The Supreme Court may overturn Roe v. Wade as early as next month. What will happen to safe, legal abortion? A clip-and-save guide to the future.
Will Roe v Wade go down the drain? I think there's a very distinct possibility that it will, this term. You can count the votes. "-U.S. Supreme Court Justice Harry A. Blackmun in an address to first-year law students at the University of Arkansas on September 13, 1988.
This is a warning that must be taken seriously. Pro-choice Cassandras have been sounding the alarm for years, and we've nodded solemnly, but in our hearts we thought they were being just a little paranoid. Even those of us old enough to remember what it was like before abortion was legal can't quite believe the right could be taken away again. And there are many, many women in this country-anyone under 30, in fact-for whom abortion has virtually always been legal, and who simply accept it as part of the landscape.
You can tell them that in the late 1960s up to 1.2 million illegal abortions took place each year, and that at least five thousand women a year died from criminal abortions. But these are abstractions unless you lived through them. It's hard for today's young women to imagine abortions in dark, dirty rooms that smelled of Clorox, done by doctors who breathed bourbon fumes and copped a feel before they got to work, and warned you not to scream or they'd walk out and leave you alone in the middle of nowhere. Or self-aborting alone in your college dorm room, scared to tell anyone, watching your metal wastebasket fill up with blood, flushing the fetus down the toilet, terrified that it would clog the plumbing and you'd be found out. Or being rushed to the hospital hemorrhaging from a perforated uterus, only to be interrogated by police officers demanding to know where you got the abortion. But that's just the dramatic stuff. What's even harder to convey to people who haven't experienced it is the fear, the guilt, and the humiliation involved in even an uneventful illegal abortion, or the common experience of having to convince a review board of male doctors that you'd commit suicide if they forced you to have this baby.
Could we really go back to all that? Most pro-choice activists agree that, thanks to improved abortion technology, for most women abortion will never again be as life- and health-threatening as it was before Roe v. Wade. However, that doesn't mean millions of women wouldn't face degradation, hardship, and sheer misery if we lost abortion rights. Still, we keep saying, the American public supports legal abortion. And as long as that remains true it's simply unthinkable that women's right to abortion could be taken away. They wouldn't dare.
Congress has demonstrated that, in fact, it wouldn't dare. Except for the Hyde Amendment's cruel denial of Medicaid funds for poor women's abortions, Congress has so far resisted most antichoice attempts to restrict access to abortion. The present danger, as Justice Blackmun warns, is from the Supreme Court. Mindful of the opportunities offered by the altered composition of the Court, the National Right to Life Committee has been developing a rash of abortion litigation in the hopes of getting as many cases as possible up to the Court. Any of these, which include fathers' rights and parental notification and consent cases, could provide an opportunity to sharply limit women's right to abortion. But the case that poses the greatest danger to Roe v. Wade is Webster v. Reproductive Health Services, which the Supreme Court is expected to decide in June. In this case the Court will rule on the constitutionality of a Missouri law, struck down by two lower courts, which restricts the use of public funds and buildings for abortions and counseling, and raises obstacles to abortions after 20 weeks. In addition, the law has a preamble declaring that human life begins at conception, a direct challenge to Roe v. Wade, which decrees that a state "may not adopt one theory of when life begins" in order to justify regulating abortions. In short, Webster offers the Supreme Court an opportunity to overturn Roe, a step encouraged by the Reagan administration in a brief to the court last fall.
Let's say the Supreme Court actually does use this case to strike down Roe v. Wade. What might be the worst-case scenario? The immediate consequence would be to open the way for each state to design its own abortion laws. Six states already have existing provisions in their laws which specify that, should Roe be overturned, abortion would automatically be outlawed. When the dust settles, the landscape could look something like this: In a large bloc of states in the center and south of the country, abortion could be banned except when the woman's life is in danger. States around the edges of the bloc -California, Hawaii, Alaska, Washington, Oregon, Vermont, and New York- might still provide legal abortions, but they could impose residency requirements and possibly a five-day waiting period. The few remaining states would fall somewhere in between, providing abortions under various combinations of restrictions. Abortion clinics in all but a handful of states would virtually disappear, banned in the illegal states and driven out of business in the restricted states. Instead, abortions would be performed in hospitals so that the procedures and the attending physicians could be monitored. State and hospital review boards would again become standard, ruling on whether an individual woman should be granted an abortion after rape or incest, and determining whether she was likely to suffer long-term health damage from carrying her pregnancy to term.
