The Last Abortion Clinic
  • home
  • watch online
  • abortion wars
  • shifting attitudes
  • map
  • discussion

jack balkin

balkin

Balkin is a professor of constitutional law at Yale Law School and the editor of What Roe v. Wade Should Have Said, a collection of essays in which several of the nation's top legal experts rewrite the controversial Supreme Court decision. In this interview, he describes the evolution of American abortion law through major Supreme Court decisions from Roe to the present, and the surrounding political debates that affected and informed those decisions. "[T]he story of abortion rights doesn't begin with the Supreme Court, and it doesn't end with the Supreme Court," says Balkin. "Rather, there is a back-and-forth between the political process and the Supreme Court, and over time, the law of abortion changes." He also explicates exactly what's at stake in Ayotte v. Planned Parenthood of Northern New England, the blockbuster abortion case the Supreme Court will hear this fall. This is an edited transcript of an interview conducted on Sept. 16, 2005.

Tell me what Roe v. Wade said.

Roe v. Wade did two things. The first thing it did was [it] said that states could not criminalize abortion. The second thing it said was that there was going to be a rather elaborate framework for determining when the states could regulate abortion. This was the famous trimester system that divided the term of pregnancy into three three-month periods. And many people objected to the trimester system because they thought it didn't leave enough discretion in the hands of state legislatures.

Tell me what the trimester framework said.

Well, the basic idea of the trimester framework that Justice [Harry] Blackmun came up with in the Roe opinion was that in the first trimester, the first three months, states could have very few regulations of the right to abortion. Basically, the decision to have an abortion was between the woman and her physician. States could require that a licensed physician perform the abortion, but outside of that, there were very few regulations.

In the second trimester, until about the point of viability, states could have health regulations that would help secure the health of the mother, but what they couldn't do was pass regulations that would restrict abortion for reasons other than securing health.

Then after viability came the third trimester. And in the third trimester, the Court said that states could prohibit, regulate or even completely prohibit abortions except where it was necessary to preserve the life or the health of the mother. So what you have in effect is a three-stage set of rules all throughout the pregnancy that tell states what they can regulate and what they can't regulate. That was the trimester system.

Tell me about the companion decision to Roe in the case of Doe v. Bolton.

Doe v. Bolton was the companion case … that came out of Georgia. Georgia had passed an abortion reform statute, and the challenge to the abortion statute in Georgia that the Supreme Court heard was based on the restrictions that Georgia imposed on the reasons why you could get an abortion and the procedures you had to go through in order to get an abortion.

And what the Supreme Court did in Doe v. Bolton was to say that where the state piles on procedures whose basic job is to slow down the process of getting an abortion or make it more difficult for women to get an abortion, those things are unconstitutional unless they have some clear relationship to preserving the woman's health or good medical practice.

The Roe we have today is not the Roe that we had in 1973. And I would be willing to predict  that the Roe that we'll have in 2023 will not be the Roe that we had in 1973 or in 2005.

And the Court said in Doe v. Bolton that the things that Georgia did, the impositions they made, weren't the sort of impositions they made for any other kind of surgery, no matter how dangerous or life-threatening. There seemed to be special rules basically designed to impede and slow down the ability of women to get abortions if they were medically indicated, and so the Supreme Court said, "You can't do that." …

Tell me about the political climate around Roe.

… Many people think that the Supreme Court is a countermajoritarian body: It strikes down laws elected by popularly elected legislatures. But when Roe v. Wade and Doe v. Bolton were decided, public sentiment was actually in favor of recognizing a right to abortion, whether abolition of abortion rules or abortion reform. Four states had already repealed their abortion laws; 13 states had passed what are called abortion reform statutes; and many, many other state legislatures were considering abortion reform or abortion repeal. Gallup polls and other opinion polls showed that a majority of Americans supported the right to abortion. Mainstream organizations like the YMCA and the AMA [American Medical Association] had come out in favor of abortion rights. … So when the Supreme Court decides these cases, it's not swimming against the tide. …

Generally speaking, the Supreme Court does not travel too far a distance from the center of the national political coalition. … When Roe was decided, the Supreme Court was a little bit ahead of where state legislatures were. [Many state legislatures] were considering abortion reform, but a majority of states hadn't yet passed abortion reform statutes. The popular opinion, of course, was pushing hard for abortion reform and abortion repeal.

