Some perspective on Roe v. Wade

And some things to not put anywhere near your “mimsy.”

I woke up on Friday as a feverish mess because I got Covid on my family vacation. I was hoping for a relaxing day to catch up on work but instead woke up to a bunch of email subject lines saying Roe v. Wade had been overturned. (I also took three naps, but that’s neither here nor there).

Had this happened 3 years ago, I would have been mortified, but my first thought this morning was, “Great. The Internet is going to be insufferable today.” The good people of Twitter have not disappointed, but I’ve come a long way in my understanding and emotional reactions to the abortion debate.

First off—and this is important—while writing this piece I was looking up old Lysol ads to use for the artwork and I found this glorious ode to vintage advertising.

This opened up a whole rabbit hole of unbelievably sexist ads from times of yore—some of which ended up being a hoax but were funny nonetheless. (You’ll have to click the link for the mimsy joke which is definitely not meant for mixed audiences.)

Lysol was marketed as an abortifacient for a long time. Its marketing was always sly—it was regularly marketed as a way to preserve “marital freshness” or as part of a regular feminine hygiene routine. The storylines in these ads made it seem like these women’s husbands were leaving them over some awful yeast infection, and they were taking it way harder than expected. In reality, it was a hint that you should use Lysol to avoid an unwanted pregnancy. Obviously, this had terrible results. It may have terminated the pregnancy, but it could also kill the mother or leave her horribly injured and infertile.

DO NOT use Lysol anywhere on your body just because a 90-year-old ad told you to.

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I hate this debate. I hate how it goes around in circles every single time it cycles to the top of public discourse. I hate the intellectually dishonest arguments I hear on both sides of the debate. I especially hate that no one can recognize that there are good arguments on the side opposite them.

Answer this honestly: If you were asked to summarize and defend the arguments of the people who you disagree with, would you be able to do so without making them look like a clown?

Keep your answer in mind. Let me give you some perspective on this debate and links to resources of people who are much smarter than I am, so I’m leaving most of my usual citations for a reading list at the end.

A brief history of American abortion

Since the mid- to late-19th century, the debate surrounding abortion in the United States has been contentious. And yes, you read that correctly since the 19th century. Prior to that abortion was legal before the “quickening,” or the moment the mother could feel the baby move. This is usually around 15-20 weeks.

In the early 1800s, there were early regulations of the drugs and abortifacients used to terminate pregnancies because they proved fatal or disabling. Technically, these were poison control laws. If you survived an abortion in this time period, you’d likely be sterile. In the 1850s the newly-established AMA began to call for the criminalization of abortion, and by the late 19th century all US states had outlawed the practice.

I hesitate to speculate about the motives of these laws—I can’t find any primary sources, and the only sources I can find were written in the last decade. I don’t know how politicized they are or how much the writers projected their own beliefs onto the source. That being said, modern historians have argued that the reasons varied from concerns that too many immigrants were having babies and native-born white women were choosing to end their pregnancies¹ and the AMA wanting to drive business away from homeopaths and midwives.

In the 1960s, the women’s rights movement and the introduction of contraceptives laid the groundwork for Roe v. Wade. The Supreme Court struck down a law banning the distribution of contraceptives to married couples in 1965, and in 1972 the Court struck down a law that prohibited the distribution of contraceptives to unmarried adults. Both decisions cited an American’s essential right to privacy. In 1973, the Court decided on Roe v. Wade.

Roe v. Wade was doomed to fail

This is a hard pill for many people to swallow, but Roe was never a great decision to begin with. It was always low-hanging fruit for pro-life advocates to swipe at. For those of you who don’t know the context of the case, it all started when Norma McCorvey (identified in court documents as “Jane Roe”), who had given birth to two children already and placed them for adoption, became pregnant with her third and sought an abortion. She sought an elective abortion at a Texas clinic. In 1969 when Texas only permitted abortions if the life of the mother was at stake, so she was denied. In 1970, McCorvey and her attorneys filed a suit against Henry Wade, the district attorney of Dallas County.

The landmark decision was decided 7-2 with Justice Harry Blackmun writing the majority opinion citing that McCorvey’s 14th Amendment right to privacy was violated when the government sought to intervene with her abortion. In essence, Roe v. Wade wasn’t about abortion at all—it was about privacy.