Jeanette's decision: Her boyfriend, Victor, was never so tender as when, at age 15, she accidentally became pregnant. A year later, their love faded and Jeanette moved home to raise Chastity alone.
If even a few states recriminalize abortion, the legal implications will boggle the mind. Not only would abortion providers and counselors be liable to prosecution, but legal and pro-choice experts agree that, in spite of George Bush's fatuous statement to the contrary, once the power is returned to the states, women seeking abortions would almost certainly be prosecuted as well. The mare's nest of litigation that would result could clog the courts for years to come. Bizarre situations suggest themselves. Clergy and feminist counseling services in illegal states would be committing a state crime if they referred women to abortion facilities in legal states; so, presumably, would women crossing state lines for the purpose of having an abortion. Could we expect police officers searching hospital emergency rooms for victims of incomplete abortions? SWAT teams bursting into college dorm rooms where women are performing menstrual extractions?
Such scenarios may sound fantastic. But then, who could have imagined that in 1989 women trying to enter abortion clinics would have to be escorted through screaming, hostile mobs by flying wedges of protectors? The difference is the current militancy of the antichoice movement, with its underpinning of fetal life ideology. In the decades before legal abortion, public attitudes toward it tended to be almost laissez-faire. Even in the pronatalist '50s, when abortion was viewed as morally repugnant and downright un-American, there was no organized crusade against it. And in the '60s, abortion was tolerated as a kind of necessary evil so long as it remained out of sight and under control. In the absence of a fetal life ideology, abortion was just another illegal activity. Even law-enforcement officials often looked the other way. However, a climate in which abortion is made illegal as the result of the efforts of an organized antiabortion movement would be very different indeed. "This is the worst possible kind of situation," says Frances Kissling of Catholics for a Free Choice, "because you have a fanatical antichoice movement with 16 years of organizing under its belt, committed to seeing that abortions don't take place. You'll see a kind of organized vigilance, complete with sophisticated monitoring, hot lines, 800 numbers, and all the rest."
Part of that watchguard's zeal would extend to methods that could potentially prevent abortions in the first place, specifically to RU 486, the much-touted French "month-after" pill. Opposition to this drug from antichoice forces is so ferocious that no U.S. drug company will touch it for fear of boycott-even if they could get insurance to cover testing it, which is highly unlikely. And there's no hopping across the Atlantic to pick up a black-market supply of the drug. In France RU 486 is distributed only in certain clinics, under tightly controlled circumstances; every vial is numbered and must be accounted for to the manufacturer. In addition, obtaining the drug requires four clinic visits over a period of several weeks. In any event, the idea of a black market in RU 486 makes most pro-choice people uneasy. Cynthia Pearson of the National Women's Health Network (NWHN) is eager to have the drug available in this country, but even she warns that "the big risk is in using RU 486 too far along in a pregnancy. Even one day past seven weeks is too dangerous because you have such a high failure rate. Even now, women in this country who are desperate are bringing in doctored sonograms in order to get abortions. That's why having RU 486 available on a black market, without monitoring, could be disastrous."
Still, even if one can't depend on France, won't there be other countries where at least some women-those who are over 18 and have a bit of money-can get a safe abortion? Wouldn't Canada be a logical place to go now that its Supreme Court has ruled in favor of women's constitutional right to abortion? Not necessarily. Many pro-choice activists expect Canada's new majority conservative government to start passing restrictive legislation as soon as it can. Some say there'll almost certainly be a residency requirement.
And don't count on going south. Mexico has never been a salutary place to go for an abortion. Abortion is illegal there (it is a Catholic country), and in the best of circumstances, medical conditions are often substandard. Louise Tyrer, vice president for medical affairs for Planned Parenthood, sums it up: "The fact is, your chances of getting a safe, illegal abortion would be far better in the U.S. than anywhere else. Physicians who'd be doing illegal abortions here would be more likely to do them right if only because they wouldn't want to be prosecuted."
