“Like a Withered Tree, Stripped of Its Foliage”: What the Roe Court Missed and Why it Matters

While it would certainly be too much to argue that a fuller exposition of the multi-dimensional origins of the nation’s criminal abortion laws by the Roe Court would have somehow prevented the emergence of the “pro-woman” antiabortion position, I nonetheless contend that if the Roe Court had exposed the gendered origins of our criminal abortion laws, the deep paternalism of the woman-protective approach may well have attracted more critical attention than it did prior to 2007 when the Supreme Court’s embrace of the abortion regret trope served to focus greater public and scholarly attention on this development. In short, this historic knowledge serves to sharpen our understanding of the longstanding link between the regulation of abortion and the effort to control women’s reproductive bodies, thus making it clear that antiabortion activism has never simply been about protecting the fetus. This Article proceeds in three parts. In Part I, we take a close look at the physicians’ mid-nineteenth century campaign to criminalize abortion. Specifically, we will focus on 1) the launch of their campaign; 2) the physicians’ framing of their effort as a “bold and manly” appeal; 3) their focus on preserving and protecting women’s purity and divinely ordained maternal role; 4) their claim that abortion was rife with injurious impacts as embodied in the view that it marked the uterus with a “stamp of derangement”; and 5) the antiabortion physicians’ claim that abortion, as practiced by white, middle-class women, threatened the racial character of the nation. In Part II, we turn to the Court’s landmark decision in Roe v. Wade. Zeroing in on its examination of the historical underpinnings of the nation’s criminal abortion laws, we first take a look at what the Roe Court said about this history, followed by a discussion of what the Court missed—namely, its elision of the gendered and racialized tropes that permeated the physicians’ antiabortion campaign. In Part III, we examine the late twentieth-century emergence of the “pro-woman/pro-life” antiabortion argument. After consideration of the traditional fetal-centric “pro-life” position, we turn to the origins of this new frame. This discussion is followed by a comparison of the core themes of the nineteenth-century physicians’ campaign with the contemporary woman- protective antiabortion position. These themes include: 1) that abortion is incompatible with women’s true nature, 2) that meaningful consent is an impossibility, and 3) that abortion is inherently harmful to women. In conclusion, this Article circles back to the Roe Court’s narrow reading of the physicians’ campaign to argue that if the Roe Court had engaged in a more robust reading of this history, the gendered paternalism of the contemporary “pro-woman/pro-life” position would have been rendered far more visible as a discredited approach to pressing women into motherhood

Report on the Minors’ Abortion Rights Project

The goal of this study was to learn more about the experience of minors in states with parental involvement laws who do not involve their parents in their abortion decision, and must therefore seek judicial authorization for an abortion, and to use this knowledge to explore ways to minimize the burden of these laws. At the outset, it should be made clear that having this goal does not indicate that we support imposing third-party involvement requirements on teens seeking to abort. Our research, as well as the work of others (much of which is cited in this report), raises serious questions about the value of compelling teens to give notice to or obtain the consent of a third party before terminating an unwanted pregnancy. However, in light of the Supreme Court‘s unequivocal acceptance of the constitutionality of these laws, and the fact that they are a reality for teens in a majority of states, we wanted to explore ways to make these laws less burdensome for teens

The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era

In 2017, Scott Lloyd, the newly appointed director of the Office of Refugee Resettlement (ORR) declared that henceforth pregnant teens in federal immigration custody could not obtain an abortion without his express consent. This quickly proved to be an impossibility on account of Lloyd’s deeply held and religiously saturated antiabortion beliefs. In justifying his denial of consent to all who sought it, Lloyd insisted that ORR had a statutory obligation to provide refuge to the unborn as well as to protect unaccompanied minors in the care and custody of the agency from the trauma of abortion regret.This article focuses on the origins and implementation of Lloyd’s abortion-consent policy within the broader context of the Trump administration’s “pro-life” and anti-immigrant agendas, and its contestation in the much-publicized Garza v. Hargan class-action lawsuit brought by the ACLU Reproductive Freedom Project. As argued, by mapping these twinned commitments onto the transgressive bodies of undocumented pregnant teens in federal immigration custody, the policy appropriated the seemingly private and intimate in order to both punish these young women by compelling motherhood as a sanction for their infractions and deter those who might otherwise be tempted to breach the Southern border as “abortion tourists.

Minors as Medical Decision Makers: The Pretextual Reasoning of the Court in the Abortion Cases

By examining the Court\u27s failure to consider the allocation of authority between parents and children in the critical realm of medical decision making, this article exposes the irrationality of the Court\u27s acceptance of limitations on the abortion rights of minors and reveals the pronatalist thrust of the parental involvement decisions. The article begins by looking at how the Roe Court characterized abortion as a medical decision, followed by a discussion about the medical decision-making rights of minors. Rooted in this medical paradigm, the article then turns to the parental involvement cases to examine the Court\u27s failure to consider the medical decision-making of minors when evaluating the constitutionality of parental involvement laws as well as its emerging concern for the rights of the unborn

JOURNEY THROUGH THE COURTS: MINORS, ABORTION AND THE QUEST FOR REPRODUCTIVE FAIRNESS

In 1974, the year after the Supreme Court\u27s decision in Roe v. Wade, a pregnant Massachusetts teenager, known only as Mary Moe, sought to terminate her pregnancy without involving her parents. Although she confided in an older sister, she feared telling her father because he had previously threatened to throw her out of the house and kill her boyfriend if she ever became pregnant. Also, perhaps because her parents had not provided her with any sexual instruction, she wanted to spare her parents\u27 feelings. However, unable to obtain an abortion without first seeking the permission of both parents under a recently enacted state statute, Mary Moe, on behalf of a class of unmarried minors in Massachusetts who have adequate capacity to give a valid and informed consent, and who do not wish to involve their parents, challenged the constitutionality of this limitation on a young woman\u27s right to reproductive privacy