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State Building, Health Policy, and the Persistence of the American Abortion Debate

Published online by Cambridge University Press:  14 October 2011

Helene Silverberg
Helene Silverberg
Affiliation:
University of California, Santa Barbara
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Extract

In the years since the Supreme Court handed down its ruling in Roe v. Wade (1973), the abortion controversy has raged across America with increasing vigor. Since Ruth Bader Ginsburg's appointment solidified the Rehnquist Court's moderate bloc, holding the line on Roe's basic principle but inviting more state regulation, the conflict over abortion is likely to expand and intensify in most of the fifty states. The increased and bitter activity since the Supreme Court decided Webster v. Reproductive Health Services (1989), which gave state legislatures more latitude to respond to pro-life pressures, provides only a small indication of what the future may hold. Almost twenty years after Roe legalized abortion in the United States, an end to the “clash of absolutes,” as Laurence Tribe has recently called the American abortion conflict, seems nowhere in sight.

Type
Articles
Information
Journal of Policy History , Volume 9 , Issue 3 , July 1997 , pp. 311 - 338
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1997

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References

Notes

1. U.S. House of Representatives, Congressional Record, 9 October 1979, 27536.

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24. In 1977, with the creation of the Health Care Financing Administration (HCFA), it was transferred to the Social Security Administration.

25. Thompson, Health Policy and the Bureaucracy, 115–21. The Medical Services Administration also administered more than fifty different activities with separate legislative authority in 1970. See Lee, Philip R., “Do We Need a Department of Health?” in Cater, Douglass and Lee, Philip R., eds., Politics of Health (New York, 1972), 18.Google Scholar

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27. On Hellman, see “A Tribute: Louis M. Hellman (1980–1990),” Family Planning Perspectives 12 (January–February 1991): 36–37.

28. Piotrow, World Population Crisis, 141–42.

29. U.S. Senate, Committee on Labor and Public Welfare, Subcommittee on Health, Family Planning and Population Research, 1970, 91st Cong., 1st and 2d sess. (Washington, D.C., 1970).

30. A legislative history of the Family Planning Services and Population Research Act can be found in U.S. Code: Congressional and Administrative News, 91st Cong., 2d sess., vol. 3, pp. 5068–82. See also U.S. Congress, 91st Cong., 2d sess., House Rpt. No. 91–1472.

31. U.S. Senate, Committee on Labor and Public Welfare, Subcommittee on Health, Family Planning and Population Research, 1970, 91st Cong., 1st and 2d sess. (Washington, D.C., 1970); Lincoln, Richard, “S.2108: Capitol Hill Debates the Future of Population and Family Planning,” Family Planning Perspectives 2 (January 1970): 6–12.CrossRefGoogle Scholar

32. Luker, Abortion and the Politics of Motherhood, chaps. 2, 4.

33. Ibid., chap. 4; Dreifus, Claudia, ed., Seizing Our Bodies: The Politics of Women's Health (New York, 1977).Google Scholar

34. By the fall of 1970, there were five cases before the Supreme Court, more than twenty cases in the lower federal courts, and many more in the courts of eleven states. Tatalovich, Raymond and Daynes, Byron, The Politics of Abortion (New York, 1981), 24–28Google Scholar. For the best history of Roe, see Garrow, David J., Liberty and Sexuality: The Right to Privacy and the Making of Roe (New York, 1994).Google Scholar

35. Lader, Lawrence, Abortion II: Making the Revolution (Boston, 1973), 69.Google Scholar

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37. Califano, Joseph, Governing America: An Insider's Report from the White House and the Cabinet (New York, 1981), 86–87.Google Scholar

38. The text of Roe can be found in Goldstein, Leslie Friedman, ed., The Constitutional Rights of Women, rev. ed. (Madison, Wisc., 1988), 336–47Google Scholar. See also Copelon, Rhonda, “From Privacy to Autonomy,” in From Abortion to Reproductive Freedom (Boston, 1990), 35.Google ScholarPubMed

39. “Abortion: Campaign to Upset Supreme Court Ruling,” Congressional Quarterly, 10 November 1973, 2974.

40. U.S. Senate, Committee on the Judiciary, Subcommittee on Constitutional Amendments, Abortion, Part 2, 93d Cong., 2d sess. (Washington, D.C, 1976), 4.