And at that very moment in the early '70s, the pro-life movement really gets started, because people who think abortion is immoral suddenly realized that state legislatures, democratically elected legislatures, were beginning to change their abortion laws. And that energized them. And they said, "We really need to do something now, or various states all across the country are going to legalize abortion."

And so people often think that the pro-life movement was started by Roe. It precedes Roe, but Roe gives it a very powerful and palpable target at which to aim, because it's one thing to say, "We don't like what the New York legislature did" -- the New York legislature had passed an abortion repeal statute the year before Roe -- but the New York legislature's a democratically elected body, and it's only for New York.

On the other hand, when the Supreme Court decided Roe, it made a decision that affected every state all across the country. And the justices are not elected. So opponents of abortion could combine their moral opposition to abortion with a procedural objection. The procedural objection was that in our system of government, this important decision should have been made by legislatures and not by courts.

Although the objection based on leaving it to legislatures is very strong, when you look throughout American history, you'll often find that the Supreme Court represents changes in popular sentiment through constitutional adjudication. Two classic examples are the Supreme Court's decisions on racial equality, where it reflected a growing consensus that segregation was wrong in Brown v. the Board of Education, and sex equality, which, interestingly enough, occurs just about the same time as Roe v. Wade is decided. …

Tell me what was happening after Roe? What kind of activity were you seeing on [the pro-life] side?

Very soon after Roe, you began to see … a really important event in American political history. People who were part of the New Right, people like Phyllis Schlafly, for example, who also were very upset about the ERA, the Equal Rights Amendment, which would guarantee equality for women, and evangelical Christians, who had stayed out of politics for a very long time, and conservative Christians and Catholics suddenly realized that they had a common set of issues they all cared about. They ranged from school prayer to pornography to abortion, and even the beginnings of concern about homosexuality. These were all the beginnings of what we now think of as the culture wars. And it's during this crucial period after Roe v. Wade that these various strands of what we now understand as the conservative movement discovered each other and realized that they had common cause and began to organize politically.

… Ronald Reagan becomes their standard-bearer. Ronald Reagan realizes that here is a new constituency that will support him. Reagan himself had not been a major figure in the pro-life movement early in his career. Indeed, he had signed an abortion reform statute in California. But in seeking the presidency, first in 1976 and later in 1980, he realizes what this new coalition means, and he welcomes evangelical Christians, Catholics and also, of course, the New Right, which he had always been a part of, into the party. And they formed the winning coalition that helps defeat Jimmy Carter in 1980.

Tell me about the Webster decision and what the Webster decision said.

After 1987, when Justice [Anthony] Kennedy was appointed to the Court to replace Justice [Lewis] Powell, it looked to many observers as if there were finally enough votes to overturn Roe v. Wade, and the vehicle for doing so was a case out of Missouri called Webster [v. Reproductive Health Services].

Webster involved a series of different regulations of abortion which were designed to make it more difficult to get abortions, and it also included a statement by the Missouri legislature that life begins at conception. The case goes up the Supreme Court, and many people think, this is it; Roe is going to be overturned.

And Justice [Antonin] Scalia, I think, probably did want to overturn Roe in Webster, but, in fact, Justice [Sandra Day] O'Connor wouldn't go along. Justice O'Connor's view was that under the existing precedents, as she understood them -- and she understood them very narrowly -- the law that Missouri passed was perfectly OK. In her view, none of these regulations posed what she called an "undue burden" on a woman's right to choose. This was a formulation that she at first articulated back in 1983, and she consistently articulated this formula.

And you know what happened? Years later, that became the basic law that was used in [Planned Parenthood of Southeastern Pennsylvania v.] Casey to determine the test for abortion regulation. So what happens is [William] Rehnquist and Scalia and Kennedy, too, were quite willing to hold that there was no fundamental right to abortion and essentially overturn Roe, but O'Connor wouldn't go along.

And as a result, Roe was in kind of a limbo in 1989. Webster had upheld all of these Missouri regulations, so it didn't seem consistent with the Roe that everybody thought they knew. But the Court hadn't gone one step further and just said, "Roe's overturned." So there's a period [from] 1989 when Webster is decided [to] 1992 [when Casey is decided], when nobody is quite sure what the status of the right to abortion is.

