From the issue dated November 2, 2001
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Teaching Above the Fray: a Multidisciplinary Approach to 'Roe v. Wade'By N.E.H. HULL and PETER CHARLES HOFFEREarly one evening in February 1970, at Columbo's Pizzeria in Dallas, three women sat at a table and talked.
Opposite McCorvey sat the other women, dressed, she recalled, in two-piece business suits. One, tall and dark-eyed, with a round, attractive face and shag-cut brown hair, had arranged the meeting and listened attentively. The other, blonde, with an almost-ivory complexion and a sympathetic manner, drew McCorvey out. In other cities and other times, the two might have been undercover policewomen. Or they might have been agents for an abortionist, or abortionists themselves, as had been women from time immemorial. Abortion was still a crime, and Dallas's district attorney, Henry Wade, prosecuted abortionists. But the three women discussed McCorvey's desire openly, for the dark-haired woman was Linda Coffee, and her blonde companion was Sarah Weddington, both newly minted practicing attorneys and both looking for a plaintiff to bring a lawsuit that would challenge Texas's anti-abortion laws. Perhaps it was not surprising that it was in the heart of Texas where McCorvey found two lawyers to help her. The University of Texas Law School was open to women from its founding in 1883; the first woman enrolled there in 1911. When Coffee and Weddington entered, in 1965, there were 20 other women in the class. The state bar admitted its first woman in 1910, and, by the middle 1960s, Dallas ranked sixth among major American cities in the number of women practicing law. Still, of Coffee's and Weddington's graduating class, all but they had decided to postpone practice until marriage and children. Women composed less than 2 percent of the total number of lawyers in the state and did not hold any partnerships in the major law firms. Roe v. Wade, announced in 1973, and its companion cases remain the most divisive and controversial judicial decisions of the 20th century. Nearly 30 years after Roe, states continue to legislate regulations for hospitals and clinics, doctors and family counselors, with the avowed purpose of discouraging abortion. Are those legal under Roe? Do they place an undue burden on women seeking abortions? Courts have issued a bewildering variety of answers. The raised voices of advocates and opponents of Roe in judges' chambers and legislative halls have spilled into the streets, causing state and federal lawmakers to debate, and federal courts to adjudicate, rules separating abortion-rights and anti-abortion demonstrators from one another. Doctors have died for the act of performing an abortion. For legal scholars and historians like us, who work in fields where the writing on Roe has burgeoned, such passions must be banked, if not entirely stilled. While we have our personal opinions, we should be above the clamor of the partisans. Yet we, too, face a kind of dissociative or fragmenting sensation when confronting Roe, for it brings together so many -- almost too many -- disparate fields of history and legal study. That's because Roe implicates vital questions of gender, law, medicine, politics, and religion. Many observers predict that the U.S. Supreme Court will soon take a new look at the decision. When that happens, it is likely to provoke a storm of scholarly analysis, commentary, amicus briefs -- and no small amount of classroom analysis. There will be much to draw upon. And much to sort through. As teachers, we must try to give students a broad context to understand not just the legal arguments of this case, but also the history of the entire abortion-rights controversy. Roe was a watershed event in American women's history, coming at a time when feminism had developed but not yet established the legal basis for its reform program. Indeed, law had yet to catch up to the gains that women had made in the marketplace, academe, and the media. Roe added to economic and political aspirations a more intimate sense of the differences between women and men and the legal debilities inherent in those differences. It brought together women's history and legal history, the history of the family and the history of population, the history of public policy on medicine and the history of our Constitution. It was the legal relationship between men and women, which law mirrored and compounded, that gave the decision its complexity and drama. For Roe's declaration that abortion was no longer a crime made the case into a symbol: of autonomy and women's control over their reproductive lives; of soul-searching and often of guilt, since no one knows more immediately than the pregnant woman that abortion ends a potential life; of horror, not just for the violence it portends to the unborn, but for the disruption of the home, the family, and the duties that women owe -- or should owe -- to fathers, husbands, and children. In the late 1960s, advocates of a woman's legal right to abortion selected the word "choice" to promote their cause. Until then, feminist legal analysis had emphasized equality of women before the law. Choice became the centerpiece of a new paradigm of women's place in the law, in which women's rights grew out of women's experiences, told by women in their own voices, in the plain speech of everyday life rather than the arcane tracings of legal doctrine. Feminist legal theorists argued that access to a safe, legal abortion was all about choice, about women's right to determine what happened inside their own bodies. Choice went hand in hand with the concept of privacy, a legal right that was