This puts the decision in tenuous territory. Even liberal legal scholars like Akhil Reed Amar, who is notably pro-choice, have their reservations about Roe. Can abortion really be a private decision if the woman or couple seeking the abortion are bringing in a third party—often a doctor they don’t know and might even consult with other providers about their patient’s health—into the decision? Yes, HIPPA does protect the patient’s privacy, but a provider has to be intimately involved in an abortion rather than, for example, your own private use of the pill.

This stands in contrast with decisions like Obergefell v. Hodges where a gay couple’s right to marry is protected under the equal protection and due process clause of the 14th Amendment. Additionally, what two consenting adults choose to do in the privacy of their own bedroom is none of the government’s concern (which is also where the decision regarding contraception fell). If they choose to commit to a lifelong relationship, there is no reason they should be denied the full legal benefits the United States offers married couples.

But I digress—the real problem with Roe was that if abortion was going to be an issue we were going to deal with as a country, when and why did we decide that it was going to be a constitutional issue, not a statutory one?

Bear with me here…

The abortion debate: Is abortion a right?

Point out to me where in the constitution it either explicitly allows for abortion or an argument can be made that abortion is a constitutional right. Go ahead. I’ll wait.

Usconstitution

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(And don’t try any of that “bUt wOmEn wErEn’t iNvOlVeD In tHe wRiTiNg oF ThE CoNsTiTuTiOn!” or “bUt tHe cOnStItUtIoN Is oLd” nonsense with me. Those are bad arguments and you know it. Either you think this is a constitutional right or you don’t—you don’t get to have it both ways.)

The argument that abortion is a “right” always rubs me the wrong way—especially since the people who use it as their rallying cry can’t see the myriad of holes in the argument. Is it really “my body, my choice” when someone else’s body—someone who can’t yet advocate for themselves—is in the mix now? Do you have a “right” to make a medical decision to terminate their life and consent on their behalf? Of course, there are endless arguments about when life begins, but no one can come to a consensus on this and no one ever will. It’s hard to draw a line from the rights outlined in the constitution to the “right” to an abortion. And as discussed earlier, Roe wasn’t based on the “right” to an abortion, but to privacy.

In order to win these arguments, we’ve invented all sorts of word games. But here’s the kicker: We only think we’ve won the argument. In reality, we’ve just made the other side so inflamed that they marched off to their own corner to talk about you the same way you’re talking about them. By the way, they also think they’re winning, and they also think they hold the majority opinion.

In short, we have a petty, myopic view on this debate.

Abortion at home and abroad

But before you close out this tab and march back off to your corner to demonize the side you oppose, you should know there is good news: Most Americans favor some sort of compromise in this debate.

The people who get the most media airtime are the whackadoodles like Oklahoma Senator Warren Hamilton who think that aborting an ectopic pregnancy is murder or the House Democrats who want to pass the Women's Health Protection Act. (This act protects abortion access up until fetal viability or the health of the mother is at stake… but doesn’t specify whether it’s mental and/or physical health. This leaves a potential loophole for women who are 30-something weeks and having an emotional breakdown about their impending due date of an otherwise healthy pregnancy.)

These people do not represent the majority view on the subject.

As of 2019, the Pew Research center determined that 61% of Americans believe abortion should be legal in “all or most” cases and 70% of Americans disagreed with overturning Roe v. Wade (cited in the reading list). But again, Roe’s decision is based on the right to privacy—not abortion, something most people don’t understand about the decision—always put it on shaky ground. Some states, like Hawaii and New York, actually did pass legalized abortion laws three years before Roe v. Wade was decided. Since then, access to abortion has hinged on Roe, instead of passing common-sense laws. There’s an argument to be made that our legislative bodies have failed us by not passing laws that don’t depend on Roe.

Some people like to idealize other, more progressive countries in how they deal with abortion, but the United States is simultaneously more polarized and more permissive in regard to abortion than many other countries. In states like California, you are able to terminate your pregnancy up until the date of viability (which is getting lower thanks to science). In some states, people want to abolish the practice altogether citing life begins the moment an egg is fertilized²—it doesn’t matter if you were raped or have an ectopic pregnancy.

