Before Roe

Before the Supreme Court legalized some abortion in 1973’s Roe v. Wade, an estimated 1.2 million American women annually turned to illegal abortion to terminate a pregnancy. Before Roe, an estimated 5,000 of those women died every year from those unsafe abortions. Before Roe, women traded recipes for abortifacients, hoping that they would be safe but willing to take the risk. Before Roe, women whispered about back-alley abortion providers, sharing names out of desperation, hoping the procedure would be safe, and hoping that they would avoid detection. Before Roe, women formed illegal abortion collectives like Jane, trying to make the procedure safer. Before Roe, women like Geraldine Santoro, a 28-year-old Connecticut woman, bled to death on the floors of hotel rooms after a botched abortion.

Nearly a decade after her death, a photograph of Santoro’s lifeless body—naked, crumpled, and covered with her own blood—was published in Ms. Magazine, accompanying a 1973 story on the Supreme Court’s ruling in Roe. The words “Never Again,” in big bold letters framed the black and white crime scene photograph. The photograph, Broadly reports, became an icon of the feminist movement; Santoro’s death was transformed into an image of the desperate brutality and senseless deaths that reproductive restrictions had wrought on women for centuries. When Ms. Magazine celebrated the legalization of abortion in the first trimester, the photograph of Santoro was a promise that there would be no more dead women on hotel rooms floors—a promise that abortion, as the mantra goes, would be safe and legal.

Though Roe changed the landscape of reproductive rights, fundamentally altering the modern perception of a woman’s bodily autonomy, its promise was always just as much fiction as reality. Almost immediately after Roe was decided, states began imposing restrictions on abortion rights, making the procedure less accessible, especially for poor women and women of color. Since 1992, we’ve lived in a post-Planned Parenthood v. Casey country where abortion laws are an often confusing patchwork of arbitrary restrictions, their legality determined by the murky interpretation of the phrase “undue burden.” As of 2017, seven states—Kentucky, Mississippi, Missouri, North Dakota, South Dakota, West Virginia, and Wyoming—only have one abortion clinic. And in states like Texas that adopted TRAP (Targeted Regulation of Abortion Providers) laws, access to reproductive healthcare has rapidly declined, even after the Supreme Court ruled such laws unconstitutional in 2016.

Roe, as my colleague Katie McDonough noted, has always been under attack; the rights it guarantees have always been unstable and subject to the whims of conservative state legislatures. But even so, Roe’s promise—the confirmation that reproductive freedom is a constitutional right—remained both an animating force and a rallying cry for feminists. It engrained certain knowledge in an entire generation who could conceive of the rights of citizenship within a broader framework about what those rights meant, and how they could be both expanded and diminished. The work of Roe is still not complete; abortion in many states is still a right reserved for the wealthy. Women of color, like Purvi Patel, who was jailed in 2015 in Indiana for feticide, remain vulnerable in a legal system that is deeply invested in the surveillance of women’s bodies and the criminalization of women of color.

With the pending retirement of Justice Anthony Kennedy, that work, at least the work as we know it in this landscape, might come to an eventual end. The promise of Roe, perhaps more now than ever, is in peril. On the campaign trail, Donald Trump promised supporters that he would nominate anti-abortion judges to the federal bench and the Supreme Court. It’s a promise that he had largely fulfilled. Recently, Trump nominated Wendy Vitter to serve as the district judge for the Eastern District of Louisiana in New Orleans. Vitter, like her husband David Vitter, has a long history of anti-abortion activism. She’s typical of the kind of judges Trump has sought to promote. Women’s healthcare advocates have warned for months that Trump’s judicial picks could remake reproductive rights for generations to come, slowly chipping away at abortion rights in some of the most conservative states.

But for all of the erosion of abortion rights at the state level and supportive rulings in federal courts, the Supreme Court was more sympathetic to Roe; more deferential to the 40 years of legal precedent supporting the ruling. Kennedy more often than not sided with more liberal justices on abortion. He did so in Whole Woman’s Health v. Hellerstedt, the case that ended Texas’s brutal TRAP laws and reaffirmed Roe in the Casey decision. This isn’t to say that Kennedy embraced anything resembling progressivism. As Dahlia Lithwick pointed out earlier this week, “It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist.” But his vote was at least a stop-gap on reproductive rights; a guarantee that Roe’s promise would never be completely undone—a tacit legal acknowledgment that 5,000 dead women a year was an unacceptable cruelty.

But like other legal protections that many assumed were woven into the American consciousness, reproductive rights have been slowly unraveled, even as most Americans have little taste for overturning Roe. And that undoing, more often than not, is through processes well beyond our direct control. Think of how with the stroke of a bureaucratic pen, the Trump administration rewrote Title X, limiting access to birth control at Planned Parenthood, while opening funding doors to faith-based organizations who advocate abstinence and natural family planning.

After successfully limiting abortion access in numerous states, overturning Roe has always been the ultimate goal of the anti-abortion movement. If Roe is dismantled, it would be a disaster. The Guttmacher Institute notes that 17 states “have laws that could be used to restrict the legal status of abortion,” compared to the eight that have laws protecting the right to an abortion, regardless of Roe.

At this year’s CPAC, anti-abortion groups were clearly emboldened by Trump’s presidency and celebrated the confirmation of Neil Gorsuch. That feeling was echoed after Kennedy announced his retirement. Marjorie Dannenfelser, president of Susan B. Anthony List, a PAC that backs anti-abortion candidates, said that Kennedy’s departure “marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law.”

Dannenfelser’s statement is typical of anti-abortion framing, but it remains telling. Here, the “unborn child” is centered and the person who carries that child is merely an abstraction. Five-thousand dead women are also transformed into an abstraction, and women like Geraldine Santoro are either erased or turned into a didactic story of the wrong kind of woman.