almost 100 years old by the time it was featured in Roe, but one that had only recently been applied to women's reproductive experience in Griswold v. Connecticut (1965), which struck down a state law banning the dissemination of information on birth control for married couples. When used to describe abortion rights, choice translated into consent. Some feminist legal theorists argued that in a nonconsenting pregnancy -- for example, one resulting from incest or rape -- the fetus was an intruder in a woman's body, and she had a right of self-defense against it. Citing the extreme changes that pregnancy inflicts upon a woman, including a 400-percent increase in certain hormones and changes in heart rate and other organ functions, those theorists asserted that pregnancy is akin to an invasion. The argument -- regarded as too extreme by some feminists, embraced by others -- boded a wider split in the huge literature on women and privacy. Doesn't asserting privacy for abortion, some theorists asked, run athwart of the feminist attack on the privacy to use and create pornography? For their part, courts and Congress have debated whether wrongful pregnancies should be regarded as exceptions to general rules limiting funds for abortions. But the extreme language of some advocates of abortion rights in such cases has given opponents of abortion evidence to argue that the pro-choice stance is inherently anti-children, anti-family, and anti the traditional roles that women have played, turning a dispute over a medical procedure into a much broader controversy over lifestyles and moral obligations. Roe is thus just as much a part of the history of gender -- of men's and women's relations to one another, as it is a part of the history of agitation for women's rights. As opponents of Roe correctly argue, women's reproductive choices do not concern women alone. Indeed, women's history and the history of gender come together in the study of the decision. As a private act, concerning only the mother, her family, and her helpers, abortion belongs to women's history. Insofar as abortion has become a matter of public concern -- a story of the evolution of legislation and law enforcement, of the changing professional status and standards of doctors, lawyers, clergymen, and political leaders -- abortion and Roe require the analysis of gender. For the legal historian or constitutional scholar, Roe is not just about the constitutionalization of the rights of women and the right to privacy. It also raises questions about federal-state relations (federalism), the doctrines of due process and equal protection under the 14th Amendment, and the very nature of fundamental rights. In the hundreds of lower-court hearings and nearly two dozen Supreme Court cases on abortion rights and related issues, the courts have had to refine the notions of statutory interpretation, injunctive relief, and other basic concepts before even getting to the merits of challenges to state restrictions on abortion practice. Should the courts go behind the face of a statute to determine if its drafters had a religious purpose? Should they tell state governments not to prosecute doctors who perform abortions? What sorts of medical evidence on the viability of a fetus should be admissible in court? Sometimes turning to doctors, nurses, social workers, psychologists, and historians for expert help, legal scholars have thus widened the scope of inquiry into abortion rights to include such topics as sex education in the schools, the rights of the poor, the analysis of race, and philosophic concepts of life itself. Roe was also a milestone in the relationship between (most often male) doctors and their female patients, and thus has become an important part of the history of the medical profession in the United States. From condemning abortions in the 19th century, the elite medical practitioners came to champion therapeutic abortions in the early 20th century and then (with a few exceptions) joined with women's-advocacy groups to argue that the decision on a first-trimester abortion belongs to the woman and her doctor. Seen from the doctors' perspective, as a part of the rising profession of medicine, Roe played an important role in the story of the professionalization and politicization of doctors. From the beginning of the Republic, abortion involved not only the relationship of doctors to patients, but also doctors' views of their professionalism (for example, linked to the concept of medical ethics), their struggle against alternative medicine and folk practitioners, and their concerns about their status in society. Over the years, as discussion of abortion in general and Roe in particular was based on medical distinctions about viability, the stance of doctors on abortion brought them and their profession into the public eye. Today we take for granted the appearance of public-health officials on news programs or before Congressional hearings. The abortion-rights controversy was one area in which doctors first played such a role. In politics, local, state, and national elections and legislative sessions since the early 1970s have featured harsh rhetoric and determined campaigning on both sides of the issue. Apparently, Roe sits on a fault line, a fissure between right and left, traditional and modern, running through our national politics. Although not all Democrats favor choice and not all Republicans are right-to-life advocates, many leading Democratic candidates have reaffirmed their commitment to the pro-choice rulings in Roe and subsequent cases, while, as early as 1976, leading Republican spokesmen called for a return of abortion law to the states, and