This week’s confirmation hearings for President Donald Trump’s Supreme Court Justice nominee Brett Kavanaugh have been met with mourning from supporters of reproductive rights and the dignity of women more generally. Should Kavanaugh be successfully confirmed, the majority of justices could favor the recriminalization of abortion at some point when the Court resumes again.
I’m a historian who studies the history of reproductive rights in the US. To envision what our future holds should Roe v. Wade be successfully overturned is not hard — we only need to look to the decades before the nationwide legalization of abortion to get a sense for how the status of women could radically change.
The first thing to know about life when abortion was still a criminal act is that massive numbers of women resisted the law. In the 1950s and ’60s, just before the Roe v. Wade decision in 1973, medical and law enforcement experts estimated that between 1 and 2 million girls and women every year had secret abortions. Women resisted because they decided they were too poor, too young, too alone, or too vulnerable to have a baby. They also resisted because they simply didn’t want the pregnancy.
We think of the criminal era as a time when getting an abortion meant a furtive trip into the back alley, where, as likely as not, an unskilled person — maybe a drugstore owner or beautician or medical quack — would sexually assault, maim, or even negligently kill a desperate woman. But public health records do not bear this out.
Of course, some women suffered greatly — but most women lived in cities and towns where they had a decent chance of finding competent doctors, midwives, chiropractors, and others who did abortions outside of the law. Many performed this procedure day in and day out, often with the full knowledge of police who understood the public health benefits of having a decent provider in town.
But debunking the “back-alley” myth doesn’t mean the criminal era was not profoundly harmful to women. The social and economic impacts of making abortion illegal cannot be overstated. In those decades before Roe v. Wade, roughly from the mid-19th century until the early 1970s, women could not be full citizens. If they had heterosexual sex, they could not reliably plan their education or their work lives. Many women did not know where to find help, were too ashamed or afraid to ask, had no money, or were scared off by stories of the back alley. Many attempted self-abortion.
Employers and school officials drew on these vulnerabilities to treat females as unreliable employees who deserved lower pay. Given the likelihood that women would have children and drop out of the workplace, men argued that women had limited use for education. Girls were steered away from career tracks and advanced study and pushed toward preparation for “women’s” work, including low-skill office jobs and domestic labor.
Employers expected women workers, who might (it was thought) become pregnant at any time, to be only suited for jobs with fewer responsibilities that could allow them to cycle in and out without unduly disrupting the workplace. Unexpected and unwanted pregnancies robbed women of personal opportunities, economic security, and civic independence.
When district attorneys and police departments periodically decided to mount crusades of moral purity against “vice,” thousands of women were hauled into courtrooms and forced to testify against practitioners who had helped them and were now being tried for performing abortions.
Newspapers covered these public spectacles, where women in court would be pressed to answer such questions as “How many men did you have sex with?” and “Why did you have sex if you weren’t willing to have a baby?” and “During the abortion, how far apart were your legs spread and what tools were put into which of the holes in your body?”
Many hospitals set up “abortion boards,” where women went to beg panels of male physicians to allow them to terminate a pregnancy, which was only possible if granted an exception due to extraordinary circumstances. Many of these women had to plead insanity or say their pregnancy was causing them to consider suicide — two of the few permissible justifications for obtaining permission. Public humiliations like these were common in the pre-Roe era.
Without the right to choose, women were subordinate citizens
In the decades before Roe, authorities took upon themselves the right to punish girls and women for not managing their sexuality and fertility in ways the government approved — and the punishments and social control varied by race. Authorities forced hundreds of thousands of unmarried, unwillingly pregnant white woman to give up their babies for adoption; meanwhile, poor women of color were evicted from public housing, lost their welfare benefits, and, in some states, were threatened with jail if they had another baby outside of wedlock.
Women were forced to reproduce under a regime that dictated moral, racial, and religious rules for them, thus denying them moral autonomy, a political voice, and true religious liberty.
Most fundamentally, the government mandated forced maternity and defined women first and foremost as mothers. When women could not manage their reproductive capacity —even contraception was not legal in all states until 1965 — women’s special subordination to government and specifically to men on whom women were dependent for economic support, for employment, and other resources shaped every aspect of women’s intimate familial and socio-political lives.
Eventually, a critical mass of women rebelled against this regime as too dangerous and demeaning to be tolerated. The movement for reproductive freedom was a movement for full citizenship status for women.
Today’s technological advancements will provide alternatives to the back alley and other degradations of the pre-Roe era, although women with economic resources will continue to have more options and access than others. As before, though, women will be forced to flout the law to achieve personal dignity and safety. Such treatment of women ought to be an intolerable idea in a modern democracy.
Rickie Solinger is a historian and the author of many books about reproductive politics, including Wake Up Little Susie: Single Pregnancy and Race before Roe v. Wade; The Abortionist: A Woman Against the Law; and Reproductive Justice: An Introduction, with Loretta Ross.