And during this period something very interesting happens. Pro-choice people who had relied on the courts to protect the right to abortion suddenly realized that it might be taken away from them, and they began to organize. And they start fighting really hard in state legislatures. They win some battles; they lose some. But it has the interesting effect of galvanizing people who are pro-choice. The 1992 election is coming up, and of course George [H.W.] Bush is running for re-election. And at that point, the Supreme Court takes a case out of Pennsylvania. … After Webster, the Pennsylvania legislature got together and they passed a new bill, which included many of the same provisions that the Court had struck down in [a] 1986 [case called] Thornburgh [v. American College of Obstetricians and Gynecologists]. Essentially they were saying to the Supreme Court: "So there. We don't like what you did before, and we're going to give you the same bill, or practically the same bill, and we're going to see whether or not you uphold them."

Pennsylvania had decided to pass a series of laws. … One was a law that said that if a woman became pregnant and wanted to have an abortion, she had to notify her husband. That was the spousal notification law. The other law said that if you wanted to get an abortion, you had to go to a health provider. The health provider would provide you with information that had been supplied by the state of Pennsylvania, and then you had to wait 24 hours and come back again. That was the 24-hour waiting period [law].

And both of these provisions … made it more difficult to get an abortion. First of all, the husband might intervene if he found out that the wife was having an abortion. And in some cases, the husband might get violent. That was the concern of pro-choice people. And the 24-hour waiting period would interfere with the right to abortion because it would add to the expense of getting an abortion. Many women, particularly poor women, might have to travel considerable distances. So the problem is they'd have to take care of things at home. They'd have to make some excuse to the people that they knew at home. They'd have to get some time off from their employer, and then they'd have to pay for the transportation and for the overnight hotel stay. And for many women, they wouldn't be able to manage it -- at least very poor women or women who were at the margins.

And [it's] my guess [that that was] exactly what Pennsylvania intended. They wanted to create some additional burden on women that would make it more difficult [to obtain an abortion], because that would reduce the total number of abortions. …

After Webster , it was unclear whether there was anything left to the Roe decision. And so pro-life forces in Pennsylvania thought, why don't we test and see? Maybe Justice O'Connor would finally decide to overturn Roe. And what we'll do is we'll pass laws that are inconsistent with existing precedents.

In Webster, she had said that nothing Missouri did was inconsistent with previous precedents, so what they did in Pennsylvania [was say]: "If that's your view, Justice O'Connor, OK, we'll pass something that's inconsistent with previous precedents. In fact, we'll pass some of the same laws that the Court struck down in 1986 in a case called Thornburgh. And now we'll know whether you think you should overrule Roe or not." And that's really part of the whole strategy behind Casey: It was to get the Court to finally say whether Roe would be overturned. …

What was the court's verdict in Casey?

What the Supreme Court did with Casey was to give with one hand and take away with the other. On the one hand, they said that Roe v. Wade remains the law of the land. … On the other hand, they placed all sorts of limitations on Roe as we have come to know it.

First, they said that the trimester framework that was in the original Roe opinion was to be jettisoned. No longer would you divide the pregnancy up into three parts. There were only two periods: the period up to viability and the period after viability. Up to viability you could have all sorts of regulations. After viability you could completely prohibit abortion except where necessary to preserve the life or health of the mother. That was originally in Roe, and it stayed in Casey.

The second thing they did was to say that the right to abortion is not a fundamental right; it's just a "constitutional liberty interest." Well, that sounds like legal mumbo jumbo. What it meant was that instead of having to show that restrictions on abortion were absolutely necessary to achieve a compelling state interest with no other possible way of achieving it, instead, all you had to show was that a restriction on abortion did not impose an undue burden on a woman's right to choose.

So what is an undue burden? Well, we're not quite sure, but we do know that it allowed a lot more regulation and restriction than before.

In addition, the Supreme Court said that it was perfectly OK for states to discourage abortion by trying to persuade women and educate them so that they did not choose abortion; that states could prefer childbirth over abortion and draft their laws so as to push women toward childbirth rather than abortion as long as they did not impose an undue burden on a woman's right to choose.