some wish the states to again make abortion illegal. Political scientists and journalists have asked how crucial the abortion-rights issue is to the outcome of elections, and how important it will continue to be in the formulation of national-party platforms and presidential administrations. Politics also takes the historian into the rhetoric of the parties in the abortion story. Even the selection of the most basic of terms -- are we speaking of a fetus or an unborn child? -- are ringed with subtle political connotations. Weddington reminded the Supreme Court, when she came before it, that she was not advocating abortion, but a woman's right to terminate a pregnancy. Counsel for the State of Texas replied that the unborn had rights as well, which the state was obligated to protect. Faced with the myriad gender, legal, religious, and political meanings of such terms, and the motives of all the parties, students of Roe must be especially sensitive to the nuances of political speech. Roe also impels an inquiry into religious belief and practice in America. From the first, the question of abortion called forth moral judgments often rooted in religion. While it may be true, as Adrienne Rich, the poet and the scholar, has warned, that the absence of respect for women's lives is written into the heart of male theological doctrine, some men and women cleave with deep respect to the subordination of woman to man found in the Bible. The right-to-life credo of the Roman Catholic Church and evangelical ministries is sincerely and consistently held and has led opponents of abortion to stress the importance of protecting the unborn from what one Supreme Court justice called the whim and caprice of women. Because of the First Amendment's ban on the establishment of a state religion, anti-abortion advocates have had to efface those tenets from their arguments in court, but in the public debate, religion is central to much discussion of abortion. Indeed, Norma McCorvey herself came to hold religious objections to abortion. Inspired by religious ideals, anti-abortion advocates responded to the "pro-choice" label by selecting their own key word: "life." The concept that the soul enters the fetus at conception is a relatively new one in Christian thought, dating to no more than a century before Roe, but, by expanding upon it, opponents of abortion in evangelical-Protestant sects, the Roman Catholic Church, and other religious groups found a moving anodyne to pro-choice rhetoric. The linking of life to traditional maternal roles further argued that abortion violates the most basic of women's duties to children. For historians and sociologists of the family -- as for every American woman -- questions reach out from Roe to the workplace, the classroom, and the courtroom. As wide-ranging as we must be in our attempt to capture all of the story, there are subjects here not covered, and for good reason. We have not considered in detail the many ways in which women and men won for women the right to vote, to participate in organized labor, to go to college and graduate school, to enter the professions, or to hold high political office -- the whole panoply of civil and economic rights that people of color achieved in those same years. Those surely set the stage for Roe, but rest upon other lines of narrative. More important, perhaps, abortion rights are fundamentally different from civil rights and civil liberties for women. The 19th Amendment and the Civil Rights Act of 1964 brought women more fully and equally into a world that had been the preserve of men. Abortion-law reform did not bring women more fully into the world of men -- not in the same way, at least. Abortion rights gave to women a legal right to be different. That might sound incongruous, for the constitutional basis for abortion rights is due process and equal protection in the 14th Amendment, the Ninth Amendment's "rights... retained by the people," and other provisions that do not distinguish between men and women. Yet, by its very nature, abortion does distinguish between men and women. Under an old regime of law and politics exclusively male, supported by a worldview that regarded women as the inferior sex and praised the ideal woman as wife and mother, men played a major role in the abortion story. Men made laws against abortion, enforced them, then argued against them and repealed them, dictating women's access to legal abortion. But when women got the right to abortion, men play a diminished role in the tale. Thus the abortion story, despite the absence of gender in the constitutional language on which abortion rights rest, differs from the many other stories we can tell about women's rights in the 20th century. Roe, like every law case, is tied to a particular time and place, to its participants and their lives. But Roe, unlike most law cases, also touches all of us, whether we teach it, lobby for its reversal, or campaign for its survival. Whatever happens to Roe in the next few years, the controversy over abortion rights that so changed American history in the previous century will continue to influence our law and our society for years to come. N.E.H. Hull is a professor of law and a member of the graduate faculty in history at Rutgers University at Camden. Peter Charles Hoffer is a professor of history at the University of Georgia. This essay is adapted from Roe v. Wade: The Abortion Rights Controversy in American History, published this month by the University Press of Kansas. http://chronicle.com Section: The Chronicle Review Page: B13
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Copyright © 2001 by The Chronicle of Higher Education