Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion
Cheu, Maggie, Texas Journal of Women and the Law
INTRODUCTION .................... 114
I. Methodology .................... 115
II. Early American Coverture .................... 115
III. A Brief History of American Abortion .................... 117
IV. Decisions of the Supreme Court of the United States .................... 120
A. Roe v. Wade .................... 120
B. Webster v. Reproductive Health Services .................... 123
C. Planned Parenthood of Southeastern Pennsylvania v. Casey .................... 125
D. Gonzales v. Carhart .................... 127
CONCLUSION .................... 129
In 2000, the Orlando Sentinel ran a cartoon by Dana Summers. ' The image was cut in half, separating the right and left sides. On the left sat a drawing of a woman tossing an infant into a dumpster, overflowing refuse and errant rats making the picture particularly dire. On the right, was an image of a woman entering an abortion clinic. The bottom line describing both vignettes read, simply, "Dumpsters." The cartoon draws a clear parallel between the two situations, vilifying both the practice of abortion and the aborting woman. It's a visceral depiction of the cartoonist's views, reflective of a very specific kind of concern for abortion and for the people, families, and institutions affected by it.
This cartoon exemplifies how the anti-abortion movement leans on ideas of women as selfish, thoughtless, and unable to make reasoned choices regarding abortion. Through an examination of the primary legal opinions concerning abortion, this Article suggests that anti-abortion arguments ultimately revive a perspective of women that was crucial to the early American laws of coverture - those laws that restricted women's individual rights due to their presumed incapacity for high reason.2 Often, proponents of anti-abortion reform frame their suggested boundaries and restrictions as protective of both the mother and the fetus, as a potential human being.3 This line of anti-abortion logic invokes the ideology used to justify coverture - an ideology referred to herein as the coverture ethos. Although coverture began disintegrating as a legal code in the nineteenth century,4 a coverture ethos remains in American culture today, coloring the way that the anti-abortion campaign forms its most crucial arguments.
This Article suggests that the laws of coverture not only affected the legal aspects of marriage in early America, but also inform the way modern Americans view and talk about issues of sex and gender - namely abortion. The ideology that supported coverture - of womanhood as a lesser state that lacks the ability to reason and make competent decisions5 - emerges clearly in the anti-abortion messages we see in the contemporary United States. Further, this Article urges that such arguments based on the coverture ethos described above must be harshly examined, if not entirely revised.
This Article proceeds in three parts. Part I describes both English and early American coverture and outlines the primary tenets of and justifications for the common law practice. Part II offers a history of abortion in America, briefly sketching abortion's path from a commonplace activity to a vilified practice among American society. Part HI discusses four of the most significant abortion decisions made by the U.S. Supreme Court. It begins with the landmark case of Roe v. Wade, which opened the door to available abortion practice in 1973. Part III also includes reviews of Webster v. Reproductive Health Services (1989), Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and Gonzales v. Carhart (2007), each of which broadens and specifies states' rights in controlling the abortion experience, slowly chipping away at the rights granted to women in Roe.
II. Early American Coverture
Under English common law, the marriage of a man and a woman united them as a single legal entity by incorporating and consolidating the two people, such that the husband became the relevant public figure. …