In Europe, however, they handle this issue differently. It’s a contentious issue over there too, but for the most part, they have dealt with it by passing laws ensuring that people can get an abortion either on-demand or if they meet specific requirements. Interestingly—and I hope you’re sitting down for this—the laws of most European nations are more restrictive than the laws in the US (cited in the reading list).

Most of these countries restrict abortion at the latter end of when you can get a medical abortion versus a surgical one.

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Some things to consider

The worst part since the Supreme Court draft leaked is how insufferable the people of the internet have been with their reactions. I’ve been particularly disheartened to see the number of lawyers I know spouting off complete and utter nonsense that they should KNOW would not hold up in court. (And frankly, things they should have learned in their first year of law school.) I’m really worried about the future of the below-average attorneys of America.

A bit of advice: Don’t take legal advice from a lawyer on Twitter.

Let me help you re-center the conversation, give you some historical context, and hopefully cleanse your palate from whatever garbled junk you’ve picked up online. Here are a few things to think about:

First, this does not ban abortion. By my current count, no state has outright banned abortion in its entirety. What this does is kick the decision of whether or not to allow abortion, and which restrictions to have, back to the states. Should it be federal legislation or state legislation? I don’t know, but it’s a good debate to have. Check your actual state laws—not Instagram, and definitely not Politico, which has been publishing misleading information—before freaking out.

Wealthy women have always been, and will always be, able to access abortion. This is true regardless of whether or not abortion has been legal. If you had an errant daughter, and unwanted pregnancy was too shameful for your family to bear, you could always arrange for a private doctor to be paid under the table to safely “take care of it.” (See in the reading list: “Farewell to the East End” by Jennifer Worth.)

Passing laws doesn’t keep abortions from happening. Abortion has always been an imperfect answer to poverty and desperation. So long as there are women in a desperate situation and mouths to feed there will be abortions and a marketplace of people willing to offer them—often through ineffective or dangerous methods.

We need to stop judging abortions and ask, “Why are people getting abortions?” I view this in the same way I view gun crime: It’s a symptom of a larger problem. If we stop making policies at abortion or guns, we’ve missed the whole point and are doing more harm than good.

Whose job is it to legislate morality? Everyone comes from different faiths, cultural traditions, and ideologies. At what point are we asking the courts and legislative bodies to do the work of keeping our faith for us?

When you’re debating this, are you debating with the “other side’s” best arguments? Most people aren’t, and they don’t seem like much of a genius or master debater when they’re arguing with the worst arguments.

Overturning Roe v. Wade will have a plethora of unintended consequences. And it’s not going to be pretty. Abortion tourism. One-upping other states on abortion tourism. People attempting home abortions (this is how people overdose on ibuprofen.) The list goes on.

Governments need to have a light touch when it comes to abortion laws. There are tons of examples where someone either had a miscarriage that wasn’t passing or was carrying a fetus that wouldn’t survive birth, but due to a restrictive abortion bill, they were not able to terminate the pregnancy. Occasionally, these laws are so punitive they criminalize mothers who give birth to stillborn babies. There are times when these decisions are best left up to a competent medical professional.

The vast majority of women seeking abortions cite worrying about a baby interfering with their life, work, or education; not being able to afford it; or relationship complications. Abortions due to sexual assault, incest, fetal abnormality, or threat to the mother’s life are incredibly rare.³

When it comes to abortions in the case of sexual assault and incest, it’s a messy issue. It’s unclear how many rapes happen per year or how many of them get reported, but RAIIN estimates around 31% of assaults don’t get reported. Fewer are cleared by the criminal justice system. Most of the evidence in these cases is based on witness testimony, and the burden of proof is usually on the party making the accusation. Rape trials can take a long time to prosecute. That’s an uphill battle for an assault victim to scale before the fetus becomes viable. Many of the states posing restrictions on abortion unless in the cases of rape or incest require that the crime be reported. This can be a messy situation for someone who is afraid of their assailant, doesn’t know the assailant, or is dependent on them because they are a relative.