The last thing that the Supreme Court did in Casey … is that in Casey, for the first time, the Supreme Court begins to talk in terms of women's equality. In the Roe opinion, Justice Blackmun, in the face of what was going on all around him -- that is, the second wave of American feminism -- nevertheless insisted on talking about the right to abortion as a liberty right, which involved a decision of a woman and her doctor. At the same time, feminists were marching through New York City demanding abortion rights, arguing that it was a right of women's equality. But the Court didn't see it that way.

About 20 years later, the Court finally catches up to American feminism, and it begins, in a very hesitant way but in a kind of clear way, to say that "We now understand that the issue of abortion is also an issue of women's equality in society as well as an issue of their liberty." …

Thinking about abortion in terms of equality as opposed to liberty is important conceptually from the standpoint of constitutional interpretation. Why? Well, the Constitution says that you can't be denied liberty without due process of law, and many people were uncertain what the meaning of that liberty was, and they weren't certain whether it meant that as long as you passed a statute according to due process of law you could, in fact, restrict liberty. This was a very contentious issue.

On the other hand, very few people doubted by the middle of the '70s that when the Constitution says that states can't deny equal protection of the laws that equal protection of the laws secured equality for women. So if you base the right to abortion on women's equality, many people believe that it was on a much more secure footing … than if you based it on the idea of due process of law.

Tell me what happened following Casey in terms of state legislation.

What Casey did was not just simply retain Roe or what it called "the central holding" of Roe; it also signaled to state legislatures around the country that they could impose greater restrictions on abortion than the Supreme Court had been willing to uphold before.

And states responded. They passed 24-hour notice bills. They passed parental notification laws, where you require that the parents be notified. They passed recordkeeping requirements, and they also changed rules about the availability of medical insurance for abortion. Some states reduced the number of places where you could get an abortion because the state hospitals wouldn't provide abortions, and state hospitals might be in some places the only place within driving distance of many women, so women would have to travel considerable distances to find an abortion provider in their state or in another state. And when you combine the fact that state hospitals won't provide abortions with [the new] 24-hour waiting periods -- which increased the cost, especially for poor women, of getting abortions -- you're practically reducing the availability of abortion.

I should point out that although these state regulations probably did have some effect in reducing the total number of abortions, in the period after Casey, the most important factor in reducing the total number of abortions was greater access to contraception and better education about contraception. So what's ironic is the whole fight over increased regulation of abortion that comes after Casey in fact wasn't the most important issue that people should have been focusing on if they actually wanted to reduce the number of abortions. What they should have been doing was making sure that women, and especially young women, and especially poor women, had access to contraception and were educated about its use. …

Tell me how the pro-choice movement responded to Casey.

I think both the pro-choice and the pro-life movements were ambivalent about Casey. On the one hand, the Supreme Court had signaled to the pro-life movement that states could pass more restrictive abortion laws. On the other hand, they had reaffirmed Roe. And many people in the pro-life movement felt betrayed by the Republican appointees of Reagan and Bush, who had essentially reaffirmed Roe's central holding in Casey.

Then, if you turn to the pro-choice people, they were also deeply ambivalent. On the one hand, the Supreme Court had said, "Roe is still good law, and there's a right to privacy, and it's constitutionally protected." On the other hand, they had chipped away at the rights significantly. It was no longer a fundamental right. It was a mere "liberty interest." Their test was no longer "strict scrutiny" -- that's the legal test -- but now it's "undue burden." And states were told that they could actively discourage abortion, something that pro-choice forces didn't think was right. So neither side really felt like Casey was a victory. …

One lesson, however, you can take from the fact that neither the pro-choice nor the pro-life people saw Casey as a complete victory is that the Supreme Court itself was responding to the center of national public opinion, as it always does in the long run. The Supreme Court, viewed from this perspective, understood that it had gotten a little bit ahead of the curve of public opinion in 1973, and what it did was engage in a sort of midcourse correction, whereby it secured a basic right to abortion but allowed considerable leeway for states to regulate it, and that turns out to be about the middle of national public opinion. That doesn't mean there aren't people on either side who feel very strongly in both directions, but if you look at sort of the sweet spot of the national political coalition, Casey really wasn't that far away from it. And of course, as the national political coalition changes over time, my prediction is the Court will inch toward that new center as well.

