Originally published on May 1, 1979. Stating that “women will be the new target of an attempt to reconstruct society on the basis of what is called morality,” Rhonda Copelon of the Center for Constitutional Rights in New York reviewed the political and legal history of abortion rights in this country.
Copelon, chief legal counsel of a national class action suit challenging the constitutionality of present restrictions on federal funding for Medicaid abortions (the Hyde Amendment), addressed a group of about 50 assembled at the Hastings College of Law in San Francisco last week.
Over a century ago, Copelon stated, abortions were widely performed by women healers.
This practice ceased by the 1880’s, however, as a wave of criminal anti-abortion statutes were enacted by state legislatures under a mantle of concern for women’s health.
In fact, the statutes reflected less the need to protect women from unsafe abortions than the upper class’ concern with its own falling birth rate (compared to that of the Catholic immigrants) and a reaction against women finally moving out of the home and into the workplace, Copelon suggested.
The result of these laws was that safe legal abortions became unavailable to women until the activism of the 1960’s and the feminist movement pressed demands for abortion rights to the fore a decade ago.
The thalidamide tragedy of the early 1960’s — in which over a hundred severely deformed children were born to mothers who had taken the sedative drug during pregnancy — exploded the myth that the placenta is a natural barrier to disease in the fetus. A
s a result, the American Medical Association finally began to support the liberalization of abortion laws in cases of fetal deformity or when pregnancy endangered a mother’s life.
Landmark case
The landmark case came in 1973 — Roe v. Wade. In this case, the Supreme Court held that until the fetus is viable, a woman’s liberty to decide whether to bear a child (part of her right to privacy) is more protected (in a legal sense) than the fetus’ potential life.
Roe thus removed the barriers to abortion and was hailed as a great victory for the women’s movement, comparable in legal significance to the Brown v. Board of Education case of 1954 outlawing segregated schooling.
Yet scarcely four years later, the tide of the battle for abortion rights began to turn, according to Copelon. In the 1977 case Maher v. Roe, the Supreme Court ruled that the
State need not subsidize therapeutic abortion, reasoning that a woman’s right to abortion as protected by her constitutional right to privacy only took precedence in cases where the state directly restrained her from having an abortion.
In other words, indirect restraints on abortion — such as not providing funds for poor women to undergo abortion — were held to be constitutional.
Echoing the social concerns of the last century, the Court in the Maher case noted that a state’s restrictions on abortion funding were justified in light of that state legislature’s concern to encourage population growth, Copelon told the Hastings audience.
The upshot of the 1977 case is that today hospitals need not use federal funds to pay for abortions, a ruling which “legitimized the power of the State to manipulate childbirth by withholding public resources,” Copelon noted.
“Right to life” movement
Taking a broad view of the legal process, the New York lawyer observed that the Maher decision, as well as the Hyde Amendment, resulted from the changing political picture in the U.S. with regard to women’s rights.
The “Right to Life” movement, backed by the powerful Roman Catholic hierarchy and numerous “Pro-Life” committees, has enjoyed substantial successes in the last couple of years.
By focusing on the abortion issue alone, these committees have been able to swing a crucial five percent of the vote in many state legislative elections, and to defeat such Senate liberals as Dick Clark of Iowa.
Even though national opinion polls consistently show a preference for the “right to choose” over the “right to life,” the “Pro-Life” movement continues to win victories, and to push for a Constitutional Amendment banning abortion almost entirely.
This Amendment, approved now by 14 of the necessary 34 states, would forbid abortion in all cases unless the life of the women is severely threatened — and no exceptions would be granted in cases of rape, incest, or fetal deformity.
Abortion would be punished as a high homicide, and it is conceivable that women could get the death penalty if they had an abortion performed by someone, Copelon said.
Different legal tack
A new case, McRae v. Califano Takes a different legal tack in challenging the federal cutoff of abortion funding. Unlike previous cases seeking to establish the primacy of a woman’s right to privacy regarding an abortion decision, in McRae Copelon and other pro-abortion lawyers will argue that federal restrictions on Medicaid abortions violate’ the constitutional separation of church and state.
Copelon stated that the prolifers’ preoccupation with the “sacred, sanctified life of the fetus” is really a religious belief, just as a woman’s decision to have an abortion is a matter of conscience, a deeply ethical decision.
Since both pro and anti-abortion beliefs are “religious” in this sense, the Court should uphold the Constitutional separation of church and state.
This argument will hold that neither belief should be “favored” by the State, for that would blur the distinction between church and state — and funding for abortions should be allowed, Copelon hopes.
The abortion struggle is part of a “broader struggle for liberty,” Copelon concluded, “and our response must not simply be in the area of abortion.”
She called for day care and better support structures for working mothers, and endorsed workers’ struggles for safe places to work since exposure to toxic substances threatens reproductive capacity.
Not until the 1960’s were the majority of abortions safe and legal.
