(Editor’s note: Historiann’s site says that it covers “History and sexual politics, 1492 to the present.” So I thought I’d ask her to post something about Roe v. Wade, whose thirty-fifth anniversary falls today. Thanks to Historiann for agreeing to do this. We need all the help we can get.)
![]() |
Many thanks to Ari and Eric for finding my blog, historiann.com, and for inviting me to comment today at The Edge of the American West. Historiann lives on the other edge of the American west, in sight of the Rocky Mountains and the Great Plains.
Legions of the holy will be marching today in Washington, D. C. to mourn the 35th anniversary of Roe v. Wade, the Supreme Court decision that legalized abortions in the first trimester of pregnancy, and restricted the rights of states to regulate later-term abortions. One of the claims of the forced pregnancy gang that Historiann has never understood is the claim that “there’s no such thing as a right to privacy in the Constitution.” This dubious suggestion always seems to rest on an overly literal reading of “Constitution” (curiously, some people don’t include amendments and case law, but of course the Constitution is the sum total of the Constitution of 1789, its 27 amendments, and Supreme Court case law over the past 228 years), and on an overly literal reading of “privacy,” which (like “God” and “unitary executive”) is a word not found in the text of the Constitution or its amendments.
You don’t have to take my word for it. From the 1965 ruling in Griswold v. Connecticut until last April in Gonzales v. Carhart, the Supreme Court affirmed and elaborated on its theory of the right to privacy in the Fourteenth, Fourth, and Ninth Amendments in signal cases like Roe, and again in Casey v. Planned Parenthood (1992), and again in Stenberg v. Carhart (2000). Tips for toads: the Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects,” without probable cause and a warrant. (Even a lay reader could infer that a uterus might be included in “persons” whose bodies are protected by said amendment.) And let’s not forget the Ninth–which specifically states “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Fourteenth Amendment, of course, has that little “equal protection of the laws” thingy.
![]() |
But in Gonzales in 2007, “Our Gang” on the Roberts court summarily overturned forty-two years of consensus on privacy and sexuality. Justice Anthony Kennedy writing for the court majority decided that the certainty of women’s personhood and constitutional rights were nothing compared to the possibility that a woman who had a late-term abortion might regret it in the future. Because apparently, late-term abortions are recreational fun for the ladies until Sex and the City: The Movie comes out. Does it sound to you like Kennedy doesn’t have any familiarity with women outside of bad nineteenth-century novels? His ruling reads like the scene in The Forty Year Old Virgin when Steve Carell’s character says a women’s breast feels like a bag of sand. At least the other men in the movie recognized that Carell’s character had said something very weird. In Kennedy’s opinion, four other male justices just nodded and “Our Gang” signed right on to an opinion as full of prejudice, bad history, and wishful thinking as Dred Scott v. Sandford.
I have every confidence that Kennedy’s Gonzales opinion will, within a generation, be a laughingstock. But that won’t help the many girls and women whose health and lives will be threatened in the next several years by his capricious folly. As Darla Justice Ruth Bader Ginsburg wrote in her dissenting opinion, “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution – ideas that have long since been discredited.” Ahh, Darla–you just might have to start your own club.
(Editor’s Note: Cross-posted at historiann.com.)
32 comments
January 22, 2008 at 6:00 pm
Jamie T.
Nice post Historiann. I do a lot of work with Progressive Era abortion law and it amazes me that people think it would be a good idea to go back to that piecemeal, state-by-state approach. Abortions done by competent physicians in the early 1900s were very safe, but these procedures were only done by writ of the vague and sometimes self-serving therapeutic clause. Those women who were not well-connected enough to obtain a therapeutic abortion often had to turn to “irregular” physicians or unqualified midwives and these abortions often turned tragic.
January 22, 2008 at 6:10 pm
ari
Thanks, Jamie, for the comment. And thanks for stopping by the blog. I’m sure Historiann will come by later to mingle with her readers. We’ll try to have snacks and drinks waiting.
