"LIKE A WITHERED TREE, STRIPPED OF ITS FOLIAGE": WHAT THE ROE COURT MISSED AND WHY IT MATTERS.

• Author: Ehrlich, J. Shoshanna

INTRODUCTION

The Legislature finds that pregnant women contemplating the termination of their right to their relationship with their unborn children ... are faced with making a profound decision most often under stress and pressures ... and that there exists a need for special protection of the rights of such pregnant women.... (1)

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial Birth Abortion] Act recognizes this reality ... it seems unexceptional to conclude that some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. (2)

**********

In 1973 in the landmark case of Roe v. Wade, the Supreme Court faced a constitutional challenge to a criminal abortion statute from the state of Texas, which, like the laws in effect in a majority of states, prohibited abortion unless a doctor determined the procedure was necessary to save the life of a pregnant woman. (3) Relying on a line of cases dating back to 1923 in which it had recognized a constitutional right of privacy with regard to "personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'"-- such as the choice of a marriage partner, the use of contraceptives, and the raising of one's children--the Court held that the "Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman's decision whether or not to terminate a pregnancy." (4)

In locating the right to abortion within this constitutional zone of privacy, the Roe Court focused on "[t]he detriment that the State would impose upon the pregnant woman by denying this choice." (5) Of particular relevance in the present context, in addition to identifying the risk of "medically diagnosable" harms, the Court zeroed in on the potential psychological and emotional risks of carrying an unwanted pregnancy to term:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and stigma of unwed motherhood may be involved. (6) In short, as seen by the Court, the primary harm of a strict criminal antiabortion regime was its power to foist motherhood upon a woman who was not ready or able to assume responsibility for a child at a particular moment in her life.

However sympathetic the Court may have been to the plight of a woman facing an unplanned pregnancy, it also made clear that the right to abortion was not absolute and must be "considered against important [state] interests in regulation"; namely, protecting the health of the pregnant woman and the potentiality of life. (7) Aware of the "sensitive and emotional nature" of this balancing task given the "vigorous opposing views ... and the deep and seemingly absolute convictions that the subject [of abortion] inspires," the Court committed itself to "resolv[ing] the issue by constitutional measurement, free of emotion and predilection." (8)

Reflecting its "earnest" determination to resolve the case in this manner, at the outset of the opinion, the Court announced its intention to inquire into and "place some emphasis upon medical and medical-legal history and what that history reveals about man's attitudes towards the abortion procedure ..." (9) In its review of the history behind the "criminal abortion laws in effect in a majority of states today," the Court stressed that these laws were "of relatively recent vintage" having derived from "statutory changes effected, for the most part, in the latter half of the 19th century," as the result of an active campaign by medical professionals. (10,11)

In examining the "significant role" that the medical profession played in the "enactment of stringent criminal abortion legislation during that period,"" the Court focused on the commitment of physicians to the protection of the unborn. Accordingly, its discussion of this history leaves the reader with the distinct impression that the nation's criminal abortion laws were enacted with the singular aim of halting "such unwarrantable destruction of human life." (12) Although this may well have been a goal of the physicians' activism, (13) this reading of the historical record fails to tell the whole story behind their campaign as it elides the interwoven gendered and racialized tropes that they regularly invoked in support of their goal of making abortion a strict statutory crime. Critically in this regard, not even a careful read of the decision offers a hint that the physicians were seeking to manage the reproductive conduct of the married middle-class woman in order to preserve both the gendered domestic order and the racial character of the nation.

At first glance, this omission may not seem particularly significant. After all, the abortion battle has largely been waged over the legal and moral status of the fetus. Accordingly, the Court's recitation of the historical purpose of the nation's antiabortion laws has neatly meshed with the ongoing debate over the role the law should play in protecting fetal life. However, as the above-quoted passages from the Report of the South Dakota Task Force to Study Abortion and the Supreme Court's decision in Gonzales v. Carhart respectively demonstrate, the antiabortion movement no longer simply opposes abortion "because all human life is sacred." (14) Rather, over the past few decades, this claim has been augmented, if not supplanted, by the increasingly widespread assertion that abortion should be restricted in order to protect women from emotional trauma. (15)

Reversing the Roe Court's narrative regarding the harms of unwanted maternity, proponents of what Reva Siegel refers to as the "woman-protective" antiabortion argument (16) instead focus their critique of abortion on the devastating harms of disrupting the natural bond that exists between a mother and her unborn child. As David C. Reardon, a leading architect of this approach, puts it: "the only way to kill an unborn child is by maiming and traumatizing the child's mother." (17) Given this increasingly popular framing of the antiabortion argument, which seeks to restrict access to abortion for women's own purported good, it is hard to be quite as sanguine about the Court's failure to account for the multi-dimensional origins of the nation's criminal abortion laws. (18)

While it would certainly be too much to argue that a fuller exposition of this history would have somehow prevented the emergence of the "pro-woman" antiabortion position, I nonetheless contend that if the Roe Court had exposed the gendered origins of our criminal abortion laws, the deep paternalism of the woman-protective approach may well have attracted more critical attention than it did prior to 2007 when the Supreme Court's embrace of the abortion regret trope served to focus greater public and scholarly attention on this development. (19) In short, this historic knowledge serves to sharpen our understanding of the longstanding link between the regulation of abortion and the effort to control women's reproductive bodies, thus making it clear that antiabortion activism has never simply been about protecting the fetus.

This Article proceeds in three parts. In Part I, we take a close look at the physicians' mid-nineteenth century campaign to criminalize abortion. Specifically, we will focus on 1) the launch of their campaign; 2) the physicians' framing of their effort as a "bold and manly" appeal; (20) 3) their focus on preserving and protecting women's purity and divinely ordained maternal role; 4) their claim that abortion was rife with injurious impacts as embodied in the view that it marked the uterus with a "stamp of derangement"; (21) and 5) the antiabortion physicians' claim that abortion, as practiced by white, middle-class women, threatened the racial character of the nation. In Part II, we turn to the Court's landmark decision in Roe v. Wade. Zeroing in on its examination of the historical underpinnings of the nation's criminal abortion laws, we first take a look at what the Roe Court said about this history, followed by a discussion of what the Court missed--namely, its elision of the gendered and racialized tropes that permeated the physicians' antiabortion campaign. In Part III, we examine the late twentieth-century emergence of the "pro-woman/pro-life" antiabortion argument. After consideration of the traditional fetal-centric "pro-life" position, we turn to the origins of this new frame. This discussion is followed by a comparison of the core themes of the nineteenth-century physicians' campaign with the contemporary woman-protective antiabortion position. These themes include: 1) that abortion is incompatible with women's true nature, 2) that meaningful consent is an impossibility, and 3) that abortion is inherently harmful to women. In conclusion, this Article circles back to the Roe Court's narrow reading of the physicians' campaign to argue that if the Roe Court had engaged in a more robust reading of this history, the gendered paternalism of the contemporary "pro-woman/pro-life" position would have been rendered far more visible as a discredited approach to pressing women into motherhood.

1. The Medical Campaign to Criminalize Abortion

   In 1821, the state of Connecticut passed.a law making it a crime to provide a woman who was "quick with child" with a "deadly poison" in order to induce a miscarriage. (22) Enacted as part of an omnibus criminal reform statute, this measure was inserted between a provision governing the "intent to kill or rob" and one...