When the all-male supreme court ruled to protect abortion rights in 1973, activists didn’t foresee the fight that lay ahead
The landmark 1973 supreme court case Roe v Wade guaranteed the right to an abortion in the United States.
Now, nearly five decades later, that right is under threat as the court prepares to hear oral arguments in a new case, Dobbs v Jackson Women’s Health Organization.
How could a decision that was not met with widespread protest at the time be under threat less than half a century later?
Over the years, a vocal minority of socially conservative Americans have steadily gained political power, passed many state-level challenges to the decision and, in some extreme cases, resorted to violence and intimidation in an attempt to reduce access to abortion.
Although six in 10 adults in the US say abortion should be legal in “all or most” circumstances, Congress has never enshrined the right to terminate a pregnancy in statute. That has left abortion access vulnerable during a period of sustained legal attacks during the Trump administration and led to the precarious position of abortion rights in the US today.
Here are some of the key moments in the almost 50 years that have passed since the Roe v Wade ruling.
In a 7-2 decision, the all-male supreme court ruled that the constitution protects the right to an abortion. Justices found abortion was a “fundamental” right for a woman’s “life and future”, and that Texas had violated the rights of “Jane Roe” when an abortion ban prevented her from obtaining one.
“When the decision came down, we were elated,” said Eleanor Smeal, who was active in the feminist movement at the time and who is now president of the Feminist Majority Foundation. “It was a celebration, it was happiness, and people thought the fight was over – we won.”
“The movement wasn’t thinking of, ‘Oh my God, we’re going to have to fight to protect this,’” Smeal added. “We couldn’t imagine anyone would hammer away.”
The decision was preceded by decades of activism, with momentum decidedly on the side of those working to liberalize abortion laws. Constituencies as diverse as radical feminists, clergy and doctors came together to call for reform to criminal abortion laws.
“There was a big movement for legalizing abortion before the supreme court decision. I think people forget that,” Smeal said. “We talk about back-alley abortion but [women] were dying”.
People, especially those on low incomes, gained access to safe and legal abortion up to the point a fetus could survive outside the womb. Big-city hospitals shuttered “septic abortion” wards, where many poor people had died, infected and injured, from desperate attempts to end pregnancies.
People also gained access to abortion through Medicaid, a public health insurance program for low-income people and those living with disabilities. Abortion joined contraceptives, legalized for unmarried people just one year earlier, as a newly available method of family planning.
The anti-abortion movement as we know it today had yet to coalesce, but the stridently anti-abortion and anti-LGBTQ+ North Carolina US senator Jesse Helms did successfully pass the Helms Amendment, which banned the use of foreign health aid to promote “abortion as a method of family planning” overseas. The amendment remains in effect.
The Hyde Amendment, a temporary budget rider that barred Medicaid from paying for abortions, passed in the House of Representatives with a large majority. It was encouraged by Catholic bishops, and, unlike in today’s polarized environment, votes were not split strictly along party lines. More than 100 Democrats supported the measure, and 32 Republicans opposed it.
At the time, some representatives argued the Hyde amendment unfairly discriminated against poor people. The law, still in place, has made it far more difficult for low-income people to obtain abortions, often forcing them to pay hundreds of dollars for the procedure. Three-quarters of people who seek abortions in the US are low-income. The policy disproportionately affects people of color.
This period would represent a turning point in Republican politics. Republican political activists such as Phyllis Schlafly worked to bring together evangelicals and conservative Catholics by uniting them in concern about women’s changing place in society and how they would exercise new rights, such as abortion. Until then, legal abortion had been supported by many Republicans.
“Schlafly and her supporters argue that 1960s liberalism celebrates the individual and promotes the rights of the individual at the expense of the family and at the expense of a kind of moral order,” the Harvard historian Jill Lepore told On the Media. “Abortion becomes a linchpin” for this argument, she added.
