, Alaska, and Washington became the first states to repeal their abortion laws, making abortion more widely available, although some restrictions remained in effect in all four states.

On a second front, legal reformers brought test cases against criminal abortion laws in federal and state courts all over the nation, in the hope that one case would reach the Supreme Court. In 1971, the high court issued its first decision about abortion in U.S. v. Vuitch, a case argued by the ACLU’s general counsel, Norman Dorsen. Police had arrested Dr. Milan Vuitch in Washington, D.C., claiming that he had violated the District’s law permitting abortions only to preserve a woman’s life or health. Dr. Vuitch argued that only a physician, not a prosecutor, could judge when an abortion was necessary to protect a woman’s life or health. The Supreme Court did not overturn the statute as Vuitch sought, but it held that the burden of proof should be on a prosecutor who brought charges, not on a doctor. The Court also concluded that “health” should be understood to include considerations of psychological as well as physical well-being.

Dorothy Kenyon, the ACLU’s longtime advocate of abortion rights, died at the age of 84 in 1972, a little too soon to see the fruition of her work. In 1973 the Supreme Court decided the two cases that upheld a woman’s right to abortion, Roe v. Wade and Doe v. Bolton. Thanks to the seeds that Kenyon had sown, the ACLU was involved in both cases. Norman Dorsen was among the lawyers representing the plaintiffs in Roe v. Wade, and the ACLU of Georgia organized a trio of women lawyers to represent the plaintiffs in Doe v. Bolton.

Roe v. Wade challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompassed a woman’s decision whether or not to terminate her pregnancy. Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

In Doe v. Bolton, the Supreme Court overturned a Georgia law regulating abortion. The law prohibited abortions except when necessary to preserve a woman’s life or health or in cases of fetal abnormality or rape. Among other conditions, the law also required that all abortions be performed in accredited hospitals and that a hospital committee and two doctors in addition to the woman’s own doctor give their approval. The Court held the Georgia law unconstitutional because it imposed too many restrictions and interfered with a woman’s right to decide, in consultation with her physician, to terminate her pregnancy.

The Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton had nationwide impact. After the Court ruled the Texas and Georgia abortion laws unconstitutional, no other states could enforce similarly restrictive laws. When the Court made its landmark rulings, it was in step with public opinion. Public attitudes had shifted as a result of the decade-long campaign to legalize abortion. In 1968, only 15 percent of Americans favored liberalizing abortion laws; by 1972, 64 percent did.

A year after the Roe and Doe decisions, the ACLU created its Reproductive Freedom Project to defend and extend the right to choose. The Project has participated in almost all of the major Supreme Court cases dealing with reproductive rights since 1973.

2. What the Legalization of Abortion Has Meant for Women

The legalization of abortion has dramatically improved women’s health. Abortion services moved from the back alleys into hygienic facilities staffed by health professionals. High-quality training, the ability of professionals openly to share their expertise with one another, and the development of specialized clinics all enhanced the safety of abortion services. In the early part of this century, an estimated 800,000 illegal abortions took place annually, resulting in 8,000 – 17,000 women’s deaths each year. Thousands of other women suffered severe consequences short of death, including perforations of the uterus, cervical wounds, serious bleeding, infections, poisoning, shock, and gangrene. After legalization, deaths as a result of abortion greatly declined. In 1991, for example, 11 women died as the result of complications arising in legal abortions. Today, one death occurs in every 167,000 legal abortions, compared with one in every 30,000 in 1973.

Once Roe made it possible to obtain safe legal abortions, women have been having abortions earlier in their pregnancies when the health risks are the lowest. In 1973, only 38 percent of abortions were performed at or before eight weeks of pregnancy; in 1997, this percentage has risen to 52, and 89 percent of all abortions occur in the first 12 weeks. Only one percent takes place after 21 weeks. Today, abortion is one of the most commonly performed surgical procedures and is ten times safer than carrying a pregnancy to term.

The availability of safe legal abortion is a cornerstone that supports the remarkable advances women have made in American society in the past quarter of a century. As the Supreme Court observed in reaffirming Roe in 1992, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Not having to endure unwanted childbearing has made a critical difference to women at all stages of life — the teenager who wishes to finish her education, the woman who does not want a child or does not want one yet, the overburdened mother who cannot cope with another child, and the older woman whose grown children have already left home and who mistakenly believed she could no longer conceive.

