Abortion in America The complex history of the Roe vs. Wade controversy Archived article from Nov 9, 2001 By Amy Vames   Although many cases brought before the U.S. Supreme Court -- Dred Scott, Brown vs. Board of Education, to name two -- have played an enormous role in shaping America's political and social landscape, probably none have been as complicated or as unusual as Roe vs. Wade. The landmark case, handed down in 1973, allowed unlimited access to abortion during a woman's first trimester of pregnancy while giving states the ability to regulate abortions that take place in the second and third trimesters. A new book by N.E.H. Hull and Peter Charles Hoffer examines Roe vs. Wade from a historical perspective Photo by Addison Geary A new book, "Roe v. Wade: The Abortion Rights Controversy in American History" (University Press of Kansas), by N.E.H. Hull and her husband, Peter Charles Hoffer, looks at Roe vs. Wade not just in terms of its impact on the law but also its impact on many other aspects of American life. "Roe is unique in how it brings together so many issues: social attitudes, legal concepts, gender, religion, politics, medicine and technology," says Hull, a professor at the School of Law-Camden. Hull says she and Hoffer, who teaches history at the University of Georgia, wanted to look at the case in as fair a light as possible and to give a voice to both sides of the debate. "Most books on the subject take a side," Hull notes. "We tried to not be advocates for one side or the other." The book is the latest in the Landmark Law Cases and American Society series that Hull and Hoffer edit for the University Press of Kansas. The series aims to put significant legal cases in a social-historical context. The books are intended not only for scholars and students but for anyone with an interest in law and American history, Hull says, and are written in accessible, jargon-free language. Early legislation Hull and Hoffer set the stage for Roe vs. Wade by examining the history of abortion in America. Although abortion has been practiced by women since ancient times, governmental efforts to criminalize it did not begin in America until 1821, when Connecticut became the first state to pass a law prohibiting anyone from causing a woman to abort a child. Throughout the 1800s, other states, such as California, Georgia, Massachusetts, New Jersey, New York and Texas, followed suit. While women who sought and/or obtained abortions were not themselves prosecuted, Hull says, these laws reflected the notion of both lawmakers and doctors that women had to be protected from abortionists who concocted dangerous, often lethal, herbal potions intended to terminate a pregnancy. Although no federal legislation was ever enacted prohibiting abortions, the 1873 federal Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use, better known as the Comstock laws, prohibited the importation or dissemination of contraceptive devices in the United States. Soon after, more than 20 states enacted their own Comstock laws. Toward the end of the 19th century and into the early 20th century, women began to demand equal rights, such as the right to vote, and equal status in society. Concurrently, birth control methods were refined and medical technology made abortion a much safer procedure. As a result, the medical establishment shifted its view on abortion. Doctors who had once believed that women needed to be protected from "quacks" providing abortions now saw the benefits that birth control and, in some cases, abortion could have for women without endangering their lives. Many physicians began to support such organizations as Margaret Sanger's American Birth Control League, which later became Planned Parenthood. Lawmakers, however, fearing greater autonomy and freedom for women, continued to pass anti-abortion laws, and religious leaders continued to rail against the evils of abortion, says Hull. Since they could no longer claim they were trying to protect women's lives, abortion opponents now emphasized the unborn children that could be saved. The Supreme Court steps in As the abortion debate raged on, the U.S. Supreme Court in 1965 laid the groundwork for its Roe vs. Wade decision in the case of Griswold vs. Connecticut, which struck down that state's anti-contraception laws for married couples. Writing for the majority, Justice William O. Douglas declared that the 14th Amendment's due process clause provided a fundamental right to privacy. Eight years later, in the Roe vs. Wade decision, Justice Harry Blackmun, writing for the majority, argued that the right to abortion also could be found in the due process clause. Blackmun went a step further, however, than even the plaintiffs in the case had ever expected: He devised what is known as the "trimester scheme," in which the court ruled that the state could regulate abortion after the first three months of pregnancy as long as those laws pass a "strict scrutiny" standard. "The trimester scheme had no basis in prior constitutional law," write Hull and Hoffer. "Critics of Roe pointed to the lack of precedent for the trimester apportioning of rights and interests as one of the weakest parts of the decision." The authors acknowledge the legal complexity of the Roe decision and the difficulty anyone who isn't a lawyer might have in trying to understand it. "On occasion, one or another of the justices (usually Brennan or Marshall) made a plea for the Supreme Court to hear the voices and see the plight of ordinary people, but that plea was itself part of a complex and highly technical argument," the authors note. "The court battle over the rights of women to choose abortions and the rights of government to protect fetal life will always be fought in the oxygen-poor altitude of lofty constitutional concepts like due process and equal protection." The controversy continues Hull and Hoffer's book also delves into the ramifications of legalized abortion in American society and chronicles what has happened to abortion rights through the second Clinton administration. Although the authors strove toward equal time for both sides in writing the book, Hull is clearly in the pro-choice camp. She says that although an entire generation of women has now grown up believing in "a woman's right to choose," Roe vs. Wade is "endangered. The original Roe is dead. When it was first handed down, there was an absolute right to a first-trimester abortion. That no longer exists. States can interfere as long as they don't create an undue burden" for the pregnant woman. Meanwhile, parental notification laws, 24-hour waiting periods, the killing of abortion doctors and the bombing of clinics in recent years have created an atmosphere that discourages women from seeking abortions. Hull, who has written about and taught courses on infanticide, sees a connection between this more hostile environment for abortion and an increase in infant killings, particularly those that occur just after birth. Changes in the makeup of the Supreme Court could "either reverse Roe or water it down so much that it would disappear," Hull says. "Now, regulations that can have an adverse impact on a woman's access to abortion are up to whatever state you're in, just as it was in the pre-Roe years." In recent years, moderates in the abortion debate have sought to reach some kind of middle ground in an effort to locate areas that both can agree on. But Hull thinks such attempts are futile. "I wish there were a middle ground, but looking through history, I don't think there is. There can't be when one side sees abortion as murder and the other sees laws regulating it as endangering women's lives."

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