In Planned Parenthood v. Casey in 1992, a plurality of Supreme Court justices declined to overturn Roe v. Wade and Doe v. Bolton, the companion 1973 cases that allowed legalized abortion nationwide at any stage of pregnancy, for any reason, in any state. Central to the plurality’s reasoning was that “[a]n entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.”
This reasoning came as much of a surprise to Chief Justice William Rehnquist as it did to the millions of American women who certainly had not ordered their lives around abortion. In his opinion, Rehnquist disputed not only the assumption that Americans had grown accustomed to Roe, but the condescending suggestion that many women had “reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market.”
Twenty-four years later, a number of women undeterred by these cogent criticisms filed amicus curiae briefs in Whole Woman’s Health v. Hellerstedt (the Supreme Court’s most recent abortion decision, decided in 2016) (here and here), telling personal stories of seeking abortions. They argued that women continue to rely upon abortion to plan for and succeed in their education and careers.
Those briefs have largely come to define popular discourse involving abortion. That’s unfortunate, because they gave short shrift to the life stories of the many women who have been harmed, injured, and even killed by legalized abortion. They neglected data on abortion rates and their effects on women’s health, relationships, and careers. They also grossly underestimated all the women who have advanced and are thriving despite or irrespective of legalized abortion.
Indeed, in 1973, the Supreme Court justices surmised that legalized abortion would reduce poverty among women. While Roe might not be the source of the feminization of poverty, the hard truth is that in the four decades since Roe, the proportion of those living in poverty who are women has increased.
One factor may be Roe’s transfer of all responsibility for children to women. By teaching uncommitted men that the proximate cause of a baby is the woman’s decision to give birth and not to abort—rather than the proximate cause being intercourse—women are the decision makers and therefore the cause of any child born. Since men have no rights regarding their unborn children, too many believe they have no responsibilities either.
Scholars have further conjectured that abortion has negatively affected the marriage market by limiting women’s bargaining power in the marriage choice. The availability of abortion as a “contraceptive” option has helped to make premarital sex more universally casual, and cohabitation frequently preferable to marriage. In gaining the option of abortion, many women are finding it more difficult to achieve the option of marriage.
An even broader social challenge, with or without abortion, is the desire, calling, and need of many women to balance work and family. Many women hope for children, including the majority of those who first have an abortion, and many want to balance work and family.
Longitudinal studies have proven that up to 75 percent of women who have an induced abortion will become pregnant again. In fact, an article in the New York Times in February 2018 noted that some millennial women doubt that they will be able to have as many children as they would like to have.
Legalized abortion has also forestalled balance and flexibility in the workplace because women are expected to use the right to abortion to prevent any conflict between work and family. These expectations, whether latent or expressed, are found in every sector of business and are deeply detrimental to women’s well-being, as well as to that of their families.
Women do not and should not have to choose between their future and their family. In 1992, the Supreme Court staked its abortion doctrine on the notion that women require abortion in order to vie for equal opportunity. But in the years since, that notion has been proven wrong time and time again. Women achieve success despite and irrespective of abortion.
Contrary to popular belief, overruling or overturning Roe would not immediately result in abortion being illegal nationwide. Most likely, the Supreme Court would simply reverse the decision and negate the federal constitutional right to abortion. Thus, overruling or overturning Roe would effectively return the abortion issue to the states, although bills both legalizing and limiting abortion nationwide would likely be introduced in Congress as well.
While Justice Harry Blackmun penned the Roe decision that ushered in America’s abortion regime, he also reminded Americans that we are but a “single vote” away from overturning it. In the Trump moment, with passionate proponents of religious liberty and federalism back in the White House, that single vote seems to at least a possibility.
