Roe v. Wade came down in January 1973, which makes it just a few months shy of 50 years old. It is one of the few Supreme Court cases that have made it into the lexicon of ordinary Americans. The pseudonym of that original anonymous plaintiff has become shorthand for the idea that women in the United States have a right to abortion. Now, the name Roe v. Wade will be a marker of a right that was taken away by this current Supreme Court—a marker of the court going in the direction of taking away rights, instead of granting them. In his concurrence with Friday’s opinion, Justice Clarence Thomas said he also thought the rights to gay intimacy, gay marriage, and birth control should be reconsidered.
Overturning Roe has been the right’s explicit plan all along, and its fate had been clear since the country watched the Senate confirm Amy Coney Barrett as the third justice nominated by Donald Trump to the bench fewer than two months before the presidential election. This was after Republicans—led by Mitch McConnell—held a court seat open for nearly a year before a presidential election on the grounds that American voters should get to decide who is on the Supreme Court. There have been plenty of explanations of the shenanigans the party had to pull to seat these justices, plenty of pieces that break down the structural imperfections of our political system. The upshot of all of this is that a set of people put in power by a minority of Americans will get to make the rules for everybody now, and today we are learning what those rules are going to be.
Over the past several months, spurred by the appointment of Amy Coney Barrett and December’s arguments that resulted in the Dobbs decision delivered today, I researched and made a season of Slow Burn that looked back at the years before Roe v. Wade. I wanted to understand what the push for abortion rights had been like, what the political environment had been in the lead-up, and what the Supreme Court that had given people this right had been like. And today, as Roe v. Wade is overturned, I wanted to share what I learned.
First, the right to abortion is not about the Constitution. Fundamentally, the question of whether women have a right to abortion in this country is a question of power. That is clear in every element of how the decision came to be, and in how it is coming undone. Women’s lack of power in our political system is the reason the right to abortion is missing from the Constitution in the first place, and it’s the reason the nine justices of the U.S. Supreme Court (all of them men at the time) ultimately had to consider it.
The seven Supreme Court justices who voted in favor of the decision that established the right to terminate a pregnancy, at least in the first two trimesters, grounded their reasoning in the 14th Amendment. The decision is most frequently explained as a regard for the privacy between a woman and her doctor, but in looking at the right and the amendment it is based in, I’ve come to think of it a bit differently. The 14th Amendment came to be as the American government was trying to ensure that former slaves would gain the necessary protections and freedoms as they transitioned to being citizens. It guarantees a right to due process of law in matters of life, liberty, and property—rights that are understood as essential to one’s freedom. Among these unenumerated rights are the building blocks of family autonomy: the right to choose whom to marry, the right to stay married, the right to have children, the right for those children not to be taken away from you. And the right not to have children, too.
It’s not a mistake that the court found this right in that amendment, an amendment with this kind of history, the details of which are hard to stomach. The stories of what women went through as they tried to gain family autonomy—or failed to do so—are harrowing. Not only did women go through the extreme pain and stress and complications that illegal abortion brings with it, but thousands of them died from the procedure in the years before Roe. The exact number of deaths is difficult to pin down, but the circumstances of each were awful. Consider the story of Gerri Santoro, a woman who was left to bleed out in a hotel room after an abortion attempted by her lover went horribly awry. (A photo of her naked, bleeding body was published in Ms. magazine in 1973, to some consternation.) And stories of illegal abortion must also be paired with stories of forced motherhood: I have recommended Ann Fessler’s incredibly reported book The Girls Who Went Away to anyone grappling with the question of whether adoption might be a reasonable solution to unwanted pregnancy.
Reporting this season has given me a window into understanding that, in many ways, the alliance between the Republican Party and those who oppose abortion has been at the very least partially opportunistic from the very start. But it’s also shown me that there are plenty of people who genuinely believe, in good faith and with their entire beings, that life starts at conception and that abortions are murders. I think I gained some actual understanding of why they are not completely unreasonable to think this.
What strikes me most about abortion—and the right to it—as Roe falls today is something that many people have raised, but I think historian Jill Lepore put best. She called abortion, along with guns, “blood issues.” (Not incidentally, the court released a decision widening access to guns yesterday.) My interpretation of this label, mixed in with the wisdom of others I spoke to for the show, is that the stakes of abortion are some of the highest in our politics. It is about life and death, and it is also about morality. What you think about the issue of abortion informs who you are, and that connection has only gotten stronger in the decades since Roe was decided.
This is why it is so hard to find anything resembling a principled compromise on this topic. The original decision in Roe v. Wade actually tried. Roe considered the issue of aborting a pregnancy within each of the three trimesters. The justices in the majority found that in the first two, the rights of the woman won out over the rights of the fetus. In the third trimester, after the fetus had become viable, they assessed that the rights of the fetus were sufficiently robust that states could limit abortion if they believed that appropriate. Roe was an explicit attempt at a compromise. It’s just not really thought of that way. And it certainly hasn’t been treated that way by its opponents.
Where does this leave us? The people I have thought about the most over these past months as I’ve worked on this project are three women who shared their stories about what life was like for politically active women in the early 1970s: Nancy Stearns, Pat Romney, and Ann Hill. I asked Pat if the work she was telling me about—her work with an organization called the Third World Women’s Alliance—was her full-time job, if they were her employer. Certainly not, she said. But “my first appointment book was when I was working with the Third World Women’s Alliance,” she told me. She remembers that planner so clearly because “almost every night was booked up with committee meetings and rallies and demonstrations and tasks to do. It was a lot of work.” This was the same story I heard from Nancy, a lawyer whose work for the movement was so consuming that it essentially became her personal life, too. I think about Ann Hill spending all of her time recruiting plaintiffs for the case she was bringing, and delighting in each additional name, even though it meant she would eventually have to retype the entire list of names on a typewriter. These women understood the stakes, and they acted accordingly.
What I have learned above all else is that abortion is a blood issue. It is about who has power and who does not. If you want the right to abortion, you are going to have to fight for it. There is no compromise.
For more on the legal fight that led to the original Roe v. Wade decision, listen to the latest episode of Slow Burn.