What are the prospects of finding someone to perform a safe underground abortion here? In the old, pre-Roe days, although many abortionists were little more than butchers (or, at best, well-meaning, alcoholic incompetents), there was also a network of conscientious and committed physicians willing to risk their professional lives by performing illegal abortions. However, many prochoice activists are dubious that this history would repeat itself. "Before Roe, doctors were radicalized by what they were seeing in emergency rooms," says Victoria Leonard of the NWHN. "But we've had legal abortion for 16 years now, so young doctors haven't seen firsthand the consequences of botched and asceptic abortions-the hemorrhaging, the gangrene. They haven't had the experience of seeing sisters, lovers, and friends having to get hysterectomies because of botched abortions. And most of the doctors old enough to have been turned around by the horror-show abortions of the old days are now too old to be doing them themselves." Without this kind of experience to sharpen their commitment, and in today's increasingly litigious climate, how many of today's young OB/GYNs (male or female) will be willing to risk years of expensive schooling and lucrative careers, not to mention potential incarceration, by performing illegal abortions?
Instead, most feminist health activists predict that if worse does come to worst we will see a rejuvenation of the old feminist self-help networks. After all, the thousands of people who have been working in abortion clinics over the past 16 years have acquired a lot of expertise-and a lot of new technology. That latter element is the crucial difference between a pre- and post-Roe climate. The pro-choice movement tends to downplay the revolutionary effects of the new abortion technology, probably fearing that without the specter of thousands of deaths from illegal abortion, the prochoice public will not be mobilized into action. They also point out that all the conditions that have historically led women to resort to desperate measures to terminate their pregnancies-poverty, isolation, ignorance, and lack of support-are still true for two populations of Americans: women in rural areas, and minors. In fact, these women are already living out something very like the post-Roe worst-case scenario. As of 1985, a staggering 91 percent of non-metropolitan counties in the United States had no abortion providers. Add to that the fact that 37 states deny state funds for the procedure, and you have stark evidence that large numbers of women have virtually no access to abortion. Still, thanks to the development of vacuum aspiration abortion and the ready availability of antibiotics, a return to the high mortality rates of the pre-Roe days is virtually impossible. This is not to say that there won't be deaths from asceptic and bungled abortions: isolated, desperate women will abort themselves any way they can, with knitting needles, coat hangers, or whatever they can get their hands on. But the fact that a safe, accessible abortion technology now exists will save thousands of lives.
Two methods of abortion will likely go underground with pro-choice activists: vacuum aspiration and menstrual extraction. Both employ suction to empty the uterus, a dramatic improvement over traditional curettage, which involves scraping the uterus with a sharp instrument. Most experts agree that in an illegal situation vacuum aspiration, a first-trimester technique that requires only a flexible plastic tube ("cannula") and a suction device, would be the method preferred by everyone performing underground abortions, good guys and bad guys alike. "Anyone who could get their hands on an electric suction machine would be in business," says Cynthia Pearson of the NWHN. "People will bend over backwards to use a suction cannula because everyone understands the risk of puncturing a uterus with a curette."
Menstrual extraction, a gentler, more time-consuming procedure, is performed early on, immediately after a missed period. It involves a very narrow cannula and a milder suction. It's best suited for use in groups of women who learn the technique together. One of the best sources on menstrual extraction can be found in Suzanne Gage's book When Birth Control Fails, published in 1979 by Speculum Press and distributed by the Federation of Feminist Women's Health Centers (FFWHC) in Los Angeles. Unfortunately, the book is now out of print, but Carol Downer, executive director of the FFWHC and one of the pioneers of this technique, vows the group could get the book back in print in the blink of an eye if it's needed.
Theoretically both vacuum aspiration and menstrual extraction could be adapted for home use. However, both techniques do require some training and experience, neither can be done alone, and there are risks-of incomplete abortion, of infection, and of perforating the uterus. Still, the techniques of suction abortion could be taught in a way curettage could not. Already some activists are talking about the possibility of distributing abortion information by means of videocassettes and computer networks. Frances Kissling likes to envision a huge underground of activist women "learning how to do menstrual extractions and vacuum aspiration abortions, mothers teaching their daughters, sub rosa classes at campus women's centers."
Such idealistic visions of an underground may be a bit farfetched, but it seems clear that abortion will not disappear if Roe is overturned: it would become less safe, less accessible, legally risky, more expensive, and, just as importantly, the social consequences would be catastrophic. With an increase in the birth rate, maternal and infant deaths would also rise. The National Abortion Federation maintains that pre-Roe, 53 percent more maternal deaths were attributable to childbirth. In the absence of genetic screening to detect fetal abnormalities, severely disabled infants would have to be carried to term, only to die shortly after birth. Pregnant women who are HIV positive would be forced to deliver their babies, with the result that pediatric AIDS wards would be burdened beyond their already strained capacities. And since 26 percent of the 1.6 million women who get abortions every year are between the ages of 15 and 19, we can expect a corresponding explosion of births in that population. The toll on the young women, their children, and the inadequate social systems that support them would be disastrous.