The same year, the IRS revoked the tax-exempt status of Bob Jones University, a Christian college that defiantly refused to admit Black students on “religious liberty” grounds. The Dartmouth University religious history professor Randall Balmer argued this was an important moment in activating white evangelical protestant voters, or the “moral majority”, who would join many Catholic voters in being receptive to anti-abortion political messaging.
Evangelical opposition to abortion “was a kind of historical accident”, said Balmer, who details this history in his recent book Bad Faith: Race and the Rise of the Religious Right. “It allowed them to deflect attention away from the real narrative and to advocate on behalf of the fetus”.
Pennsylvania passed among the most stringent abortion restrictions in the nation with the Abortion Control Act, which required minors to gain parental consent to obtain an abortion, imposed a 24-hour waiting period on women seeking abortions and required married women to notify their husbands if they were seeking an abortion.
Although it was not the first state or city to enact such impediments, it became the most significant, because its law survived a court challenge. The early 1980s also saw the rise of the religious right with the election of President Ronald Reagan, who voiced support for a constitutional amendment to ban abortion.
Litigation against Pennsylvania’s Abortion Control Act reached the supreme court in a case called Planned Parenthood v Casey. The court upheld the essential ruling in Roe v Wade but allowed states to pass more abortion restrictions as long as they did not pose an “undue burden”.
The decision ushered in a new era of anti-abortion restrictions, which would come to be known as Trap laws, referring to targeted regulation of abortion providers. States passed hundreds of expensive and burdensome restrictions, often in an effort to test the constitutional limits of the court’s new ruling.
The same year, President Bill Clinton said abortion should be “safe, legal and rare”, a phrase later seen as a symbol of the Democratic party’s acceptance of the idea that abortion was shameful.
Even as Casey ushered in a new era of incremental abortion restrictions and abortion access dwindled, anti-abortion zealots saw the case as a loss. Frustrated, some turned to violence and intimidation, organizing blockades of clinics. Their tactics culminated in the assassination of Dr David Gunn, who was shot dead outside an abortion clinic in Pensacola, Florida. Eleven people have been murdered as a result of attacks on abortion providers since 1977.
“Anti-abortion forces got very extreme in the 1980s and 90s,” said Laura Briggs, author of How All Politics Became Reproductive Politics: from Welfare Reform to Foreclosure to Trump. “First they started bombing clinics and murdering providers, and formed the nucleus of the alt-right that we’re now living with as white nationalists.”
Two Planned Parenthood receptionists, Shannon Lowney, 25, and Leanne Nichols, 38, were killed and five more people injured at separate shootings by the same perpetrator in suburban Boston. The same year, Dr John Bayard Britton, 69, and James Barrett, 74, a clinic security volunteer, were shot and killed by an anti-abortion extremist outside another Pensacola clinic.
A Canadian man shot Dr Barnett Slepian – a Buffalo, New York, abortion provider – through his kitchen window with a high-powered rifle. The perpetrator remained free for five years before he was apprehended.
The same year, a nail bomb exploded outside a Birmingham, Alabama, abortion clinic, killing an off-duty police officer, Robert Sanderson. The man responsible, Eric Rudolph, eventually pleaded guilty to the 1996 bombing of the Atlanta Olympics, as well as bombings at two more abortion clinics and a gay bar.
The FDA approved the drug mifepristone – the first pill available to end a pregnancy early in gestation. In the coming decades, the drug proved extremely safe and effective, and was used by millions. By 2017, mifepristone accounted for 39% of all abortions.
However, it also became the target of attacks and disinformation. Some states required a doctor to be in the room when dispensing the medication, effectively banning telemedicine abortions. In others, anti-science disinformation about the ability to “reverse” a medication abortion was allowed to flourish.
The supreme court upheld a federal ban on dilation and extraction, a procedure opponents call “partial birth abortion”. In a 5-4 decision, the court ruled a ban on the procedure was constitutional, even though it was designed to lead to fewer complications for pregnant people. The decision weakened Roe, which held that a pregnant person’s health should be paramount.
