The Supreme Court and the Social Conception of Abortion

By Vecera, Vincent | Law & Society Review, June 1, 2014 | Go to article overview

The Supreme Court and the Social Conception of Abortion


Vecera, Vincent, Law & Society Review


Introduction

In 1966, the Los Angeles Times published an editorial typical of how reform advocates talked about abortion policy prior to Roe v. Wade (1973). The editorial was atypical only in its length-12 para- graphs instead of the usual three or four-and touched on every prominent argument that reform advocates were advancing in the 1960s. It discussed the risks of illegal abortions and how prohibition increased those risks. It described the suffering of women in need of medical care, and the cruelty of prohibiting professional physi- cians from providing it. It referenced victims of rape and incest, congenital disorders, pregnant teenagers, and unwanted children. And it discussed the nearly 10,000 American women dying each year from illegal, unsafe abortions. The editorial argued that legal- izing abortion would be humane, that it would not supplant birth control or promote promiscuity, and that it would save lives (Los Angeles Times, August 1, 1966).

What the editorial did not mention was privacy. The word did appear 6 years later, however, in the newspaper's opinion page, on the day after the Supreme Court's decision in Roe, when the edi- torial board wrote,

It is obvious that the best way to handle unwanted pregnancies is to prevent them. Abortions are, for many, immoral, but there is nothing in this decision to force the unwilling to submit to the procedure. More important is the right of privacy, which surely must include protection from unreasonable intrusions by government in private matters.

(Los Angeles Times, January 23, 1973, emphasis added)1

More important is the right of privacy, "surely." So surely that in the 11 editorials the Los Angeles Times published in the decade prior to Roe, not once did the word appear in reference to abortion. In 1973, the editorial board of the Los Angeles Times declared a right to privacy to "surely" be the basis of an abortion for the first time. It would not be the last.

A second transformation in how Americans talked about abor- tion paralleled the rise of a politics of rights. In 1970, the New York Times published an editorial in support of an abortion reform law being debated in the New York state legislature. The three- paragraph editorial read, "reform . . . would place responsibility where is should be in a modern and free society-in the decision of a woman and her physician" (New York Times, April 9, 1970). Another editorial, published later that month, read, "the decision to have an abortion is one properly to be left with the individual woman and her physician" (New York Times, April 29, 1970). Three years later, in their editorial endorsing the U.S. Supreme Court's 7-to-2 decision in Roev.Wade, the Los Angeles Times wrote, "[t]he decision will not satisfy those who had argued that the mother should make the decision. It insists that the decision be made with the personal physician" (Los Angeles Times, January 23, 1973).

In the years immediately following that Supreme Court ruling, the way advocates discussed women's abortion decisions changed in a subtle but profound way. By the end of the decade, editors would write of "a woman's right to freedom of choice," that "a woman's right to personal privacy includes her decision whether to end pregnancy," and that "the state has no business intruding into the individual woman's abortion decision" (Los Angeles Times, July, 1, 1980). In the years following Roe, the abortion decision, previously talked about as medical decision made between a woman and her doctor, was transformed into a purely personal decision, devoid of any obvious medical significance.

By the end of the 1970s, the way reform advocates talked about abortion laws had changed. Before Roe, mainstream liberal opposition to prohibition was diverse and loosely centered around a framework of health and safety. That kind of advocacy had won significant victories in a number of states, but had yet to deliver national change. …

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