The Supreme Court has no duty to heed public opinion. There has been an ocean’s worth of op-eds saying that the Supreme Court should not overturn Roe v. Wade because the people oppose it, and then, in the same breath, have the audacity to say SCOTUS lacks credibility. This is not how the Supreme Court works. They are supposed to make decisions based on law, not public opinion.

This is probably NOT going to have an impact on gay marriage, contraceptives, or other rights. You can go back and read my explanation above, but I don’t think they are at much of a risk. They have pretty solid arguments (i.e. privacy, due process, and equality through the 14th amendment). Roe—in many ways—is quite different than Obergefell.

Any attempt to abolish abortion altogether would probably result in a quick challenge to the Supreme Court. You can’t survive an ectopic pregnancy, and a law prohibiting the termination of a pregnancy threatening the mother’s life infringes on her rights to, you know…be alive. I also doubt many doctors would obey a law like that or many prosecutors would charge someone with murder in a case like that.

Now that we’ve set the record straight, it’s time to put some of you on blast…

Pro-lifers: Have some compassion for people who seek abortions

This is not an easy decision for anyone to make. There might be a handful of nuts out there who use abortion as their preferred method of birth control, but this is not the norm. If you read the Guttmacher study in the reading list, you’ll note that the majority of women who sought an abortion did so because they were not in a place where they could financially handle a child. Many already had children. About half of them were in an unstable relationship. Other reasons included that their husband or partner wanted them to have the abortion; they were embarrassed someone would find out they were pregnant; or didn’t feel they were mature enough to be a parent.

When we live in a world where we expect women to be extraordinary and shatter the glass ceiling and then go home to cook a gourmet meal and be supermom to her three perfect children (while expecting very little of men and ruthlessly criticizing them when they respond by doing nothing), it shouldn’t come as a surprise that women would seek some sort of reprieve from that constant pressure. Especially when their life doesn’t look anything like that.

The onus of childbearing is squarely on women. A good partner can be a relief, but it’s a cross she has to bear on her own. Moreover, there are no guarantees that you’ll be able to get paid time off to care for your baby in the United States, and childcare is increasingly expensive. Long gone are the days in which families can subsist off of one income. Additionally, poverty is rising. So if you have ever said something invalidating like, “just keep your legs closed,” you should know it’s a little more complicated than that.

Historically, women would try to induce miscarriages through hot baths, injecting Lysol into their uteruses, or go to a back-alley abortionist who would, at best, charge an arm and a leg for an abortion. At worst, you would be required to pay with sex and leave with a life-threatening infection from rusty tools.

The decision is complicated, and abortions happen whether or not they are legal (and whether or not you like them). There need to be some legal exceptions so they are safe and rare. The best way to reduce them is to start by asking why people are even seeking them in the first place.

Also, Roe being overturned is nothing to celebrate. This can open up a can of worms for some dark things like abortion tourism; an exploitative abortion market; and the potential for incredibly permissive laws on how late you can get an abortion in states that allow it. Unfortunately, this is where the high-stakes opposition and political escalation of Roe have led.

Pro-choicers: Cut the theatrics—you’re not helping the cause

“If you’re not outraged, you’re not listening.” This common refrain from pro-choice activists really gets my goat. Has anyone ever stopped to consider maybe I am listening, but I’m choosing to keep a cool head, so I don’t get caught up in reactionary politics? I hate it when people tell me how to feel.

There are many points I could make here, but if nothing else sticks, please let it be this: If all of your arguments are hyperbolic, they will lose all their power. You will not make friends OR influence people.

Jesse Singal @jessesingal

Ever since the outrage over Roe v. Wade broke out, I have seen a constant barrage of social media garbage from pro-choicers treating this as a zombie apocalypse. If any of you ever hoped that your arguments would ever bring a pro-lifer—or even a fence-sitter—over to your side, allow me to show you HOW CERTIFIABLY INSANE YOU LOOK TO THEM. You do not look reasonable or educated—you look like you escaped from a possessed insane asylum for sad clowns.

These are based on real posts I’ve seen over the last two months:

• “#SCOTUS DOESN’T WANT YOU TO BE HAPPY!!!” Somehow, I don’t think they based this decision on your happiness…

• “We can never have sex again!” No one is stopping you from having sex if you want to. But also, abstinence is cheap… and comes with a lot of emotional and social benefits. And if you are part of this dialogue, you probably know how contraception works. Contraception has not been outlawed.

