Roe v. Wade's 40th Anniversary: a moment of truth for the antiabortion-rights movement?

AuthorBorgmann, Caitlin E.
Position40th Anniversary of Roe v. Wade Commemorative Articles


In the forty years since the Supreme Court decided Roe v. Wade, (1) the antiabortion-rights movement has pursued a strategy of incrementally whittling away at the right to abortion. Until the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the right to abortion, (2) the movement still harbored hopes of overturning Roe and passing a federal "Human Life Amendment" that would treat embryos and fetuses as constitutional persons. But alongside these efforts, and single-mindedly once Casey was decided, the mainstream anti-abortion-rights movement has sought to change "hearts and minds" about abortion by giving it disfavored treatment in the law through as many channels as possible, without actually banning the procedure. Advocates have pushed a steady stream of abortion restrictions short of outright bans through state legislatures, and sometimes Congress. They have also pursued measures that aim to enhance the legal status of embryos and fetuses in areas outside of abortion, in the hopes that abortion will come to be seen as an unacceptable legal anomaly. These measures include fetal homicide laws and bans on human cloning and embryonic stem cell research. (3) Leaders of the mainstream movement believe that this incrementalist strategy has served to keep the issue alive in the public consciousness and will gradually turn the tide of public opinion against the procedure. (4)

The incrementalist strategy has been successful in some respects. The approach scored a major victory when, in Casey, the Supreme Court upheld Roe but weakened the constitutional test for abortion restrictions by supplanting the former strict scrutiny test with the more lenient "undue burden" standard. The Court applied this test to uphold several provisions of Pennsylvania's omnibus abortion law. In Casey's wake, advocates have successfully lobbied for copycat versions of these Casey-approved measures, including state-scripted counseling mandates, waiting periods, and parental involvement requirements for minors. A large majority of states now enforce at least one of these restrictions. At the same time, Casey opened the door to experimentation in restrictions that might fall short of an impermissible "undue burden" on abortion rights. Restrictions beyond the Casey template, including ultrasound requirements and onerous abortion facility regulations, have been enacted in a smaller number of states.

The mainstream anti-abortion-rights movement, encouraged by Casey, has pursued legislation calculated to appeal to a public that generally favors abortion rights, albeit with some restrictions. In advocating for these incremental measures, the anti-abortion-rights movement has not always been forthright about its ultimate goal to ban all abortions. (5) Thus, laws mandating counseling designed to dissuade women from having abortions are presented as fostering "informed consent." Waiting period laws appear to give women the opportunity to reflect on an important decision. Requirements that teens involve their parents or a court before opting for abortion purportedly promote family communication and protect young people from rash decision-making. Anti-abortion-rights leaders in a 2007 strategy memo described these types of laws as "helpful legal changes" that serve to "keep the abortion issue alive" and to "change hearts and minds" about abortion, paving the way for a future ban. (6) When speaking to the public, however, the mainstream movement makes broad and vague appeals to protecting "life," keeping its more radical agenda under wraps.

The familiar refrain that "life begins at conception" is a politically favorable way for the anti-abortion movement to frame its mission. Like a Rorschach inkblot, "life" is a murky term that can be interpreted to mean many things. (7) Importantly, "life" has a "thick" sense, which evokes familial and emotional ties, and moral and spiritual beliefs. For most people, the notion of "personhood" entails this thick sense of life. But these aspects of life do not describe all embryo or fetus, which, while clearly "living" in a biological or "thin" sense, is not yet capable of these kinds of attachments. The antiabortion-rights movement trades on the thick sense of life, even as it can commit only to the thin version (8)

But the incremental approach comes at the cost of internal consistency, for ultimately the anti-abortion-rights movement seeks to have all the legal rights of personhood vest at conception. If a zygote or embryo from its earliest stages has the legal rights of a person, then abortion is murder, and incremental restrictions, which do not prevent abortion, are morally untenable. The antiabortion-rights movement should even reject bans that include exceptions for cases of rape and incest, or for the woman's health. (9)

Advocates outside of the mainstream anti-abortion-rights movement have chafed under the inconsistency of the incremental approach, viewing it as too cautious and as morally questionable. The incrementalist approach has thus created a rift between radicals and incrementalists in the anti-abortion-rights movement. The radicals prefer to go for broke by pushing for complete bans that would invite the Supreme Court to overturn Roe v. Wade completely. The incrementalists, believing that neither the public nor the Court are ready to eliminate all constitutional protection for abortion, seek to dismantle Roe in piecemeal fashion.

Internal strife is not the only pressure confronting supporters of the incremental approach. Many states have enacted some or all of the Casey-approved restrictions, and advocates are running out of new incremental measures that the public is likely to accept. But even if their creativity and the public's appetite were boundless, incremental measures by definition would never satisfy proponents' ultimate goal--to ban all abortions.

Recent state legislative sessions have suggested that the incremental approach is reaching its limits. The last few years have seen a proliferation of proposals that directly violate Roe v. Wade, including "personhood" measures, which grant the full legal rights of persons to embryos and fetuses from the moment of fertilization; (10) bills that would ban abortions beginning when the embryonic heartbeat is audible; II prohibitions on abortion for purposes of sex selection or genetic fetal anomalies; (12) and bans on abortions starting at eighteen to twenty weeks of pregnancy, premised on the dubious assertion that fetuses can feel pain at this stage. (13)

The "fetal pain" bans are among the only restrictions of this type that the incrementalists support. (14) These bans are unconstitutional under Roe because they prohibit some pre-viability abortions. But, because they apply relatively late in pregnancy, so far they have had little effect on the availability of abortions and have not attracted much public (or even legal) opposition. (15) By inviting the Court to reject the legal significance of viability, proponents see the possibility of at least an important symbolic victory.

But symbolic victories are not the end game for abortion-rights opponents. Serious progress toward their aim will require moving the line for proposed bans more decisively toward the first trimester, a gamble they have so far been loathe to take. The incremental approach has left its supporters in a sort of Zeno's paradox, perpetually pursuing restrictions that get them only halfway from the political present to their goal, and thus never reaching it. Sooner or later, the anti-abortion movement will reach a moment of truth, when it must put aside the incrementalist strategy and openly pursue its goal of banning abortion altogether. Now, forty years after the Supreme Court recognized a constitutional right to abortion, that moment may have arrived.

Part I of this Article provides a short overview of anti-abortion-rights activism before Roe v. Wade. Part II explains how the incrementalist strategy developed as a response to Roe. Part III discusses Casey's impact in entrenching the incrementalist approach as the mainstream movement's primary strategy. Part IV examines internal and external pressures now testing the incremental strategy, including impatience and dissension among more radical factions within the movement, as well as the limits of what kinds of laws the general public is likely to tolerate. The Article concludes with some thoughts about where the anti-abortion-rights movement goes from here.


    Abortion was not statutorily criminalized, or even regulated, in the United States until the nineteenth century. (16) Criminal bans were ushered in during the second half of the nineteenth century by the "first right-to-life movement." This movement was led by physicians who sought to wrest control over the performance of abortions from healers such as midwives and homeopaths, whom they considered "quacks." (17) The doctors based their opposition to abortion on the pretense that they possessed new scientific evidence about fetal development that demonstrated the immorality of abortion. (18) (As Kristin Luker points out, there in fact had been no discoveries about fetal development that differed in any significant way from what laypeople, including women, already knew.) (19) Nevertheless, the doctors did not seek to make abortion completely illegal, but rather sought to reserve for themselves the power to decide whether abortions should be allowed in individual cases. (20) Luker describes this as an "ideological sleight of hand" that continued to influence the abortion debate...

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