January 22, 2008 at 6:50 pm
Historiann
Jamie T.–thanks for checking in. The class issues you raise are critical, as it’s not just sex that distances people like Anthony Kennedy from many people who need abortions. I think the reason many politicians think that releasing the question to the states is the correct way to, as it were, split the baby (sorry!) is that politicians are confident that they’re well-connected enough to ensure that if their 44 year-old sisters are carrying trisomy babies, they’ll be able to get their abortions. If their college-aged daughters have ectopic pregnancies, they’ll be able to get their abortions. If their wives are pregnant at age 40 and they don’t really want another child, they’ll get their abortions. But they support laws that make it harder, if not impossible, for younger, poorer girls and women to make the same decisions for themselves.
January 22, 2008 at 8:52 pm
Luke
First-time commenter here–I’ve really enjoyed the blog.
Historiann: I think many folks, both pro-life activists and others, would strongly disagree with your characterization of Supreme Court case law as part of the Constitution. It is true that case law interpreting the Constitution may often have the same practical effect as ratification of an Amendment. But, among other things, amendments are more permanent than case law, and I wonder if amendments don’t provide greater legitimacy as well. For example, you use Griswold, Roe, Casey, and Stenberg to help establish the existence of a constitutional right to privacy. Like it or not, that right is now qualified by new case law in the form of Gonzalez v. Carhart–what the Supreme Court gives, the Supreme Court can take away. And I get the feeling you don’t think Gonzalez v. Carhart is all that legitimate, which is how I imagine pro-lifers feel about Roe.
January 22, 2008 at 10:35 pm
Historiann
Luke,
You’re right of course that case law is only part of the constitution until another case comes along that overturns the received wisdom of the ages–the way the Gonzales case appears to be poised to revoke large parts of Griswold, Roe, Casey, and Stenberg. And we all know how the forced pregnancy crowd feels about Roe–they would have a point perhaps if Roe were a stand-alone case not generously flanked by Griswold, Casey, and Stenberg. And, please recall that Roe was an uncontroversial 7-2 decision in 1973, whereas Gonzales was a controversial 5-4 decision issued by a divided court recently stacked with avowed ideologues. To be fair, Casey and I believe Stenberg were 5-4 decisions–but they were issued by the extremely conservative Rehnquist court, not a liberal court, so the split vote may be read as less divisive in those cases. (Cases in which Kennedy, as in Gonzales, was in the majority!)
January 23, 2008 at 8:09 am
charlieford
So THAT’S it! I’ve often wondered what all this fuss over abortion is! I mean, golly people, it’s just a developing human being in there! Why are so many people acting like there’s some kind of moral issue involved? Sheesh. You’d think someone was extinguishing an endangered species or something. In addition, it’s not like it’s even all that common. Maybe 1.5 abortions, or lately, 1.3, abortions a year since 1973? So what’s that come to–maybe 40 or 50 million? THIS is an ethical conundrum? Cry me a river. These are the same silly folk who make a fuss over things like, you know, Hiroshima. I mean, come on: there’s always more Japanese where they came from! Thanks for making it clear, Historiann, that it’s really just men keeping women barefoot and pregnant. I thought those kinds of explanations had died out with flared pants-suits, but apparently they’re still alive and well. Good for you! We need more analysis that doesn’t get side-tracked by messy questions–you know, like what about the security of the baby in question?–and cuts through it all to see the essential misogyny behind it all. Great stuff!
January 23, 2008 at 9:06 am
eric
Charlie, I must say I wish you’d framed your disagreement a bit more constructively, as (say) Luke did two comments above you. We don’t expect everyone to agree with everything here. For one, it would be boring, and for another, as Michael Bérubé once put it, the number of people who agree with me on all important political issues could fit in a phone booth. But I can readily imagine a way to say what you said in a way that would help further the conversation rather than otherwise.
January 23, 2008 at 9:33 am
charlieford
Thanks Eric, that’s helpful. I’m truly ashamed of myself. I guess I’m just not a very careful hermeneut.