• “If you don’t like abortions, don’t get one!” I hope you already see the flaws in this argument, but since I have seen people with doctorate degrees say this, I’ll go ahead and point it out: Would you say, “If you don’t like animal abuse, then don’t abuse animals!”? Probably not.

• Any variation of “pregnant people,” “birthing bodies,” “people with vulvas,” etc. Listening to NPR discuss this issue without even once using the word “woman” was off-putting, painful, and awkward.⁴ Although NPR uses this language, it’s generally confusing and only used by people who are either very (maybe overly) online, or very (maybe overly) educated. For people entering the conversation, this kind of language is more likely to push them away than to draw them in.

• Speaking of NPR… and other big news outlets have been posting inflammatory content that only exists to get people angry. It also shows they don’t know how to read a graph… or much about how babies are made.

• “I’m proud of my 12 abortions!” You might want to keep this one to yourself. To a left-of-center moderate like myself, it looks like you’re proud of not knowing how a condom works. To an ardent pro-lifer, you look like a serial killer.

• “Give all baby boys vasectomies at birth!” I can’t stress this enough, vasectomies should not be treated as reversible, and it’s wholly unethical to sterilize an infant who can’t consent. Vasectomies also come with huge risks like an increased risk of aggressive prostate cancer. Likewise, tubal ligation is neither painless nor reversible—there’s a reason why most doctors won’t even consider you for a tubal ligation unless you’re done having children and your partner has consented. It’s also significantly more invasive than a vasectomy.

TL;DR: The pro-life crowd had their turn being overly dramatic. It was indeed annoying, and it didn’t win any hearts, minds, or Oscar nominations. The pro-choice theatrics aren’t working either. None of this is coming across as sane, well-adjusted, or well-reasoned.

If you want to cover any ground and make any changes, you have to have a better comeback than “F*#& you, bigot!”

The way the cookie crumbles

There’s not much more I can say about this subject. There’s never going to be a perfect solution to this debate. I would argue to have a law more like Denmark or Switzerland’s across the board, but obviously, there would be people to the right and the left of me who wouldn’t feel like it is enough.

At the end of the day, abortions and the reasons people choose to get them are complicated. You can’t flatten it down to one thing. It’s in vogue, to put the onus on one person, for example, to say that men’s reproductive rights should be limited. But ultimately no amount of sniping, blaming, or shifting of responsibility will turn down the heat on this conversation or get us any closer to a democratic solution that we can all live with.

We can, however, learn to turn down the heat on the conversation and gain some perspective. Bari Weiss put it best in her essay on Saturday:

There are those who claim that the time for nonviolence has passed. That desperate times call for desperate measures. That we are in a war and in a war the normal rules of politics must be suspended. These are the same people who turn a blind eye to—or justify—those threatening the lives of Supreme Court justices with whom they disagree. The same people who, in another time, justified violence against abortion providers.

We could not disagree more strongly with this view.

We know that it’s chic these days to write off virtues like civility and decency and humility and grace. We believe those things are the only way forward. That the only alternative to violence is persuasion and argument.

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Updates

6/26/22 @ 1:59 PM MST — An earlier version of this essay included a lot of typos and confusing sentences. Those have (hopefully) all been resolved. Additionally, I included the quote from Common Sense at the end. I felt it was very apropos given the current mood. Resources in the reading list will be updated and added indefinitely.

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Reading & watch list

As promised some resources to help you understand the subject of abortion better, portrayals in television and film, and analyses of the laws. I’ll add more as things become available. Feel free to suggest other resources in the comments!

Understand the legal and constitutional debate behind Roe v. Wade

Roe v. Wade Supreme Court Decision

The History Channel’s brief summary of Roe v. Wade

The text of the 14th Amendment

The History Channel’s simplified summary of the 14th Amendment

Dobbs v. Jackson Women’s Health Organization (Do yourself a favor and read the decision—not the hot takes on Twitter and Instagram.)