3. Defending and Expanding Reproductive Freedom

Since the landmark decisions of 1973, the ACLU Reproductive Freedom Project and our sister organizations have worked continuously to defend and expand reproductive rights. Our greatest challenge has been to try to assure that the right to choose extends to those whose lack of political power makes them easy targets for lawmakers: low-income women and young women. The Supreme Court held in 1980 that the federal constitution permits the government to withhold Medicaid funds for virtually all abortions, while continuing to fund all other medically necessary services, including prenatal care and childbirth. Yet bans on public funding for abortion rob low-income women of the right to choose by depriving them of the means to exercise their choice. We therefore turned to the state constitutions in an effort to restore low-income women’s rights. A case won on state constitutional grounds provides strong protection for choice because it is insulated from federal constitutional review and is therefore unaffected by any erosion of the federal right to choose. Because the ACLU and its allies have succeeded in forestalling or overturning a number of funding bans in key states, 40 percent of Medicaid-eligible women once again have abortion coverage.

We have also sought to vindicate the right of low-income women to bear children. We first defended this right by asking the courts to compensate women who had been sterilized without their knowledge or consent. Our victories in such cases contributed to the development of national and local regulations to prevent sterilization abuse. In a more recent incarnation of this battle, we have defended the rights of welfare recipients to bear children without being subject to punitive “child exclusion” policies. Under these policies, federal or state governments attempt to deter childbearing by depriving welfare recipients of increases in benefits if they bear an additional child while receiving public assistance. We have opposed “child exclusions” at both the federal and state levels, and we helped to stop Congress from mandating that the states implement such policies as part of the restructuring of the welfare system in 1996.

Defending the rights of teenagers is another high priority. More than half of the states currently enforce laws that require minors to get permission from their parents or from a court before they can obtain abortions. Because parental involvement laws create unnecessary delays and effectively eliminate the option of abortion for some minors, we work to oppose the passage of such laws and to invalidate them where they are enacted. In the years since Roe, the courts have invalidated parental involvement laws under both the federal and state constitutions.

While fighting restrictions on minors’ access to abortion, we work simultaneously to promote confidential contraceptive services and comprehensive sexuality education. We have repeatedly succeeded in blocking “squeal rules,” which would mandate notice to parents before their teenage children receive contraceptive services. Our victories in these cases set precedents for our current defense of school-based programs in which condoms are made available to students in conjunction with comprehensive sexuality and HIV/AIDS education. Ready access to contraceptives and to medically accurate information can equip teenagers to act responsibly by protecting themselves and their partners from unwanted pregnancy and sexually transmitted disease.

Yet as our efforts to protect the rights of the most vulnerable women continue, the backlash against reproductive choice has escalated on other fronts. Beginning in the mid-1980s, vandalism, bombings, arsons, and assassinations threatened to shut down many abortion providers. Clinics, doctors, and other advocates of choice demanded federal protection and helped to persuade Congress to enact the Freedom of Access to Clinic Entrances Act of 1994 (FACE). This statute prohibits force, threats of force, physical obstruction, and property damage intended to interfere with people obtaining or providing reproductive health services. It does not apply to peaceful praying, picketing, or other free expression by anti-choice demonstrators — so long as these activities do not obstruct physical access to clinics. FACE has reduced but by no means eliminated clinic violence.

In their latest maneuver, opponents of choice have hit upon the powerful tactic of proposing and, in many states, passing bans on safe abortion procedures. Although their sponsors characterize the bans as aimed at a single, “late,” “gruesome” procedure, the bans are not in fact limited to any stage of pregnancy, and they define the conduct to be banned so broadly as to reach an array of safe and common methods of abortion. Recognizing that such bans pose serious threats to reproductive choice, we and other organizations have challenged them in states all over the country. Ten courts to date have enjoined various bans in whole or in part.

Thus the struggle to protect reproductive choice goes on, both to counter persistent attacks and to advance an affirmative agenda of enabling people to make informed and meaningful decisions about reproduction.