Here we have this serious, balanced, sensitive post, that’s doing nothing more than pointing out what any rational person should be able to see–that worries about abortion are nothing more than “he-man woman-hating” and, that anyone who might wonder about the way an 18th century text is getting swung around to batter opponents in a debate over modern medicine can fairly be characterized as a “toad”–and here I come, ruining the whole thing by getting all snarky.
Well, shut my mouth. Henceforth, I’ll try to stay out of the way when I see a constructive conversation occuring.
January 23, 2008 at 9:40 am
eric
Charlie, nobody’s asked you to shut your mouth.
You’re right, Historiann uses sarcasm here. I would point out that she focuses that sarcasm on two arguments: that there is no right to privacy in the constitution, and Justice Kennedy’s claim — which by all accounts is entirely baseless and speculative — about the subjective experience of women who have had abortions. These points deserve sarcasm, because they are in the first instance either ignorant or made in bad faith, and in the second instance apparently uninformed and incurious.
Those are the points she seems to me to be lampooning by her phrase “He-Man Woman-Haters Club.”
January 23, 2008 at 9:50 am
Melbel
Charlie,
So, you feel incapable of elevating the conversation?
January 23, 2008 at 10:21 am
Historiann
I am obnoxious to each carping tongue
Who says my hand a needle better fits.
At historiann.com I should not blog
For such despite they cast on female wits.
(with apologies to Anne Bradstreet)
January 23, 2008 at 11:45 am
charlieford
Well, let’s attempt some elevation then.
So we’ve begun with a declaration that we’re going to discuss the “legions of the holy” that will be protesting a certain form of killing. These folk and their misguided moral sensibilities are, clearly, not worth a serious hearing. They are, after all, the “forced pregnancy gang”–other wise known as “he-man woman-haters.”
So far, nowhere to go but up, eh?
We’re told they–the “legions of the holy”–deny the right to privacy. True? All of them? Anyone polled them lately?
By implication, the moral reservations this crowd has about the aforementioned killing stands or falls with this right to privacy. Again, true? Might there be some virtue to the argument that a woman’s right to wield a scalpel–or to employ someone else to do so–ends at the fetus’s toes?
As for Kennedy–well, he deserves more scientific analysis than I have skill or time for. He’s certainly representative of something. How central his bizarre conjecture might be to a serious discussion of abortion, I’ll let you decide. Obviously, someone thinks it’s important–or should I say, wants us to believe it is.
January 23, 2008 at 11:56 am
Historiann » Empty Vessels
[…] is something of a follow-up to my post on the 35th anniversary of Roe v. Wade, which was cross-posted at The Edge of the American West. One of the commentors was clearly irritated that I didn’t write about the precious little […]
January 23, 2008 at 12:14 pm
Historiann
Charlie,
I acknowledge that many people in this country believe that abortion is wrong, and I respect that belief. Sure, I think their moral concerns deserve a hearing–just not necessarily on my blog, which is where this post originated. If people who have these moral concerns have uteruses, then they are free to not procure abortions. And, both men and women who hold these moral convictions are free to try to persuade other people not to have abortions. There are many other people who also believe that abortion is morally wrong, but they are pro-choice because they would never presume to allow the government to make decisions about other people’s intimate and family lives.
I have not individually polled all anti-abortion protesters. However, I think it’s a reasonable assumption that the people who marched in Washington yesterday against Roe are in favor of criminalizing abortion and turning over our reproductive and medical rights to the state. That is what overturning Roe would accomplish. And that is a downright un-American agenda.
I have put up a follow-up post over at my blog, historiann.com. (Warning: sarcasm alert!)
January 23, 2008 at 1:21 pm
ari
[Editor’s note: I commented here earlier but have since decided that my comment was unlikely to do any good and well might have stifled further discussion. So I’ve now deleted what I wrote. Sorry about that.]
January 23, 2008 at 1:22 pm
eric
Charlie, Kennedy’s “bizarre conjecture,” representative or not, is undeniably central to the current law on abortion. And I think the law on abortion is part of a serious discussion of abortion.