Legal scholar Akhil Reed Amar’s op-ed on Roe v. Wade

Why legal scholar Akhil Reed Amar is anti-Roe but pro-choice, Podcast: Honestly with Bari Weiss

Data on Abortion

Pew Research: What the data says about abortion in the U.S.

Pew Research: U.S. Public Continues to Favor Legal Abortion, Oppose Overturning Roe v. Wade

The AbortReport.EU—statistics on abortion rates and laws in the European Union.

Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives (2005 study)

History of Abortion

Abortion in American History by Katha Pollitt

A history of American thought on abortion: It’s not what you think (A thoughtful interview about how abortion became illegal, legal, and then somewhere in the middle.)

Lysol’s Vintage Ads Subtly Pushed Women to Use Its Disinfectant as Birth Control

Essays and Ideas you probably didn’t consider about the abortion debate

The Dishonesty of the Abortion Debate by Caitlin Flanagan

The ‘Roe’ Baby by Joshua Prager (Norma McCorvey never aborted her baby. She later became a born-again Christian and became ardently pro-life. This story profiles her as well as the child she gave up for adoption.)

Losing the ‘Rare’ in ‘Safe, Legal, and Rare’ by Caitlin Flanagan

Why You're Wrong—and Right—About Abortion, Podcast: Honestly with Bari Weiss

For Abortion Abolition, Against Abortion ‘Abolitionists’ by David French (A pro-life stance against the criminalization of mothers)

Roe v. Wade: Politics, Data and Law, by Dr. Vinay Prasad, MD, MPH on the complicated relationship between policy, healthcare, and the medical effect this is going to have on many women and children.

The Post-Roe Era Begins

Depictions of abortion in film, television, and memoirs

I included this because art gives us a sense of what the actual attitudes towards a tricky subject was at the time these pieces were written. This is what The Charrette is all about.

Parks & Recreation’s episode on teaching sex ed to senior citizens because you probably need a break from all the doom and gloom.

A timeline of abortion stories in popular media since 1916

One of the obvious omissions from that list was CBS’s history-making legal drama, The Defenders. In its first season, they made waves with an episode where the criminal defense attorney good guys defended a doctor accused of performing abortions. They almost didn’t run the episode because they couldn’t find anyone willing to sponsor it, and it later became a Mad Men plot point. The opening scene is pretty heartbreaking—you can watch the whole episode here.

Abortion is a pivotal plot point in Cabaret.

I highly recommend both the movie and book, Just Mercy. Bryan Stevenson is an inspiration in general, but his book details the story of a woman, Marsha Colbey, who had been displaced due to Hurricane Katrina. During that time she became pregnant and was unable to get prenatal care. She delivered a stillborn baby alone and had to bury him in her backyard because she could not afford funerary costs. She was charged with capital murder due to some unusual entanglements with Alabama’s abortion laws.

If you loved the show, Call the Midwife, the books are a thousand times better. The episode where she deals with a mother of eight children who tries to give herself an abortion is based on an account Jennifer Worth heard from another nurse. It did not end anywhere near as happily as it did in the show, and the Harding family does not come across as sympathetic. She also includes other anecdotes about the history of abortion; the tiered access wealthy women had; and the ugly details of how many abortions went wrong. Read Farewell to the East End for more of this.

1. Personally, aside from some fringe cases like Margaret Sanger, I don’t find this very believable. Having an abortion in this time period, although legal, would have been very risky and therefore uncommon. It smacks of the “women had ribs removed to fit into corsets” myth. Guys—they didn’t have general anesthesia or antibiotics back then. No, they did not.

2. An egg can be fertilized, but unless it can implant into its mother, it’ll never grow into a baby. This is true for both babies conceived naturally and those conceived through IVF.

3. This is based on a 2005 Guttmacher Institute study. They are an ardently pro-choice organization.

4. I understand wanting to be inclusive to transgender men and non-binary people, but they make up such a small portion of the population who is expecting a baby that it doesn’t make sense to address ±50% of the population in a way they don’t identify. Non-binary people are estimated to account for 0.36%, and transgender people for 0.52%, of the US population. (These numbers don’t consider biological sex or disqualifying medical procedures, like hysterectomies.) Further, to immigrants or people who don’t speak English as a first language, this can feel confusing and invalidating.