In October of 2022, shortly after the Supreme Court reversed Roe v. Wade, replacing it with the Dobbs Decision, I sat on a Brooklyn College panel  called “Abortion, the Supreme Court, and Really Bad History.”  I joined two colleagues, one from History, the other an anthropologist, to decry the decision.  Roe relied on a woman’s right to privacy; Dobbs gave states the power to regulate abortion.  (If you’d like to hear it, it’s on my website, bonnieanderson.com, under Videos.)  I discussed conditions when abortion was illegal, which the Court never mentioned.  About 1,000 American women died each year from illegal abortions and hospitals established Septic Abortion Wards to treat those with major infections from the practice.  As many feminists have remarked, making abortion illegal does not do away with abortions, it just does away with safe abortions.

     Instead the majority of the Court both cited every anti-abortion law ever passed and embraced “originalism,” a doctrine which maintains that what was originally in the Constitution should prevail.  This strikes me as ludicrous.  Women are not mentioned in the Constitution; do we not exist?  Slavery was countenanced in the Constitution, should that still exist?  The U.S. Constitution contains both the power to amend and Article 9 of the Bill of Rights which holds that if not mentioned “all other rights are retained by the people.”   These clauses prove that holding to the original document goes against its original authors’ beliefs.

     In addition, the current Supreme Court opposed a standard legal doctrine: “stare decisis,” “to stand by things decided.”  This precept holds that a long-maintained law should be upheld except under extraordinary circumstances.  One such circumstance occurred in 1954, when the Supreme Court overturned its previous decision, Plessy v. Ferguson, which legalized segregation in 1896, with Brown v. Board of Education, which ended it in the schools.  The current Court declared that ending Roe was a similar decision.  But it wasn’t.  The vote in Brown was unanimous; that in Dobbs was not.  Brown widened civil rights; Dobbs curtailed them.  In addition, the majority justices argued that they were not overturning stare decisis, but just “reinterpreting” it.  In his opinion, Justice Alito cited Matthew Hale, a seventeenth-century jurist considered misogynist in his own day.  In addition to condemning abortion, which in common law had always been legal before “quickening,” i.e. when the embryo moved inside the womb, Hale defended burning women as witches.  In his opinion, Justice Thomas also advocated ending same-sex marriage and contraception, but not interracial marriage, since he is a black man married to a white woman.

     What about today?  Generally, judges recuse themselves from sitting on cases in which they have a personal interest.  Thomas’s wife, Ginni, has strongly advocated and worked for the election overthrow of Jan. 6, 2021.  Thomas has often stated that he and his wife are “one person.”  The U.S. flag hung upside down – a symbol of Jan. 6 – for a number of days outside Judge Alito’s residence.  The Pine Tree flag, with its slogan, “Appeal To Heaven,” flew outside his summer home for a while.  Alito has argued that his wife “likes to fly flags,” and puts the blame on her and a neighbor who supposedly antagonized her.  Thomas also separates himself from his wife’s actions.  Both have refused to recuse themselves from imminent cases dealing with Jan. 6.  Chief Justice Roberts, who originally declared that his position was that of “umpire,” has refused to intervene.  But what would an umpire do if one team flew the flag of its opponent?

     Can anything be done?  Traditionally, Congress can override the Court.  But this Congress is so divided that that cannot happen now.  However, there is another remedy, which Jamie Raskin, a Democratic representative from Maryland, has recommended.  He recently wrote that “The Constitution, and the federal laws under it, is the ‘supreme law of the land,’ and the recusal statute explicitly treats Supreme Court justices like other judges: ‘Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’” The only justices in the federal judiciary are the ones on the Supreme Court.  So the other justices could compel Alito and Thomas to recuse themselves.

     However, this is also unlikely.  What is needed is a decisive Democratic victory in November.  I’m hoping for a trifecta –- the Democrats winning the presidency, the senate, and the house.  At this time, the nation has split on the issue of abortion.  All the Southern states have banned it.  Most of the Northern states have not.  Remind you of anything?  These divisions over states’ rights preceded and helped to bring about the Civil War.  In this case, I don’t think there will be a Civil War.  Instead, I deeply believe that the Dobbs decision will insure a Democratic victory in 2024.    

