Texas Has Turned Citizen Against Citizen

Over Abortion. How Did We Get Here?

Oct. 29, 2021

Keystone/Hulton Archive/Getty Images

By Joshua Prager

Joshua Prager is the author of “The Family Roe: An American Story.”

Before the Supreme Court ruled in Roe v. Wade that abortion was legal in all 50 states, the case
did nothing for the women of Texas, where it began. A federal panel in Dallas ruled that Texas’
anti-abortion laws were unconstitutional. But the panel was concerned about interfering in state
affairs. And so although it granted doctors and women the legal right to perform and have
abortions, they could still be prosecuted.

“Apparently, we’re free to try them,” Dallas County’s District Attorney Henry Wade told the
press, “so we’ll still do that.” Fearing the consequences, a hospital refused to abort the pregnancy
of a 15-year-old girl who said she had been raped by her father.
A half-century later, another court has refused to block the enforcement of another
unconstitutional law that is, in effect, forcing Texas women to carry unwanted pregnancies. And
on Monday, that court, the highest in the land, will hear oral arguments about that law — Texas’
Senate Bill 8, which deputizes private citizens to enforce a ban on abortions after around six
weeks of pregnancy, before many women even know they’re pregnant.

The extremity of that law recalls what the majority opinion in Roe termed the “seemingly
absolute convictions” that abortion inspires. But when Justice Harry A. Blackmun wrote those
words in 1973, that absolutism was largely contained. Though there were, of course, Americans
— Catholics predominant among them — who opposed the legalization of abortion absolutely,
the public reception of Roe was largely positive. For example, while a Wall Street Journal
editorial wondered “whether the court stepped too far into the legislative arena,” it declared Roe
“a reasonable balance on an exceedingly difficult question.”

Most of the country moved on. From the time Roe was decided in January 1973 until year’s end,
abortion clinics opened in 34 states, and at least 745,000 women reportedly had abortions in
compliance with Roe — the procedure tax-deductible and covered by most insurance companies.
When the Senate next convened to vet a potential Supreme Court justice, no one so much as
asked the judge, John Paul Stevens, his opinion of Roe.

Had they asked him, he likely would have answered honestly — something that’s impossible to
do in such hearings today. People were generally much more open about Roe back then. They
were openly conflicted about it, too, even its protagonists. Months after she filed Roe, the
feminist lawyer Linda Coffee, who was a religious Baptist, confided her hope that abortion
would become “sort of obsolete.” She added that while she did not believe the law ought to
restrict abortion until the point of fetal viability, the standard established in the Roe decision, she
“would have little personal sympathy for a woman who used abortion at any stage as
contraception or to avoid personal responsibility.”

The defendant Ms. Coffee named in Roe, Mr. Wade, the Dallas County district attorney, was
secretly a liberal Democrat who, as his son Kim recalled to me, did not oppose legalizing
abortion. And the plaintiff, Jane Roe, a Dallas waitress named Norma McCorvey, later
campaigned against Roe after a religious rebirth. Even then, she privately felt that abortion ought
to be legal through the first trimester — a position that she articulated to me from her hospital
bed at the end of her life and that she first expressed to a Baptist news service days after Roe.
“It’s hard to determine when human life begins,” she said in January 1973, in her very first
media interview. “I wouldn’t want to wait over three months for any abortion, because I might be
ending a human life after that time.”

Activists on both sides of Roe had also agreed that choice and life had their limits. Dr. Mildred
Jefferson, a surgeon and a future president of the National Right to Life Committee, publicly
stated  months after Roe was filed that she thought of herself as being less “against abortion” than
“for the sanctity of life.” What upset her most was not abortion, she said, but that her fellow
doctors were performing them. And at the time of Roe, Dr. Curtis Boyd of Texas, a committed
Christian who is today among the largest providers of third-trimester abortions in the country,
would perform no abortion past 16 weeks.
The Roman Catholic Church also once drew a line there; it was at roughly 16 weeks that
movement of the fetus was discernible, and in 1211, Pope Innocent III wrote that abortion could
be ruled a homicide only if it terminated a pregnancy after this period of “quickening.”

This canon law stipulated for all but three of the next 658 years, until 1869, when Pope Pius IX
wrote in a papal bull that any woman who had an abortion would be censured. A priest and
canon lawyer named Thomas Carr then determined (at the behest of the Irish church), that the
pope had thus negated the distinction between abortions early and late. A 1917 papal codification
of canon law agreed, and it was settled: The church would henceforth prohibit abortion from the
moment of conception.

The Bible, meanwhile, said nothing of abortion. And just as the pro-life were left to intuit its
prohibition from Scripture, so were the pro-choice left to intuit its legality from the U.S.
Constitution. Ms. Coffee initially suggested that the right to abortion might be grounded in any
of six amendments. The Supreme Court settled on the 14th, ruling that its due process clause
guaranteed a right to privacy, which in turn secured a right to abortion. That analysis has been
assailed ever since, not least by feminists, including the future Justice Ruth Bader Ginsburg, who
believed that the right to abortion ought to be grounded not in privacy but in equality.

Some critics of Roe thus dismiss it as jurisprudentially flawed. But some of their arguments
against it are no more sure-footed, such as the contention that women who have abortions suffer
from a form of post-traumatic stress called post-abortion syndrome. Though the medical
community has debunked this syndrome — C. Everett Koop, the pro-life surgeon general under
President Ronald Reagan, determined that the psychological toll of abortion on women was,
from a public health perspective, “minuscule” — it is nonetheless expressly invoked in the
Mississippi abortion law that the Supreme Court will rule on this term in deciding the fate of
Roe.

That law draws the line between legal and illegal abortion at 15 weeks; the Texas law draws it at
six. Roe, of course, draws it at viability, the point at roughly 24 weeks when a fetus can survive
outside the womb. That Roe constitutionalized viability owed in part to happenstance; only
months before the 1973 ruling, a district judge in Connecticut became the first judge in the
country to attach constitutional significance to viability, and several justices on the Supreme
Court, including Lewis Powell and Potter Stewart, mentioned it to Justice Blackmun, who then
inserted viability into his third and final draft of the Roe decision.

Critics of Roe thus say that the viability threshold is arbitrary. But arbitrariness has marked the
battle lines in Roe for decades. And it should not be politically disadvantageous to acknowledge
that no matter how far along the 40 or so weeks from conception to birth, there is a philosophical
argument that can be made to end a pregnancy or mandate its continuation. Abortion is fraught
for good reason: The humanity of the fetus and the reasons a pregnant woman might want to
abort it are both viable considerations. Not that long ago, Ms. McCorvey grappled with that
clash. So did Mr. Wade and Ms. Coffee and Dr. Jefferson and Dr. Boyd and the Catholic Church.

It is a dangerous thing when an issue that demands nuance comes instead to engender absolutes.
It is a mark of polarization. And it has led our country exactly here — to a moment when a state
has turned citizens against citizens in the hope of catching them exercising a right that has been
constitutionally established for nearly 50 years.