[Did the pro-life and pro-choice movements change their strategies as a result of Casey?]

Yes. I think that both the pro-life and pro-choice people realized they had to change their strategy in light of Casey. Pro-life people said to themselves: "Well, the Supreme Court has said they're not going to overrule Roe. Well, what are we going to do? We think it's immoral." And they said: "What we'll do is we'll change public opinion. We will elect more people who think like us to the legislatures. We will push hard to change the judges to get more pro-life judges, and we will chip away by finding issues where we think the majority of Americans really are sympathetic to our views."

So they picked things like parental notification. Why? Because most Americans who think that abortion is a private matter don't think that it's a matter solely for minor women. They think private means private within the family; it's a family decision. So they thought that parental notification rules were generally a good idea because it said that the government would stay out of the issue, but the family would get together and decide what was best for the whole family. … So that's one place where they fought.

The second place where they decided to fight was in those abortion procedures that more people would consider to be relatively gruesome and unappetizing and cause people to shy away from [them]. And so they picked a particular kind of abortion procedure used in a very rare set of cases called dilation and extraction (D&X), and they redefined and renamed this procedure -- confusingly, I think -- tying it together with another set of procedures, and they called them partial-birth abortion. …

There is no medical procedure called partial-birth abortion. There are a series of different procedures, some occurring early in the pregnancy, some occurring late, some rather common, some very, very uncommon and only medically indicated when there's almost no other alternative in order to ensure safety. But the brilliance of the pro-life strategy was to say that we can describe them all under the same rubric [of] partial-birth abortion, and then we can point out to Americans that these partial-birth abortions, these late-term abortions, are really quite gruesome, and no one would ever want to allow doctors to perform them. We should ban them because they're morally upsetting; they're immoral. And that's what abortion really is at the end of the day. Partial-birth abortion is just the most extreme example of what is a really deeply immoral practice.

That was the strategy: to show Americans that what abortion meant in its most extreme forms was something that Americans really couldn't support. And in that way, they hoped to show up and convince Americans, especially in the middle of America, that they really didn't support Roe v. Wade. …

. .. And as a result, Congress passed bans on partial-birth abortion during the Clinton years, and Bill Clinton vetoed them. Then Congress passed such a ban again, during George [W.] Bush's administration, and he signed it. That case is [now] going in front of the Supreme Court. …

[How does the Supreme Court interpret what is constitutional regarding abortion?]

The most important thing to understand about how the Constitution gets interpreted in this country is that although the Supreme Court says that it's the final arbiter about the meaning of the Constitution, it really isn't. What happens is that political parties and social movements and political actors, like the president and Congress, have different views about what the Constitution means, and over time their views influence how the Court interprets it. They influence both by passing new bills like the partial-birth abortion bill that was passed by Congress and signed by President Bush. And they present them in front of the Court and say, "We think you got it wrong this last time, and we want you to think it over again."

And sometimes the Court changes its mind because older justices die or retire and are replaced by new justices, who are appointed by the president and Congress. And sometimes the Court responds to what it understands to be long-term changes in American public opinion. That's what happened, by the way, in Brown v. the Board of Education. …

And so the story of abortion rights doesn't begin with the Supreme Court, and it doesn't end with the Supreme Court. Rather, there is a back-and-forth between the political process and the Supreme Court, and over time, the law of abortion changes. And it has changed pretty much continuously from 1973 to the present. The Roe we have today is not the Roe that we had in 1973. And I would be willing to predict that even if Roe is not overturned, the Roe that we'll have in 2023 will not be the Roe that we had in 1973 or in 2005.

Tell me about Ayotte, [next abortion-related case that the new Supreme Court will decide], and whether you think that will actually effect the standard that was set in Casey.

The Supreme Court in the 2005 term is going to decide a case called Ayotte [v. Planned Parenthood of Northern New England ] out of New Hampshire. There are two big issues in the case.

One is this: New Hampshire has a parental notification law. The parental notification law allows for a judicial bypass of parental notification, but it doesn't allow specifically for a bypass where a minor woman's health is at risk. Those are cases where there's an emergency and where an abortion has to be performed pretty quickly or there will be a serious risk to health.