Nobody said that people who oppose abortion all deny the Constitution’s guarantee of a right to privacy. But that there are some who do is incontrovertible, and they were the (I believe) legitimate object of Historiann’s ridicule.
I see also that Historiann has acknowledged the legitimacy of a moral objection to abortion, and the rights of people who hold that moral objection to abstain from abortion and to seek to persuade others not to have abortions — or else to suffer whatever guilt they suffer from doing and permitting something that is morally wrong.
You appear to believe — you ask whether it’s so, but you don’t say — that this acknowledgment is insufficient; that people who believe abortion is morally wrong should, whether through legislation or achieving a consensus among Court appointees, forcibly proscribe it for others — that “a woman’s right to wield a scalpel — or to employ someone else to do so — ends at the fetus’s toes” — and that the known evils of proscribing abortion outweigh the known evils of permitting it.
If that’s what you want to say, I think you could just say it.
January 23, 2008 at 1:23 pm
eric
Ari and I posted at virtually the same time. See, there’s no coordination, or management, or oversight here.
January 23, 2008 at 3:13 pm
charlieford
Eric, you write
“I see also that Historiann has acknowledged the legitimacy of a moral objection to abortion, and the rights of people who hold that moral objection to abstain from abortion and to seek to persuade others not to have abortions — or else to suffer whatever guilt they suffer from doing and permitting something that is morally wrong. You appear to believe . . . that this acknowledgment is insufficient.”
I don’t think, in fact, that this acknowledgment was made prior to my last post, so I’m not sure anything can be inferred about whether I consider it sufficient or not.
But let’s think about that. The proposition is that, since we’re in a difficult or contested realm here–some folk thinking this procedure violates “someone’s” rights and others denying that that is so–let’s leave the question to popular sovereignty (with the individual, rather than the state, being the relevant sovereign).
It’s been awhile since I’ve been in any kind of logic class, but it does seem to me we’re smuggling an answer into our solution while denying that we’re doing so.
I know we’re all capable of doing some appropriate thought-experiments: merely substitute some other moral issues that you consider important violations of civil rights, but which have been likewise contested. Propose a solution of “Well, let’s leave that up to the individual?” We could use examples such as slavery, or education, or child labor, or blood transfusions, or unionization, or numerous others.
Historiann writes: “There are many other people who also believe that abortion is morally wrong, but they are pro-choice because they would never presume to allow the government to make decisions about other people’s intimate and family lives. I have not individually polled all anti-abortion protesters. However, I think it’s a reasonable assumption that the people who marched in Washington yesterday against Roe are in favor of criminalizing abortion and turning over our reproductive and medical rights to the state. That is what overturning Roe would accomplish. And that is a downright un-American agenda.”
Maybe you’re right on the un-American thing. My Ron Paul loving friends argue the same point about the Civil Rights Act. If you are right, then I’ll just have to say, “So much the worse for Americanism.” But I’m not convinced I’m forced to go there. I like what the Declaration says: it is the legitimate domain of governments to secure rights. That’s why we institute them. So again, we come back to this: if we’re going to argue that the decision should be left up to the individual, we’ve already decided one of two things: 1) The developing child has no right to life; or 2) It does, but we don’t care.
January 23, 2008 at 3:20 pm
eric
we’ve already decided one of two things: 1) The developing child has no right to life; or 2) It does, but we don’t care.
Maybe you would accept an amendment along these lines: what we’ve (i.e., the law) decided is, the mother has a right to reproductive freedom, and the developing child has a right to life: but up to point X in pregnancy, the former right supersedes the latter, and past point X the latter right supersedes the former.