4. What You Can Do to Preserve the Right to Choose

If the right to choose is to survive and flourish on its 50th anniversary, those who came of age after Roe must rise to its defense. Current public opinion research indicates that the generations born in the 1960s and afterward take the right for granted. To the extent possible, we must use the 25th anniversary as an opportunity to teach our daughters and sons the history of the struggle for abortion rights and to enlist them in the movement for reproductive freedom.

We must also use the anniversary to defend abortion as a moral choice. Opponents of choice want to return to the time when abortion was illicit and deadly. In the meantime, they do everything possible to keep it shameful, to portray women who have abortions as immoral, inhumane, irresponsible, and frivolous. We must respond with a clear moral defense of abortion. We must remember that it is an act of violence to force an unwilling woman to bear an unwanted child. We must cultivate respect for women as moral actors who make their childbearing decisions based on profound concerns about their own lives and the lives of their families. Women make these decisions within the framework of their own religious beliefs, conscience, and values. We must stress that abortion is a responsible choice for a woman who is both unwilling to continue a pregnancy and unprepared to care for a child.

Finally, legislators in Congress and in the states are often deluged with postcards and letters from abortion opponents, but they say repeatedly that they do not hear enough from their pro-choice constituents. Please take the opportunity presented by the 25th anniversary to urge your federal and state legislators to protect reproductive freedom. Ask your federal legislators to:

SUPPORT the Equity in Prescription Insurance and Contraceptive Coverage Act

This bill is intended to correct a shocking gap in private health insurance: a lack of coverage for contraceptive services and supplies. The bill would require employment-related insurance plans to cover contraceptive services if they cover outpatient medical services in general. If the plans cover prescription drugs in general, they would be required to cover prescription contraceptive drugs and devices. Reducing the out-of-pocket costs of contraceptive services and supplies will enhance the public health, prevent unintended pregnancies, and lessen the need for abortion. Introduced in 1997, this legislation will be considered during the second session of the 105th Congress, which lasts from late January through the fall of 1998. Similar bills are pending in a number of states. Check with your state ACLU affiliate to see if yours is among them and what you can do to get your state legislators to support such legislation.

OPPOSE the Partial-Birth Abortion Ban Act of 1997

In 1997, for the second time, the anti-choice majority in Congress passed the so-called “Partial-Birth Abortion Ban Act.” For the second time, President Clinton vetoed it. Congress is again set to attempt to override the President’s veto.

By making physicians fearful of performing safe, common methods of abortion, the ban would seriously endanger women’s health. Contact your Representatives and Senators and tell them not to override President Clinton’s veto of this dangerous bill. Check with your state ACLU affiliate to see whether you should also be working to defeat such a ban in your state.

OPPOSE The Global “Gag Rule”

Anti-choice members of Congress want to re-impose the global “gag rule”: they seek to prohibit private, non-governmental, or multilateral organizations receiving U.S. funds from administering overseas family planning programs that perform abortion or engage in any abortion-related speech or activity, even using their non-U.S. funds. Proponents of this “gag rule” will make another attempt to impose it in the early months of 1998. They will try to include it in a bill the Administration very much wants to enact — a supplemental appropriations bill that would provide funds for the United States to pay its dues to the United Nations and funds for the International Monetary Fund. Ask your legislators to vote down any attempts to enact a global “gag rule.”

OPPOSE Appropriations Amendments to Restrict Abortion Funding

Every year, anti-choice legislators in Congress target the appropriations bills that fund the various agencies of the federal government and attach amendments that largely prohibit the use of federal funds for abortions. As a result, millions of people who rely on the government for their health care have been denied abortion coverage. They include most Medicaid recipients, federal employees and their dependents, military personnel and their dependents, Native American women, federal prisoners, and low-income residents of Washington, D.C. In 1998, let your legislators know that you want them to oppose these restrictive amendments in appropriations bills. Tell them that the government should not intrude into an area of intimate, private decision-making by influencing people’s options through its fiscal policies. Instead, the government should remain neutral on the issue of childbearing and allow people to make their own decisions.

Whenever you want to find out whether choice is threatened and what you can do to counter the threat, check the ACLU’s Internet site, at http://archive.aclu.org.