Protecting Family Integrity: The Rightward Drift in the Courts
This right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
justice blackmun, Roe v. Wade, Jan. 1973
I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided.
justice blackmun, dissent, Webster v. Reproductive Health
Services, July 1989
Antiabortion forces consider January 22, 1973, the date on which Roe v. Wade was decided, to be a day of infamy. They see the Supreme Court and other federal courts as bastions of liberalism in regard not only to abortion but to policies such as affirmative action, racial integration, and the prohibition of school prayer. In reality, the role of the federal courts, including the Supreme Court, in mediating and interpreting public policy is much more complex than any conspiracy theory would suggest. On the broadest level, the courts more often follow than initiate political trends. Within that framework, the courts play a specific part in constructing the ideology that legitimates the policy. In particular, they provide legal and conceptual tools that accommodate conservative cultural and political tendencies to a prevailing tradition of liberal institutions and liberal procedures.
Liberal tradition is not static but changes as historical conditions change. At the moment, there are several principles in the ideology of the liberal state that have been incorporated into popular understanding and that New Right and neoconservative politicians find it difficult to dislodge even from their own rhetoric. They include (1) deference to medical authority and medical rationales for policy; (2) the legitimacy of state intervention in matters affecting population, reproduction, and sexuality; and (3) voluntary consent and freedom of choice. In reproductive rights litigation, the courts have functioned to accommodate an increasingly conservative social content to these formal liberal principles.
This is not to deny that the courts are essentially arenas where political struggles are fought and, sometimes even on progressive terms, are won. Radical groups and feminists sometimes win victories in the courts because the courts reflect political currents, and at certain moments progressive movements are strong. In the long run, however, the courts play a predominantly ideological role, using legal language and techniques to resolve the tension between liberal and conservative elements in the capitalist state. This tension has existed throughout the history of capitalism, regardless of political parties, and persists today in a climate of right – wing resurgence. An image of New Right policies suddenly superimposed on the capitalist state is false. It obscures both the process of accommodation through which conservative revisions of the dominant liberal ideology get hammered out and the conservative values and practices contained within the liberal state all along. No president, we should recall, has ever publicly supported legal abortion; and the state-sponsored attack on abortion rights was initiated under a Democratic-controlled Congress and a Democratic administration. (President Carter’s refusal to support Medicaid-funded abortions was premised on the sanctimonious observation that "some things in life are just unfair."1)
Similarly, the Supreme Court began its backtracking from Roe v. Wade well before a conservative administration was in office. In fact, liberal principles, those applied by the courts in rationalizing their decisions, contain conservative as well as radical potentialities. "Medical necessity" or "health reasons" may be used to expand women’s access to necessary reproductive health services or to restrict women’s sphere of action in favor of parents’ or physicians’ authority. "Privacy" may be invoked to defend a woman’s right to decide about abortion and the state’s obligation to provide access to abortion, or it may be invoked in the name of abandoning public services to the private sector. Even "consent" may be turned around so that the "freedom to choose" is subordinated to the "capacity to choose." The social content of well-being or freedom is never determined by liberal principles. Politics determine that content, and the courts use legal doctrine and procedures to legitimate it.
The recent history of abortion decisions underscores this political role of the Supreme Court and demonstrates a "pendulum" theory: The Court’s views swing whichever way it perceives the dominant trends in national politics to be going, and it functions largely as a barometer of those trends.2 From Roe v. Wade onward, Supreme Court pronouncements on abortion may be read as a series of knots and fences, drawn increasingly tighter, hedging in the "right" to abortion with qualifications and exceptions that limit its practical availability among the women most in need of it: poor women and teenagers. Even in periods of heightened liberalism and attention to social welfare, the feminist concept of abortion as rooted in women’s right/need to control their bodies was never accorded legitimacy by the state.
This skeptical interpretation of recent state policy making regarding abortion and the Supreme Court’s role in it is very different from the view that "with the advent of a new national administration and a new Congress, the abortion debate shifted from the courts to Congress."3 The implication here is that the courts were the "liberal" force in national abortion politics and that the conservative trend was inaugurated with the Reagan administration in its ties with the New Right, whose stronghold since the 1980 elections has been the Senate. In fact, Congress began engaging in "the abortion debate" in 1977 with its passage of the first of an increasingly restrictive series of amendments to limit Medicaid funds for abortion. During the congressional debates on the Hyde Amendment and when the right-wing, antifeminist current was in full swing, no one in Congress stood up and defended a woman’s right to decide about abortion because it is her body and she is the one who will bear the consequences of pregnancy and childbearing. On the contrary, the most liberal congressmen scrambled to assure their constituents that they were opposed to "abortion for convenience."4 The Supreme Court responded with characteristic deference, anxious to smooth over rather than accentuate the more liberal dimensions of Roe v. Wade.
Thus the reactive shifts in abortion politics must be seen in terms not of a constitutional balance of powers but of the totality of political forces that by the late 1970s had come to determine reproductive issues. The reasons for a backsliding so rapid, so "bipartisan," and so massive have been a constant theme in this book. These reasons were not constitutional but social and sexual. They expressed a reaction in all the "centers of power" to abortion, not as an antidote to unwanted pregnancies, but as a condition and a signifier of women’s social and sexual autonomy. Any analysis of the legal definitions of abortion policy has to be situated in this larger setting.
Roe v. Wade was certainly the most expansive and libertarian of the Court’s decisions concerning privacy. But, as we saw in Chapter 3, that "landmark" decision was the product, not of judicial invention or fiat, but of a groundswell of popular feeling and practice that was given powerful political expression by the feminist movement, liberal professionals and politicians, and the population control establishment. It was the product of a social and political moment, which was transformed all too quickly by the backlash described in Chapter 7. Soon after the Roe decision, policy makers and courts began to chip away at the formal legalization of abor-
tion under the Constitution, reducing it through one restriction after another. This process, even before the rise of a nationally powerful antiabortion movement, reflects the fact that public policy to liberalize abortion was nowhere framed in feminist terms—declaring access to abortion a social right and need of all women. Rather, it was framed in terms either of a concept of "medical necessity" or medical prerogative or of an abstract "right of privacy" that, in practice, has often excluded those too poor or too young to exercise their rights without public support. These terms left legalization open to a welter of exceptions: "conscience clause" statutes that exempted medical professionals with religious objections from the obligation to provide abortions, parental and spousal consent or notification requirements, compulsory waiting periods, and retraction of public funds and abortion-related services. Through the courts and through bureaucratic maneuvers, a "counterrevolution" is occurring that is attempting to re-create the austere conditions of рте-Roe days when a woman’s judgment was considered suspect, and she had to pass medical and bureaucratic hurdles for her abortion to be deemed "necessary."
The following guidelines, fundamentally at odds with abortion as a "woman’s right," have surfaced in post-&K revisionist case law: (1) women should not get abortions unless they are "medically necessary"; (2) even when abortions are "medically necessary," the state has no obligation to pay for them (i. e., they do not qualify as a "welfare right"); (3) abortion is not generally a medical or health issue but a "religious" and "moral" issue; (4) women, particularly if they are unmarried teenagers, may be incompetent to choose between abortion and childbirth. With this increasingly prevalent line of reasoning, the Supreme Court has moved ever closer to the right-wing position on abortion.