January 23, 2008 at 3:37 pm
charlieford
Maybe we have. If so, then we’ve decided that, yes, the rights of the developing baby after point X DO warrant legal protection. That would seem to entail–unless I’m mistaken–an acknowledgement that it is proper to “criminalize abortion and turn over our reproductive and medical rights to the state.” (quote altered)
That doesn’t strike me as the kind of thing that’s going to compel assent from your guest blogger. She writes “The forced pregnancy gang likes to pretend that fetuses don’t in fact exist inside uteruses, which are in fact intimate parts of someone else’s body. And when you think about it, it’s downright un-American to write laws that tell other people what to do with their own bodies.”
January 23, 2008 at 3:47 pm
eric
Well, I can’t speak for Historiann. But it is of course part of Roe that after point X the rights of the fetus do warrant protection: Roe set up the trimester scheme, in which point X was clearly defined. Since then the Court in Casey substituted a vaguer X of viability as the point past which the state can restrict the right to an abortion and established the standard of “undue burden” as the thing states can’t impose.
So it seems to me that in the law at least we’re not talking about who’s got an absolute right, but rather, that the law must balance existing rights.
January 23, 2008 at 3:54 pm
Alan
I agree with eric. A person-to-be at conception is a single cell and should have no rights (though many Christians disagree).
A person-to-be at the end of nine months is clearly a real person and should have all the rights of other people (barring life-or-death health problems with the mother).
Drawing the line between these two positions is not easy. I suggest we use the same criteria that we use for death – the presence or absence of normal brain waves (although “normal” in a developing fetus/baby may be difficult to determine).
January 23, 2008 at 4:16 pm
Historiann
Charlie, I think it’s pretty funny that your goal is to “compel assent” from me. And a little creepy! In the country I love, you see, people have different opinions (even girls!), and they sometimes make different decisions than we would like them to make. Sometimes they make decisions that we disapprove of strongly, or that conflict with our morals. But, living in a free society entails accepting that other people (including the girls) will make their own decisions, and that they in turn must live with the consequences.
I understand that you are highly motivated to plead the case of fetal life. That’s cool, although I think it’s wrong to compare fetal life to enslaved people and child laborers. I just think that the lives of girls and women who are alive, and who have children, lovers, parents, and siblings counting on them to come home safely every night, counting on them to bring home a paycheck and to help take care of everyone in their households–those lives are more important than fetal lives. And those girls and women are the best judges of what is best for their health and their families when they’re pregnant, and when they’re not.
I know it’s terribly inconvenient that fetuses don’t come in bottles or vases, but we have to reckon with pregnancy as it is, and every pregnancy right now still requires a living, breathing, woman with not just a uterus, but a mind of her own too.
January 23, 2008 at 4:45 pm
urbino
Nobody asked me, but, fwiw, and I although I disagree with him on the substance, I thought charlieford’s comment was pretty tonally consistent with the post. The post used snarky humor, and the comment responded to the snarky bits. It’s snarkiness all the way down.
Just thought, in fairness, that should be said. Having said it, I return to the balcony to sit this one out.
January 23, 2008 at 7:16 pm
charlieford
Well, three things are happening for me. One, I can only with some difficulty figure out who’s saying what. My brain-waves are getting frustrated by that. Second, so many points are piling up that need response, or correction because they’ve been misread, that I’m not sure it’s useful to press on. Third, it’s looking likely that some of us might have other things going on than mere dialectics, so my personal preference would be to edge out.
Let me respond to eric and Historiann:
Eric, I understand what you’re saying about the law as currently understood. I think Historiann has a more consistent position, and I was trying to address that.
Historiann, I haven’t been trying to “compel consent” from you; my point was made to eric, who was suggesting (I don’t want to put words in his mouth, but so it seemed) the reasonableness of current law, and (maybe? don’t know) recommending it as a middle ground? My response was to say to him that I didn’t think it would satisfy your criteria of justice (which prioritizes the autonomy of the individual).
My argument with you, Historiann, was not really about abortion per se. I think we–as a nation–need to have some GOOD arguments about the topic, but I wasn’t presuming to start one with you, here. Hence my oblique, sarcastic, juvenile initial response, the sub-text of which was–I hoped would be apparent–that there are ways of approaching the question that get us to those good arguments, and those which don’t.