And the first question is whether or not abortion laws that apply to minors -- even parental notification laws -- have to specifically include an exception for where health is endangered, for those cases in which there's just not enough to time to provide notification. That's the first issue. …

The other issue in Ayotte is highly technical, but it turns out it's crucial. It's far more important than the health issue. Here's the idea: Let's suppose you have a state like Missouri or Pennsylvania, which are famous for being opposed to abortion and have passed considerable regulations of abortion over the years. They pass a new statute. The statue contains a whole bunch of different restrictions on abortion.

Now, the way it usually works until now is, a plaintiff goes to court and says, "This restriction here will impose an undue burden on a lot of women." And if they convince the court that's so, then the court issues an injunction, and the statutes cannot be applied by anyone. The statute is gone and leaves the playing field where it was before the statute was passed.

But in this case, the Supreme Court is going to consider a different rule, and here's how this rule would work: You go to court, and you say, "This law causes an undue burden on a significant number of women." The court says instead: "Well, as long as there's some women for whom it's constitutional, as long as there are some women for whom the law doesn't violate their rights, the law stays in place. And we will only say that it doesn't apply to you."

That's called an applied challenge. It means the law stays on the books. And it also means that over time, you have to bring a whole series of different plaintiffs in, each of which goes before the court and says, "This law is unconstitutional as to me."

So it greatly increases the costs of bringing abortion litigation, and it greatly impedes the ability of getting rid of unconstitutional statutes. The practical effect is to allow states to pass much more restrictive laws affecting abortion than they ever could before, and it's all through a technical device. …

There's an interesting analogy [for this case]. The analogy is school desegregation. [It's as if] the way that the Supreme Court decided Brown v. the Board of Education meant that instead of giving relief to all these black schoolchildren in the South, they left it so that you had to go to each individual school district and fight out in each individual case. …

[Does this case signal a new strategy in the pro-life movement?]

In some ways, the strategy of the pro-life forces [at work] in Ayotte is another masterful stratagem. It's another masterful way of getting to where they want to go. There are two basic goals they have. One goal is to try to slowly convince Americans that they're just as uncomfortable about abortion as pro-life folks are. That's what the partial-birth abortion litigation is all about.

The other way is to chip away at Roe through technical means that fly under the radar so that most people really don't understand what the practical effects are so that over time, more and more Americans will feel morally uncomfortable with abortion, and there will be fewer abortions because of technical hurdles, so that eventually, perhaps five years from now, a decade from now, maybe even 20 years from now, pro-life forces could go back to the Court and say: "We know we asked you in 1992 to overrule Roe, and you didn't. But don't you think now, in light of how Americans feel about abortion and how practically unavailable abortion is, that it's time to simply say that there isn't a constitutional right to abortion?" …

[What if] Ayotte decides that there is no health exception [to parental notification], at least in the case of minors?

Right now pro-life and pro-choice people are fighting over what's called health exceptions. They can occur in lots of different statutes: parental notification statutes, statutes involving partial-birth abortion, waiting-period statutes. [In] any kind of abortion regulation you can imagine, the issue of a health exception arises.

Why? Well, because one of the rights the Supreme Court originally gave women in Roe was the right not to have to sacrifice your life or your health in order to bear a child. That's one of the key rights that is protected by Roe.

The question then is, what's health? Should we construe health broadly so that mental health is included? Should we construe it narrowly so that you have to have a very serious threat to your health before a health exception kicks in? That's why the two sides are fighting over the scope of the health exception, and what the Supreme Court says about the health exception in the New Hampshire case, Ayotte, could be transferred to a whole series of other cases in which health is also an issue. …

Editor's Note: On Jan. 18, 2006, the Supreme Court issued its ruling in the case of Ayotte v. Planned Parenthood of Northern New England and found unanimously that a lower court was wrong to strike down a New Hampshire abortion law requiring parental notice and a 48-hour waiting period before a minor could obtain an abortion because did not provide an exception if the girl's health was in danger. In its ruling, the Supreme Court agreed with the lower court that the law needed such a health exception, but it disagreed that nullifying the entire law was the best solution.

In her published opinion, Justice Sandra Day O'Connor wrote that to do away with the law because it lacked the exception was "the most blunt remedy" to the problem, and she asked the lower court to consider adding an emergency health exception to the statute or to render the law unenforceable in emergency situations. The case has now been remitted to the Federal District Court of Appeals for the First Circuit, which must reconsider the case.

