Abortion and the Law in America summary

Let’s begin with a commonly held belief: the US abortion conflict reflects a clash between two sides with incompatible demands. One side argues for the constitutional rights of the fetus. The other argues for the constitutional right of a woman to choose to end the pregnancy. Right?

Well, this is only partially true. These two rights-based claims are the foundations of both the pro-life and pro-choice movements. But Mary Ziegler asserts that, since Roe v. Wade, the conflict has shifted toward debating policy-based claims. These refer to the costs and benefits of abortion, often weighing the positive and negative impacts on women and communities of color. They also tend to philosophically speculate on whether society at large is better or worse off since Roe.

Both movements have pointed to rights-based or policy-based claims at different times and in different ways depending on the cultural and political moment. Sometimes, they strategized well, offering claims that resonated with the American people and lawmakers. Sometimes they didn’t – and they lost ground to the opposing side. And sometimes, their strategies brought them short-term gains but ended up complicating their movement’s future legal progress.

To get a handle on how things got so complicated, let’s start at the beginning – before Roe.

Abortion in the nineteenth century went from being legal to being criminalized in some states by 1880. Opposition to abortion was racially driven. The birth rate of Anglo-Saxon women was plummeting while the population of Southern and Eastern European immigrants was rapidly increasing. Opponents argued that “inferior” genetic stock would overwhelm the country. The solution? Make abortion less accessible through legal means.

In response, early twentieth-century physicians and activists advocated for national legalization, arguing that abortion was often necessary to save women’s lives. But as obstetric care improved in the ’40s and ’50s, this justification grew less credible. The argument shifted to pointing out that making abortion legal and accessible would improve women’s physical and mental health.

Abortion foes responded by insisting that abortion had no health benefits – that it actually caused women emotional trauma. But by the 1960s, both abortion reformers and pro-life groups moved away from making health-based claims, opting instead to focus on rights-based arguments.

That’s because it became clear that invoking women’s constitutional rights was the surest path to victory – particularly after two Supreme Court rulings. 

One of them, Griswold v. Connecticut, was decided in 1965. This case addressed a Connecticut law that banned married couples from using birth control. The Court held that this law violated the Constitution, contending that the right to privacy was broad enough to include married couples’ use of contraceptives.

Still, both sides continued to use cost-benefit strategies to sway politics and public opinion. Pro-choice groups demanded the outright repeal of all abortion restrictions. Newly mobilized feminists, public health professionals, and population controllers insisted that all women should have a legal right to end their pregnancies – regardless of any costs or benefits. Planned Parenthood described abortion as a “medical procedure” that was “the right of every patient.” But pro-life groups maintained that the Constitution already protected a right to life for the unborn child.

In 1973, the abortion-rights lawyers litigating Roe v. Wade highlighted arguments about the rights at stake in the abortion decision – in particular, the right to equality and the right to privacy. They also pointed to certain policy costs and benefits. But, ultimately, it was the rights-based claims that prevailed.

Roe v. Wade held that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” After this historic ruling, rights-based claims seemed more important to the ongoing abortion debate than ever.

Before Roe, some antiabortion activists wanted to propose a constitutional amendment that would outline the rights of the unborn child. But organized antiabortion groups – like the National Right to Life Committee, or NRLC, and Americans United for Life, or AUL – weren’t on board. To them, asking for an amendment was admitting that the Constitution didn’t already protect fetal rights.

But after 1973, that all changed.