Dr George Tiller was shot and killed in the entrance of his church in Wichita, Kansas, by an anti-abortion extremist. Tiller was one of the few abortion providers in the country willing to perform the procedure late in pregnancy.
Texas passed a law that required abortion providers to have “admitting privileges” at local hospitals. The requirement proved impossible for many doctors to meet, shut down dozens of clinics in Texas, and was then replicated by other states. The midwest and south became the epicenters of anti-abortion legislation.
The same year, North Dakota passed the nation’s first “heartbeat bill”, a ban on abortion after roughly six weeks. That is before most people know they are pregnant and before the vast majority of abortions take place.
At the time it was passed, mainstream anti-abortion activists believed it was too extreme and would only serve to bolster Roe.
A man opened fire at a Colorado Springs Planned Parenthood, killing three people and wounding nine more. His victims were later identified as Jennifer Markovsky, 35; Ke’Arre Stewart, 29; and Garrett Swasey, 44.
The same year, the supreme court struck down Texas’s “admitting privileges” law in a 5-3 decision, ruling the burdens placed on people were unconstitutional. Nevertheless, the damage was done – most of the clinics that closed when Texas enacted the law remain shuttered.
Donald Trump was elected president. Running as a Republican on the campaign trail, he said people who had abortions should be punished and promised to appoint supreme court justices to “automatically” overturn Roe. He was carried to victory with strong support from the religious right. Trump confirmed three justices to the court during his term in office – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett - giving conservatives a 6-3 super-majority.
Several more states passed so-called “heartbeat bills” – including Ohio and Georgia – even though the laws were blatantly unconstitutional and were blocked by courts. The author of the bills is an anti-LGBTQ+ conspiracy theorist whom anti-abortion activists once considered too extreme, but who found new purchase in the Trump era.
Emboldened by Trump, the anti-abortion movement sees more grassroots efforts to outlaw abortion entirely. New York and Illinois expand abortion rights in response to near constant attacks in other states and from the Trump administration.
The Covid-19 pandemic hit, and much of normal life came to a standstill. Hospitals and clinics across the country suspended normal operations. Ten states attempted to restrict abortion as a “nonessential” service. Courts intervened and many restrictions were lifted, though many measures had already sown confusion.
The same year, Justice Ruth Bader Ginsberg, hailed by some as the court’s greatest champion of reproductive health and freedom, died at age 87. The Trump administration quickly confirmed her successor – Barrett.
By May, the supreme court agreed to consider Dobbs v Jackson Women’s Health Organization, alarming activists who worry the case could be used to significantly weaken the right to abortion.
The case focuses on whether Mississippi can outlaw most abortions at 15 weeks, a direct challenge to Roe, which provides a right to abortion up to the point the fetus can live outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is 39 weeks.
By mid-year, 2021 has already become the most hostile year for abortion rights on record, with more than 90 restrictions put in place by states. In July, attorneys for Mississippi asked the court to use the Dobbs case to overturn Roe v Wade, and called the 1973 decision one which has “poisoned our national discourse” and “plagued the law”.
By September, the supreme court had let Texas’s six-week abortion ban go into effect while it was litigated, halting the vast majority of abortions in the country’s second-biggest state. Experts called Roe v Wade a “dessicated husk” of a ruling.
The court shocked observers again in September, when it allowed Texas to implement a six-week abortion ban. In effect, Texas nullifies the constitutional rights granted by Roe v Wade within its borders.
If the Mississippi case leads to the fall of Roe v Wade when the court issues its decision in 2022, and abortion restrictions are left to the states, more than half would be likely to move to again make the procedure illegal.
Dr Wendy Chavkin, a special lecturer in population and family health and clinical obstetrics and gynecology at Columbia University who helped found Global Doctors for Choice, said such a decisionwould set the US back decades.
“If this thing goes wrong, we’re bucking the historic tide” of liberalizing abortion laws globally, said Chavkin. “It’ll be like some of those decisions that the US is – embarrassed is an inadequate word – but profoundly embarrassed by for years and we’ll have a lot of trouble ameliorating the harms that will result.”