Also under consideration in this case was the Court's standard of review regarding abortion laws, crafted by O'Connor in the 2000 case Stenberg v. Carhart
and used to determine if a law places an "undue burden" on a woman seeking an abortion. However, the Court chose to sidestep the issue of the "undue burden" standard and instead issued a narrow ruling affecting only the lack of a health exception in the specific case at hand.

Could you talk a little bit about the differences in access to abortion for poor women as opposed to middle class women?

As the law of abortion has developed over the course of 30 years, the right to abortion is largely a right enjoyed by middle-class women and affluent women as opposed to poor women. There is a strange sense in which the basic contours of the fight over abortion rights really haven't changed over the course of the 20th century. In the middle of the 20th century, public health advocates were among the strongest proponents of abortion reform, because their view was that if you were rich or well connected, you could get an abortion. If you were poor, you had to take your chances, or you couldn't get one at all. There was a divide between rich and poor. It was unfair, it was unjust, and public health advocates thought that it created a serious public health crisis, because women who were poor, who couldn't afford abortions like rich women, would settle for unsafe abortions, and that would be a public health problem.

Well, wind the clock forward 30 years. Now we have a series of abortion regulations that the Supreme Court allows as a kind of a political compromise between those who support the right [to abortion] and those who are morally opposed to it. And it turns out that those compromises lead to the constitutionality of abortion regulations that still pretty much allow middle-class women and affluent women to obtain abortions, but impact most heavily on poor women. There are 24-hour waiting periods, for example: They don't really have much of an effect on middle-class women or affluent women, but they have a serious impact on women who are poor.

Lots of other regulations that affect clinics are things that affect the poor more than middle-class and affluent women, and one suspects that if Roe were overturned, we would get a series of statutes that would make the divide between poor and rich even more obvious in terms of who can get abortions and who can't. That is, in some ways, the continuing theme of the fight over abortion in the United States. And yet it's not one that [either] pro-choice or pro-life people see as central. And yet it's been a continuing issue throughout the 20th century and into the 21st. …

[Do you think that with two new Republican-appointed justices, the Supreme Court will try to overturn Roe outright?]

Everybody now understands that between the two major political parties, the Republican Party is more pro-life, and there are many more pro-life people in the Republican Party. And yet the Republican Party and Republican politicians, including President Bush, really don't want to see Roe v. Wade overturned. They'd like to see it narrowed. They'd like to see it made practically irrelevant in American life, but they don't want to overturn it.

Why is that? It's because American political parties are coalitions of people of very different views. The Republican coalition consists of business conservatives, suburbanites, women who are in suburbs and rural areas, libertarians who believe that the government should stay out of people's private lives, and religious and social conservatives. As long as the right to abortion is more or less protected in the United States, a lot of those people can happily stay in the Republican coalition. Libertarians can stay. Business conservatives can stay. Suburban women and rural women can stay, because they figure, basically, you can get an abortion if you need to; if you can scrape the money together, you can get an abortion.

On the other hand, if Roe v. Wade is overturned, then everything is on the table, including criminalization of abortion. And at that point, libertarians, business conservatives and lots of suburban and rural women and women in urban areas, too, will say to themselves, "I'm not sure I want to be in a party that supports criminalizing abortion." At that point, they will find the Democratic Party more attractive. And not all that many people have to bolt the Republican Party for them to lose control of Congress and the presidency, just a relatively small number. And the Republicans understand that. That's why the Republican strategy is to narrow Roe, cut back at it, weed away at it, but never officially overrule it. …

home + introduction + watch online + the abortion wars + shifting attitudes + interviews
map + related FRONTLINE: "abortion clinic" + discussion + teacher's guide + readings & links
producer's chat + tapes & transcript + press reaction + credits + privacy policy
FRONTLINE home + WGBH + PBS

posted jan. 19, 2006

FRONTLINE is a registered trademark of wgbh educational foundation.
photo copyright ©2005 corbis
web site copyright 1995-2014 WGBH educational foundation

SUPPORT PROVIDED BY

NEXT ON FRONTLINE

Losing IraqJuly 29th

FRONTLINE on

ShopPBS