Beyond any doubt, women’s reproductive health care rights are in serious jeopardy. The promise of Roe v. Wade, the landmark (7–2) Supreme Court case decriminalizing abortion, now appears more illusory than real for millions of women. In 2021 to date, 14 antiabortion constitutional amendments have been introduced—three times the number in 2019. In addition, state legislatures have enacted laws significantly infringing on abortion rights. The South Carolina legislature enacted a ban as early as six weeks in pregnancy, Kentucky has a law that grants its attorney general the authority to close abortion clinics, and Arkansas governor Asa Hutchinson has signed into law one of the nation’s most restrictive bans, making no exception for rape or incest. And, the United States Supreme Court agreed in May 2021 to hear a case involving a Mississippi law banning abortion at 15 weeks with no exceptions for rape or incest.
In 1973, even though five of the seven justices who voted to decriminalize abortion in Roe were nominated by Republican presidents, today that landscape is dramatically different. For pregnant people in abortion battleground states, abortion rights remain a reality in law but not necessarily in practice. Nationally, the number of abortion clinics has dramatically declined, while legislative efforts to restrict abortion access increases each year.
According to the Guttmacher Institute, since 2011, lawmakers enacted nearly 500 antiabortion provisions, which account for 40% of all abortion restrictions since Roe v. Wade. Between 2011 and 2016 at least 162 abortion clinics shut down. Antiabortion foes are winning with legislatures and courts.
Mary Ziegler wants to know why and how this happened. In her most recent book, Abortion and the Law in America: Roe v. Wade to the Present, Professor Ziegler seeks answers as she situates abortion rights and specifically Roe v. Wade in historical contexts. The book is a superb exploration of the antiabortion movements that mobilized in the 1970s, 1980s, and 1990s to deliver a type of well-planned stealth attack on reproductive rights generally and on abortion specifically. She dives into the missing and often overlooked historical accounts of the antiabortion movement and their connections to contemporary politics.
Unlike other works studying abortion rights, Ziegler cleverly centers her work on the internecine struggle within the antiabortion movement. This is not the feminist manifesto articulating why abortion rights matter. The book is smarter than that. It spots undetected and undetonated landmines. As with works in legal history, for those who lived through the bombings of abortion clinics and the killing of doctors, some of the raw facts will not be new. However, what Ziegler unearths are the internal tensions within the antiabortion movement, brokering and struggles over strategies, appeals to white supremacist movements, and solidifications of political networks.
For example, what began as a violent and directly confrontational antiabortion movement that prioritized a constitutional amendment to ban abortion and affirm fetal life failed. The antiabortion movement of the 1980s and 1990s, which harnessed and unleashed surprising levels of violence and terror—wielding threats, assaults, and even murder to push its agenda—shifted dramatically by the mid-1990s and early 2000s. It did not peter out, but rather a “struggling and scrappy” movement reorganized and galvanized under a different set of strategies and priorities aided by sophisticated “elite” lawyers.
According to Ziegler, a central part of the regrouping included the strategic pivot to state legislatures and an alliance with the Republican Party. Aided by wealthy religious leaders with outsized platforms such as Jerry Falwell, a newly rebranded antiabortion movement launched new tactics, bringing test cases and dispensing with efforts to amend the US Constitution with bills such as the Human Life Amendment, the Hogan Amendment, and the Hatch-Eagleton Amendment (among others). With little meaningful progress toward amending the Constitution to ultimately overturn Roe, organizations such as Americans United for Life dramatically shifted their focus. Realizing the weaknesses and vulnerabilities of earlier strategies, and the ineffectiveness of fighting their battles in Congress to secure a constitutional amendment, these organizations made state legislatures and courts the new battlegrounds for the antiabortion movement.
As Ziegler makes clear, however, the strategic aims and goals of the antiabortion movement in the 1980s and 1990s were not limited to the courts and state legislatures. Antiabortion groups understood the importance of reaching the nation’s soul—or at least attempting to do so. Films such as Silent Scream, even if correctly critiqued for the lack of veracity of its depictions, nonetheless provided an emotional touchstone for recruiting adherents to their messaging. In addition, with the burgeoning use of sophisticated technologies, antiabortion proponents advanced their messaging through highly magnified depictions of the fetus. The approach was to reach both hearts and minds, even though questionable and sometimes flat-out inaccurate rhetoric papered over facts.
The results have been profound. Today, the antiabortion movement commands direct attention and support from the Republican Party in statehouses and Congress. In 2016, in the lead-up to the Republican National Convention, the Republican Party platform repeatedly mentioned eliminating abortion rights; it referenced abortion no less than 35 times. The platform lauded “states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs.” In addition, it urged “a permanent ban on federal funding and subsidies for abortion and healthcare plans that include abortion coverage.” Finally, it called for the “codification of the Hyde Amendment.”