Then, eric challenged me to be SERIOUS AND CONSTRUCTIVE AND CONVERSATION ADVANCING. This struck me as ironic, given my earlier posture and intent, but I capitulated. Which brings us to urbino generously adding that there was snark all over, and granting the legitimacy of my style (such as it is) if not my substance.
Like I said, having GOOD arguments about abortion, I think, would be desirable. I despair of them becoming common or influential. Before I categorize discussants as “pro-life” or “pro-choice” I find myself, these days, dividing arguments into “intelligent” and “unintelligent,” and, Lord knows there’s plenty of unintelligence on all sides. This strikes me as closer to what we all need these days:
“I just think that the lives of girls and women who are alive, and who have children, lovers, parents, and siblings counting on them to come home safely every night, counting on them to bring home a paycheck and to help take care of everyone in their households–those lives are more important than fetal lives. And those girls and women are the best judges of what is best for their health and their families when they’re pregnant, and when they’re not.”
January 23, 2008 at 7:47 pm
Historiann
Charlie–you’re a good egg, and a worthy adversary.
January 23, 2008 at 7:57 pm
Historiann
p.s. No snark–I’ve updated my latest post at historiann.com. Thanks, Charlie.
January 23, 2008 at 7:59 pm
ari
Wow, did a discussion about abortion (sort of) just conclude (maybe) with respect all around? Kudos to Charlie and Historiann. And to Eric. I have to say, this was all rather hopeful. Really, thanks to you all. I feel genuinely good right now. Though the night is young.
January 23, 2008 at 8:25 pm
charlieford
Yes, returned thanks to you all, and thanks to the big dawgs who run the site for, you know, running it. If it wasn’t for EAW and similar spaces, I’d have fewer excuses to avoid working.
January 23, 2008 at 9:16 pm
Luke
Regarding Charlie’s comments about good and bad abortion debate, I think the Constitution itself is largely to blame for the abundance of bad debate about abortion. Assuming the Constitution addresses the issue of abortion at all, it does so at a fairly high level of abstraction, which makes the topic ripe for honest disagreement.* With little clear guidance in the text of the Constitution about “what the law is,” the issue of abortion rights too often slips into a constitutional rorschach test guided by personal preferences about “what the law should be.” What should be a matter of hermeneutics becomes a policy debate–though they’re both important, they’re different issues that are too often conflated in this context.
*Related to what I wrote earlier about case law and legitimacy, the lack of clear textual guidance one way or the other in the Constitution is probably why pro-lifers view Roe as so illegitimate despite the 7-2 vote–it’s easy to characterize the connection to the text is strained. Similarly, I assume pro-choicers would view Gonzalez v. Carhart as similarly strained and illegitimate even if it weren’t a 5-4 vote. I doubt it’s the vote counts that matter, but rather a clear connection to the foundational documents.
January 23, 2008 at 9:52 pm
ari
That’s a really interesting point, Luke. Though the Constitution is silent on so many issues of consequence in current policy debates, isn’t it?
January 23, 2008 at 9:57 pm
Historiann
Good points, Luke–although I think the 9th is clear in suggesting that future generations might arrive at a consensus about new rights deserving of Constitutional protection. If you want to be a “strict constructionist” on abortion, it wasn’t addressed in law anywhere in 1789, and so therefore (so far as I understand “strict construction” theory) it shouldn’t be interfered with or regulated now. The criminalization of abortion began only in the mid-19th century. Up to the 1840s, in colonial America and the early National U.S., pregancies that ended before the “quickening,” or discernable fetal movement, weren’t investigated or considered suspicious. And the first laws against pre-quickening abortion, passed in the 1840s, weren’t passed to protect fetal life, but rather to protect women from potentially harmful medical procedures. The fetus as a cause celebre of the anti-abortion movement wasn’t “discovered” until the 1860s-1880s, when a coalition of Protestant and Catholic clergymen and the American Medical Association banded together to outlaw abortion in the U.S.