This grim-and all too likely-vision of the future does not indicate a victory by antiabortion forces over the hearts and minds of the U.S. public. Even in 1982, with an antichoice majority in the Senate for the first time in history, Strom Thurmond (an avowed foe of abortion) as chairman of the judiciary, and a president who ran on an antiabortion plank, the antichoice movement still failed to get a Human Life Amendment through Congress. In 1983, they tried again, and failed. In the 16 years since Roe v. Wade, public support for legal abortion has remained solid. Still, the polls, especially recently, have been confusing, yielding what look like contradictory percentages, depending on how the pollsters frame their questions. The U.S. public clearly vacillates about the circumstances under which abortion should be legal, and the degree to which the choice should be left in the hands of individual women. But the National Opinion Research Center, a polling organization connected with the University of Chicago that has been asking the same questions about abortion for over 20 years, analyzes the public mood this way: 10 percent of the public is dead set against abortion in almost all circumstances; 30 percent is for abortion on demand; and the remaining 60 percent wavers back and forth.
What's alarming is that this fanatical minority, this 10 percent, has already had an impact way out of proportion to its numbers. In the 12 years since the Hyde Amendment eliminated Medicaid funds for abortion, antichoice groups have been chipping steadily away at the states that took up the funding slack, with the result that now only 13 states fund abortions for poor women. In last November's state referenda on abortion, antichoice forces, outspending pro-choice groups by a ratio of 3 to 1, won in Michigan, Arkansas, and Colorado with crude campaigns focusing on taxpayers' unwillingness to support the abortions of welfare recipients. They've also succeeded in getting parental notification or consent laws passed in 24 states. And, using the tactic of highly visible, skillfully orchestrated harassment of abortion clinics, they've created the illusion of a groundswell of popular sentiment against abortion. Even the media has been manipulated into characterizing abortion clinic harassment as the actions of a grass-roots movement of ordinary Americans instead of a well-organized band of religious zealots.
The majority of people who support legal abortion, however, remain silent. Pro-choice groups are currently gearing up to rouse that majority from its complacency with what they're calling "the largest prochoice grass-roots mobilization campaign in history." The National Abortion Rights Action League plans a massive year-long drive to collect the signatures and pledges of support of millions of people. Planned Parenthood has also mounted a petition drive as well as an aggressive information campaign to identify the opposition and, says spokeswoman Lydia Neumann, "make clear that these people stand outside the mainstream of American public opinion."
Will the Supreme Court take note, and how responsive should we expect it to be to public opinion? "The reality is that the Supreme Court has to look at the norms and values of society," says Janet Benshoof, director of the ACLU's Reproductive Freedom Project. "Women's rights cases would not have been decided as favorably in the '50s as in the '70s." Planned Parenthood's Louise Tyrer agrees: "The Supreme Court can't get so far ahead of the troops that it doesn't reflect what the society is thinking, doing, and acting out at any given time."
Even if proponents of choice scrape through this crisis and manage to salvage Roe v. Wade, we ought to be thinking about how the grounds of the debate have shifted. A close look at the polls shows a slight but ominous erosion of support for abortion for women who are unmarried and do not wish to marry, or who don't want anymore children, or who are too poor to support more children-a composite portrait of a woman who is young, poor, and sexual. Women who are helpless victims of a life-threatening illness, rape, or incest are granted sympathy and support for their abortions, but the public is increasingly uneasy about the idea of women using abortion as a means of exerting control over their lives.
In this "second wave" of pronatalism, when idealization of motherhood and family appears to be engulfing everyone from George Bush to Germaine Greer, it's not surprising that we're seeing a clear retreat from the idea-never very popular-of abortion on demand, regardless of the circumstances. What's at stake in this new stage of the abortion battle is what's always been the heart of the issue: women's power, their complete power, over their reproductive lives. As Janet Benshoof has said, "There's obviously something very threatening about the empowerment of women when you see that the one Supreme Court decision that gives women more power over their lives than anything else in two hundred years is the only constitutional right that the government has ever asked to have taken away."
Brett Harvey writes frequently about reproductive rights. This is her first piece for Mother Jones.