41. Ibid., 125–34.

42. “Hearings Air Abortion Controversy,” Congressional Quarterly Almanac, 1974, 430.

43. “Abortion; Campaign to Upset Supreme Court Ruling,” Congressional Quarterly, 10 November 1973, 2973–76; “Abortion: Should Constitution Be Amended?” Congressional Quarterly, 3 May 1975, 917–22; “Constitutional Convention Sought on Abortion Ban,” Congressional Quarterly, 1 July 1978, 1677–79; Jaffe, Frederick, Lindheim, Barbara, and Lee, Philip, Abortion Politics: Private Morality and Public Policy (New York, 1981), chap. 9.Google Scholar

44. Nixon's first pronouncement on abortion came in April 1971, when he reversed a federal regulation expanding access to abortion in hospitals on military bases. Craig and O'Brien, 158.

45. The strongest case for this view can be found in Littleton, Thomas B., The Politics of Population Control (Notre Dame, Ind., 1977)Google Scholar. Littleton points out that after Nixon's attack on the report of the Commission on Population Growth and the American Future, which supported increased funding for family planning and legalized abortion, Hellman announced that HEW would, unless ordered to do otherwise by the White House, continue to support family planning services regardless of age and marital status. The order never came. Littleton, 62–63, 143. Nor did Nixon order DHEW to discontinue funding Medicaid abortions.

46. Weinberg, David, “Family Planning and the American States,” in Bergman, Elihu, ed., Population Policymaking in the American States (Lexington, Mass., 1974), 75–99.Google Scholar

47. This has become one of the most prominent feminist criticisms of Roe v. Wade. See, for example, Catharine MacKinnon, “Privacy v. Equality: Beyond Roe v. Wade,” in MacKinnon, Catharine, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass., 1987), 93–102.Google Scholar

48. Melnick, Shep, Between the Lines: Interpreting Welfare Rights (Washington, D.C., 1994), 278–79.Google Scholar

49. Craig and O'Brien, 112–13; Congressional Almanac, 1973, 489–90.

50. Quoted in Craig and O'Brien, 109.

51. Craig and O'Brien, 110.

52. “Congress Votes 33-Billion in Labor-HEW Funds,” Congressional Quarterly Almanac, 1974, 97, 106, 108; Craig and O'Brien, 110–17.

53. The text of Harris v. McRae (1980) is reprinted in Goldstein, ed., The Constitutional Rights of Women, 439–40.

54. See, for example, MacKinnon, “Privacy v. Equality,” in MacKinnon, Feminism Unmodified; Olsen, Frances, “Unraveling Compromise,” Harvard Law Review 103 (1989)Google Scholar; Sunstein, Cass, “Neutrality in Constitutional Law (With Special Refrence to Pornography, Abortion, and Surrogacy),” Columbia Law Review 92 (1992).CrossRefGoogle Scholar

55. “Federal Health Programs,” Congressional Quarterly, 9 June 1973, 1464–65; “Health Insurance: Prospects for Passage Dim,” Congressional Quarterly, 20 July 1974, 1861–68; “Congress Clears Health Services Bill,” Congressional Quarterly, 19 July 1975, 1556–59.

56. Craig and O'Brien, 160–61; New York Times, 6 September 1974, 34.

57. Craig and O'Brien, 160–65.

58. Califano, Joseph, Governing America (New York, 1981), 51–73Google Scholar; Congressional Quarterly, 22 January 1977, 132; Craig and O'Brien, 164.

59. Early in the campaign, in response to questions about abortion, Carter argued that government should take a “positive role” in preventing unwanted pregnancies by expanding sex education and family planning programs. Daynes and Tatolovich, “Presidential Politics and Abortion,” 547–48.

60. Califano, Governing America, 71.

61. U.S. Senate, Committee on Human Resources, Adolescent Health, Services, and Pregnancy Prevention and Care Act of 1978, 95th Cong., 2d sess. (Washington, D.C., 1978), 21–23; 430.

62. Ibid., 104–8; House of Representatives, Select Committee on Population, Fertility and Contraception in the United States, 95th Cong., 2d sess. (December 1978), 96–97. See also Califano's testimony in U.S. Senate Committee on Appropriations, Subcommittee on Labor, and Health, Education, and Welfare Appropriations, Departments of Labor and Health, Education, and Welfare, and Related Agencies (Washington, D.C., 1977), 817–937.

