For Richer or Poorer

In his dissenting opinion in Griswold v. Connecticut -- the landmark 1965 case that struck down a law banning the distribution or use of contraceptives -- Justice Potter Stewart asserted that "[a]s a practical matter, the law is obviously unenforceable." This argument was odd, since it was made in favor of the statute's constitutionality. After all, if a bill can't be fairly enforced without rendering large parts of the Bill of Rights a dead letter, this would seem to concede the due process and equal protection arguments against the law (which were essentially the grounds on which the law was challenged, and struck down).

In addition, however, his claim was somewhat misleading. As Lucas Powe noted in his magisterial history of the Warren Court, if "the law was a dead letter, it was an effective one. There were no birth control clinics operating within the state." Which is to say that, while the state could not prevent people from using the contraception they had nor prevent rich people from quietly getting birth control prescriptions from the right doctors, the state -- through this law -- could effectively prevent poor people from obtaining contraception. As Powe notes, Griswold was not only a privacy case; it was also a poverty case in disguise.

On the occasion of the 34th anniversary of Roe v. Wade, it is worth noting that the same thing was true of statutes banning abortion. Even when abortion was formally illegal in every state, safe abortions performed by doctors in hospitals were widely available to women with the right connections. (The Nixon appointee Lewis Powell joined Roe largely because, as a corporate lawyer in Richmond, his firm had arranged for the daughters of wealthy families to obtain gray market abortions. He understood that the lofty abstractions used to defend abortion bans didn't reflect common practice.) The Supreme Court's 1973 decision didn't so much create a right of abortion as extend the de facto access to abortion enjoyed by rich women more widely.

As many feminist critics have pointed out, in the ensuing decades the Supreme Court has not extended access to poor women as much as it could have -- particularly crucial was its holding in Harris v. McRae that abortion could be excluded from the services provided to poor women under Medicaid. Still, because of the availability of subsidized abortions from private clinics, and the effect of extending and amplifying information about the availability of abortion services, Roe greatly expanded abortion access for women who had earlier been faced with the unpalatable choice of obtaining a potentially unsafe black-market abortion or carrying an unwanted pregnancy to term.

Once Roe is understood in these terms, there are two important lessons to be drawn. The first is that the compromises put forward by people seeking the "center" of the abortion debate in practice cede virtually all the practical ground to pro-lifers. Affluent women will get abortions no matter what, and thus the anti-choice lobby would give up virtually nothing by agreeing to formal protection of their legal rights; but heavily regulating abortion (especially when states make it difficult for abortion clinics to operate) severely erodes the reproductive freedom of poor women. This is particularly evident when it comes to the holy grail of abortion "centrists," the pre-Roe legislation in some states that delegated decisions about abortion to panels of doctors. Such policy regimes do nothing to ensure that women will obtain abortions under circumstances that abortion "centrists" consider appropriate, but do (because they place a great premium on women having the resources and knowledge to venue-shop) strongly exacerbate class biases in abortion access for no good reason.

In addition, however, assessing the actual practice of abortion in the pre-Roe period provides a powerful rationale for the Court's decision. As I have written before, it is simply untrue to claim that the Supreme Court's decision in Roe "came out of nothing" or was not based in extensive precedent. For obvious reasons, most opponents of Roe can't say in public that they believe that Griswold, which set the most important privacy precedent on which Roe rested, should be overturned -- not only because the decision was correct, but because (as Robert Bork found out) this position would not be publicly acceptable. But most attempts to (in the words of Reagan's Solicitor General Charles Fried) "pull the thread" of Roe while maintaining Griswold are incoherent. As Justice Stevens wrote in a 1986 decision:

There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more "fundamental" to the individual's freedom than the other, surely it is the postconception decision that is the more serious.

As long as Griswold is good law, a woman's reproductive freedom is plainly a fundamental right. And the actual way abortion laws were written and enforced prior to Roe -- with affluent women given a de facto exemption, with (in most cases) no criminal sanctions levied against women who obtain abortions at all, and with the rare prosecutions of black market abortions often unable to garner jury convictions -- makes it very difficult to argue that the state's interests can trump a woman's fundamental rights. If there was a social consensus that a fetus has the status of a person, the issue would be different and much more difficult. But given that the abortion laws were much more consistent with regulating female sexuality than protecting fetal life, the Court was correct to strike them.

A more realistic look at abortion laws in practice also provides a compelling pragmatic defense of the Court's action. Roe was clearly permitted, but not necessarily required, by the Court's precedents. As the Court's doctrine has long recognized, the Court is in the strongest position to strike down legislation when it is doing so to protect the rights of relatively less powerful minorities. Some scholars have argued that Roe doesn't qualify as such a case, since women make up a nominal majority of the electorate. This is not just misleading because women are underrepresented in state and federal legislatures and have less money and social power. It is also misleading because, once it becomes clear that Roe was not so much about a right to abortion as turning a de facto right enjoyed by more affluent women intoto a de jure right available to all women, the Court's action actually fits well within the finest tradition of protecting the rights of society's least powerful. (And it also makes the leeway granted to abortion regulations that disproportionately affect poor women in the Court's recent decisions all the more regrettable.)

Properly understood, Roe is not only consistent with unassailable precedents but with the general tenor of the Court's noblest post-New Deal rights jurisprudence. It should be proudly defended by advocates of women's reproductive rights. And those advocates should always emphasize the effects of abortion law in practice, rather than allow the anti-choice lobby to sustain the debate at a level of lofty abstraction.

Scott Lemieux is an assistant professor of political science at Hunter College, CUNY, and writes for the blog Lawyers, Guns, and Money.

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