Tellingly, the antiabortion movement has not been satisfied with efforts to limit abortion access. This strategic alliance with the Republican Party has allowed antiabortion organizations to pressure legislatures to oppose contraception being referred to or counseled about in school-based health clinics and sexual education programs. Revealingly, the attack on contraceptive education and access provides a window into the darker side of current antiabortion efforts. The antiabortion movement has shifted the focus of its battle against women’s reproductive health care access to something more than abortion: it now takes aim at women’s most basic fundamental rights: bodily autonomy and privacy.
What Professor Ziegler lays out with rich historical detail has come to pass: even as abortion remains legal and supported by the majority of Americans, it is also out of reach for many of the people who need or want the medical service. In 2017, nearly 90% of counties in the United States did not have an abortion clinic. More than 90% of women in Mississippi and Wyoming live in a county without an abortion clinic. Clinic closures, legislative attacks on abortion rights, the increased number of targeted regulations of abortion providers (TRAP laws), and intensifying hostility to abortion rights at the Supreme Court are contemporary challenges to abortion rights.
Even while Roe v. Wade and, more precisely, the Court’s subsequent ruling in Planned Parenthood v. Casey remain “good law,” attacks on abortion rights reveal the power and influence of antiabortion movements. Their sophisticated legislative and social strategies and economic resources deliver outcomes not rivaled by abortion proponents. For example, there are far fewer clinics that perform abortion today than in the aftermath of Roe. In fact, in seven states—Kentucky, Mississippi, Missouri, North Dakota, South Dakota, West Virginia, and Wyoming—only one clinic remains open. In Arkansas, only one service provider provides full services—surgical and medication abortions—in the entire state.
How does one explain these rollbacks in light of the constitutional right to terminate a pregnancy? Or that a pregnant person is 14 times more likely to die gestating to term or during or after delivery? Or that an abortion is as safe as a penicillin shot? Although these basic truths may matter to abortion rights advocates, they have little resonance among any part of the antiabortion movement, which has more traction with Republican lawmakers in statehouses and Congress than ever before.
Today, those medical realities matter very little in either the rhetorical or legal battles over abortion rights in state legislatures. As Ziegler explains so well, the antiabortion movement gained tremendous momentum based in part on a retooled regard for the status of women. In Roe v. Wade, Justice Blackmun and the Court’s majority concerned itself with the social determinants that constrained a woman’s life in the wake of an unintended or unwanted pregnancy. Justice Blackmun directly addressed the social stigmas associated with unwed pregnancies and childbirths, the delays in education, and the constraints on employment and career pursuits. Roe v. Wade normalized consideration of the harms that women experienced when forced by the state to carry pregnancies to term. He explained that these harms could negatively affect the physical and psychological well-being of women.
Two decades later, in Planned Parenthood v. Casey, the Supreme Court’s ruling reflected the shifts and successes of the stealth, reorganized antiabortion movement. The Roe framework was undone and substituted with an “undue burden” test, reflecting the Court’s willingness to create room for states to enact laws purporting to protect women’s health and ensure the safety of abortion procedures in their states. At issue in the case was the constitutional legitimacy of laws that required more rigorous consent standards prior to an abortion, such as 24-hour waiting periods, informed consent, notification of the husband (if the woman was married), and, for minors, mandated parental consent. The Court considered whether these types of provisions violated the right to an abortion guaranteed by Roe v. Wade. It upheld most of these provisions, securing a profound victory for the antiabortion movement.
As Ziegler explains, the antiabortion movement successfully built a war chest of financial and intellectual resources that saw its power and potential not in rushing to overturn Roe and overthrow whatever remained of a reproductive rights movement post–Roe and Planned Parenthood v. Casey. Instead, it gained important ground by organizing and strategizing in ways that feminist movements largely abandoned after Roe. Newly branded targeted regulations of abortion providers (TRAP laws), such as burdensome facility regulations, hospital admitting privilege requirements, mandates associated with the disposal of fetal remains, limits on telemedicine, ambulatory surgical center requirements, vaginal ultrasounds, and waiting periods that extend beyond 48 and 72 hours including weekends, are part of the new arsenal.
Ziegler’s already weighty account leaves the reader desirous for more of her analysis and insights, including assessing the role of white supremacy in the modern era of antiabortion movements and learning how race-based tropes may be the next level of strategizing. For this, we must await her next book.