63. New York Times, 5 February 1978, sec. 4, p. 5; New York Times, 18 August 1977, 15, and 29 November 1977, 18.

64. Craig and O'Brien, 127–35.

65. New York Times, 16 October 1980, 20; Daynes and Tatalovich, “Presidential Politics and Abortion,” 549.

66. Alissa J. Rubin, “Searching for the Middle,” Congressional Quarterly, 3 July 1993, 1737. Clinton's position on Medicaid funding was somewhat less than liberals hoped. To avoid forcing the states to pay for Medicaid abortions, the Clinton administration planned to classify abortion as an “optional” rather than “medically necessary” service. Rubin, Alissa, “Clinton's Funding Ban Repeal May Leave States in Charge,” Congressional Quarterly, 3 April 1993, 839–40.Google Scholar

67. “Clinton Reverses Directives; Battle Begins Anew,” Congressional Quarterly, 23 January 1993, 182; “For Family Planning Program, New Funding and New Day,” Congressional Quarterly, 6 February 1993, 270; Alissa Rubin, “Clinton's Funding Ban Repeal May Leave States in Charge,” 839; idem, “Freedom of Choice Bill Returns: Too Early to Predict Outcome,” Congressional Quarterly Weekly, 20 March 1993, 675; Alissa J. Rubin, “Deep Divisions over Specifics Could Be Bill's Undoing,” Congressional Quarterly, 27 March 1993, 755–56; “Issue: Abortion,” Congressional Quarterly, 11 December 1993, 3389–90.

68. Kosterlitz, Julie, “Is Hillary's Team Ready to Play?” National Journal, 6 February 1993, 368.Google Scholar

69. Congressional Quarterly Almanac, 1994, 321–23. The two leading alternatives to the Clinton bill, introduced by Senator John Chafee (R-R.I.) and Representative Jim Cooper (D-Tenn.), also required health insurance plans to offer all “medically necessary and appropriate services,” a phrase usually interpreted by the courts to include abortion. Alissa J. Rubin, “Lobbying Focuses on Abortion,” Congressional Quarterly, 14 May 1994, 12220.

70. See, for example, the excellent articles in Journal of Health Politics, Policy and Law 20 (Summer 1995).

71. Alissa J. Rubin, “Mixed Signals,” Congressional Quarterly, 9 July 1994, 1871; Congressional Quarterly Almanac, 1994, 336.

72. Rubin, “Mixed Signals,” 1871.

73. As Canadian feminist D. Gail Kellough has put it, “In the United States, women won the symbolic right to choice without the corresponding right of access to medical services. In Canada, women won the symbolic right of access but without the corresponding right to choose.” See Kellough, D. Gail, “Pro-Choice Politics and Postmodern Theory,” in Carroll, William, ed., Organizing Dissent: Contemporary Social Movements in Theory and Practice (Canada, 1992), 83.Google Scholar

74. Recent studies show that 93 percent of all counties outside the major cities are without an abortion provider, the lack of access in nonmetropolitan areas has been intensified by a 13 percent reduction since 1985 in the number of hospitals that offer abortion services (a particularly key aspect of availability, since the poor rely heavily on public hospitals for health care). In 1989, the average abortion clinic charged $245 for a first-trimester abortion. Henshaw, Stanley K. and Van Vort, Jennifer, “Abortion Services in the United States, 1987 and 1988,” Family Planning Perspectives 22 (May–June 1990): 102–8, 142CrossRefGoogle ScholarPubMed; Henshaw, Stanley K., “The Availability of Abortion Services in the United States,” Family Planning Perspectives 23 (November–December 1991): 246–52, 263CrossRefGoogle Scholar; Shelton, J. D., Brann, E. A., and Schulz, K. F., “Abortion Utilization: Does Travel Distance Matter?” Family Planning Perspectives 8 (November–December 1976)CrossRefGoogle ScholarPubMed. For an explicit comparison of the United States and a Scandinavian country on reproductive health services, see David, Henry, Morgall, Janine, Osler, Mogens, Rasmussen, Niels. and Jensen, Birgette, “United States and Denmark: Different Approaches to Health Care and Family Planning,” Studies in Family Planning 21 (January–February 1990): 1–19CrossRefGoogle Scholar