Abortion

     Just after our college graduation in 1964, my close friend Enid became pregnant.  She didn’t want to have a child then. We and other friends asked everyone we knew for references and finally found an M.D. who would give her an abortion.  It would be in his office -- a plus -- but at 5 in the morning.  He used dilation and curettage, basically scraping the inside of her womb to remove the embryo.  Normally this procedure was performed with anesthesia, but he didn’t use any.  Enid left his office screaming and bleeding.  Fortunately, she was not permanently damaged and went on to marry her boyfriend and have a healthy daughter with him.    

     The doctor charged $900, an incredibly exorbitant sum then.  According to Google, it is equal to $7300 today.  Enid had $300, I loaned her $300, and her boyfriend had $300.  It took her years to pay it back.

         This was the best-case scenario when abortion was illegal in the United States.  Other women, desperate to end a pregnancy, went to quacks, used hangers and other sharp implements, or ingested poisons.  Many developed bad infections, which often sterilized them; others died.   In the 1940s, 1000 American women perished from unsafe abortions each year.  Hospitals created “sceptic abortion wards,” which reduced this number.  By 1972, the last year abortion was illegal here, 39 women died out of 130,00 attempting to end their pregnancies.[1]  Outlawing abortion does not stop women from trying to have it done, it just makes the procedures unsafe and often fatal.

         In 1976, I had a legal abortion.  It was done in a clinic on an out-patient basis, using suction.  It barely hurt and I recovered rapidly.  I never became depressed about it and never regretted having it. 

         The new anti-abortion bill just passed in Alabama allows doctors who perform the procedure to be sentenced to 99 years in prison, longer than for many other crimes.  As a historian, I’ve had to go back to 1943 to find an equivalent punishment: pro-Nazi Vichy France executed two people then for performing abortions.  Abortion remained illegal in France until 1974.  Beginning in 1971, feminists and doctors signed public documents declaring that they had had or had performed abortions, forcing the government to legalize the procedure.  In communist Romania, which made abortions virtually impossible to procure, orphans overwhelmed the nation’s ability to care for them.  The resulting under-funded orphanages, crammed with unwanted children, resulted in many illnesses and even deaths.

         The sovereign state of Alabama, however, has gone even further than Romania.  Under their bill, no exceptions are allowed for either rape or incest.  What about the eleven-year-old raped by her father?  Such cases are exceptional, but they do occur.  Imagine the cruelty of making a severely abused child carry such a pregnancy to term.  

In other states limiting abortion less severely than Alabama (often by shortening the time allowed for ending a pregnancy to six or eight weeks, when most women don’t even know they are pregnant), doctors are punished and women are stigmatized.  The people that carry no blame are the fathers, the men who impregnated the women.  This male exemption, embodied in the still common saying, “She got herself pregnant,” is one reason many of us believe these laws are made to control female people.

         The solution to curtailing abortions is not to outlaw them, but to provide adequate contraception.   I have always believed that once anti-abortionists coined the phrase “Pro Life,” the battle was lost.  I think the women’s movement should have spearheaded its efforts on the issue of contraception, since many anti-abortionists also oppose contraception.  89%  of Americans are in favor of it and a sizeable majority – 60% as of last year -- are in favor of legal abortion.[2]  But contraception itself was technically illegal here until 1965, when the Supreme Court ruled that married couples could use it.  Unmarried couples had to wait until 1972. 

     In many European nations, contraception is cheap, easy to obtain, and often provided free to high school students without question.  Many American high schools are still preaching abstinence.  The result is far fewer abortions in Europe.  In a 2012 study published in The Lancet, the abortion rate in the Netherlands was 9.7 out of 1000 women; in the United States, it was 19.[3]

         People are going to have sex, even if they don’t want babies.  Accepting this fact, rather than trying to outlaw it, is the key way to curtail abortions.  Outlawing it is both ineffective and cruel and will result in many illnesses and deaths.  A great deal of history proves this fact.

[1] Wikipedia, “Unsafe Abortions.”

[2] Gallup Blog, May 1-10, 2018; Vox, 2017.

[3] The Lancet, February 18, 2012, vol. 379, issue 9816, pp. 625-632.