Since the Supreme Court Roe v. Wade judges by looking at how abortion became legal
The future of abortion, which is always a controversial issue, will be debated in the Supreme Court on December 1st. Arguments against Roe versus Wade and Planned Parenthood versus Casey are planned, the most important court decisions in the last half century that guarantee a woman’s right to abortion nationwide. // AP, J. Scott Applewhite
Abortion has been a constitutional right in the United States for nearly half a century. But this week the US Supreme Court hears arguments in a Mississippi case directly contesting Roe v Wade and subsequent rulings.
Throughout these judgments, it has been stated that a woman has a constitutional right to an abortion in the first two trimesters of pregnancy if a fetus cannot survive outside the uterus. But since this abortion is in doubt at the moment, it’s worth looking back at its history.
In most states, abortion did not become illegal until the mid to late 19th century. But by the 1960s, like childbirth, abortion had become a safe procedure when performed by a doctor, and women entered the world of work in increasing numbers.
Yet pregnancy out of wedlock was considered scandalous and women increasingly tried to have abortions even though they were illegal. In addition, pregnancy for women often meant a stunted education and with it their chances of getting a good job. Because of these phenomena, illegal abortion began to skyrocket and became a public health problem. Estimates go from 200,000 to over a million per year, a range that was so large precisely because illegal procedures were often not documented.
Back then, young women could see the dangers for themselves. Anyone living in a dorm at the time might have seen one or more dorm women who were bleeding from a botched illegal abortion carried out of the dormitory.
George Frampton was working the year his boss Roe v. Wade wrote, for Justice Harry Blackmun, and he recalls that until Roe, “these abortions had to be done undercover if you had a personable doctor” and you were “wealthy enough”. But most abortions were illegal and mostly took place “in back rooms by abortion quacks” with “raw tools” and “without hygiene”.
From the early to mid-1960s, Frampton said, thousands of women in major cities came to hospitals, bleeding and often mutilated.
One woman recalled “the excruciatingly painful” in an interview with NPR [illegal] Procedure, “described it as” the equivalent of sticking a hot poker in your uterus and scraping the walls off “.
The result, according to Frampton, was that by the mid-1960s a reform movement had begun that aimed to decriminalize abortions and treat them like other medical procedures. The reform movement was fueled by doctors who were concerned about the effects of illegal abortions on women’s health. Soon the American Law Institute – a highly respected group of lawyers, judges, and scholars – published a model abortion reform law that was endorsed by major medical groups, including the American Medical Association.
Many states then began to relax their abortion restrictions. Four states legalized abortion, and about a dozen adopted some form of model law allowing abortions for rape, incest, and fetal abnormalities, and to save the mother’s life or health.
There was a small backlash in the early 1970s, when nearly half of the states had passed reform laws. Still, as Frampton notes, “it wasn’t a big political or ideological issue at all”.
In fact, in 1973 the judges were mostly establishment Conservatives. Six were Republican appointees, including the court’s only Catholic. And five were generally conservative as they were then defined, including four that were appointed by President Richard Nixon. Ultimately, the court ruled 7-2 that abortion is a private matter that must be decided by a woman during the first two trimesters of her pregnancy.
That framework has remained in effect since then and the court has repeatedly upheld this standard. In 1992, she reiterated the framework but said states could put some limited restrictions in place – such as a 24-hour waiting period – as long as the restrictions were a woman’s right to abortion.
Frampton says the court set the framework for viability based on medical consensus that a fetus could not survive outside of the uterus until the final trimester. He states that “the judges thought that this would forever remove the constitutional issues of abortion.”
Although many thought that the viability of the fetus could change significantly, it did not. But in the years that followed, backlash to the court’s abortion decisions grew louder until the Republican Party, which Roe had previously supported, officially abandoned them in 1984.
If one looks at the politicization of the Supreme Court nomination and certification process in recent years, the question arises whether Roe contributed to this polarization. What does Frampton think?
“I’m afraid,” he admits, “this analysis is absolutely spot on [the justices] saw it as a very important breakthrough constitutional decision, but had no idea it was going to be so politicized and so upset. “
Why is abortion such a controversial issue in the United States but not in so many other countries where abortion is now legal? Florida State University law professor Mary Ziegler, author of Abortion and the Law in America, points out that in many countries the issue of abortion has been resolved democratically – in some countries through a national referendum, in others through parliamentary votes, and in some , from the courts. However, in most of these countries, with a few exceptions, abortions must be done earlier, in the 12th, 15th or 18th week.
But – and it’s a big but – in most of these countries, unlike the United States, national health insurance guarantees easy access to abortions.
Finally, Ziegler notes, “There are many people in the United States who have an interest in our polarized politics. … It’s a way of raising money. It’s a way of getting people to the polls.”
And it is conspicuous, she adds, how little our policies correspond to what most people say they want. Opinion polls consistently show that a large majority of Americans are in favor of the right to abortion in all or most of the cases. A poll by the Pew Research Center last May found that 6 in 10 Americans say abortion should be legal in all or most cases. And a Washington Post-ABC poll conducted last month found Americans say by an approximate 2 to 1 lead that the Supreme Court should uphold its landmark Roe v. Wade ruling.
But a 2019 NPR survey shows how complex – and even contradicting – opinions are about abortion. The poll found that 77% of Americans support Roe. However, in the second trimester, that number dropped to 34%. Other surveys had significantly higher support for second trimester abortions. A Reuters poll found the number was 47% in 2021. And an Associated Press poll found that 49% of respondents were in favor of legal abortion for anyone who wants “for any reason,” while 50% said they shouldn’t. And 86% said they would encourage abortion at any time during pregnancy to protect the woman’s life or health.
All of this seems to suggest that there is overwhelming support for abortion rights early in pregnancy, but less support later on, and overwhelming support for abortion at any time to protect the mother’s life, or most importantly, the health of the mother. However, this is not the place where the abortion debate takes place in the 25 or so states that have passed very tough anti-abortion laws, including outright bans, in hopes that the Supreme Court will overthrow Roe.
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