Amy: Welcome to Breaking Down Patriarchy! I’m Amy McPhie Allebest. Today we will be talking about the 1973 Supreme Court case Roe vs. Wade. This is such a complicated and delicate topic, and there is so much to discuss, we decided to break up the conversation into two parts. So today will be Part 1 and next time we will resume with Part 2. In preparation, my reading partner read a bit about the case, and then we read the actual case, which we found online on Google Scholar. Neither of us had ever read the original text before, and we both found it to be so much more readable and accessible than we expected - we felt like we could feel the judges wrestling with every angle of the issue, taking it very seriously and so wanting to do the right thing. It was really worth reading, and I’m very excited to discuss it. But before we dig into this essential text and talk about its implications for women, I’d like to introduce my reading partner, Lindsay McPhie Hickok. Hi, Lindsay!
Lindsay: Hi, Amy!
Lindsay is my sister, actually the third sister to be a guest on the podcast, so I feel like I should introduce the McPhies! There are five kids in our family - I’m the oldest, then Lindsay, who is here today, then comes our only brother, Scott, and his wife Rachel whom we consider to be a sister too, then comes Courtney, who did the episodes on the Seneca Falls Convention speeches and Margaret Sanger’s “The Morality of Birth Control,” and then Whitney is the youngest, and Whitney did the episode right before this one, on Title IX. We are all extremely close and the best of friends, and I adore and admire them all for different reasons. Scott frequently makes me laugh so hard that I cry, Rachel seems to have all the craziest things happen to her and she is the absolute best storyteller, also often making us laugh so hard we cry, Courtney is a trailblazer in our family by being the first of the siblings to get a master’s degree, and I admire Whitney for her incredible resilience. And Lindsay, one thing I love about you is the passion with which you care for women and babies in your job as a labor and delivery nurse. I wish every laboring woman had a coach and defender and nurturer as fiercely loving and empowering as you are.
So Linz, could you tell us about who you are, where you're from, and what kinds of life experiences and points of view you bring to today’s conversation?
Sure! As Amy said, I am the second child in our family. We grew up in Colorado, and I live in Utah now, with my husband and three children. I like to hike and bike and garden and basically do anything outdoors.
I graduated from BYU with a nursing degree, and besides a short stint in same day surgery, I have spent my whole career in labor and delivery. Many of my most intense life experiences come from either the delivery room, or from my faith. I was raised in a very devout Christian home. My parents raised me in the Church of Jesus Christ of Latter-day Saints, and that faith has played a huge part in who I am and in how I view the world. I was taught from the time I was born that God cared about the choices that I made, and that all life was sacred and beautiful. Not only was I raised to believe that life was holy, but I get to see the magic of life every time I go to work. I am a labor and delivery nurse, and for thirteen years I have walked with women as they have labored and birthed their little babies. I love seeing the strength of women. I have seen incredible heroines in the delivery room, and it takes my breath away every single time.
In addition to my Mormon roots, I also have Scottish roots and that feels very much a part of who I am. One of my core values is freedom of choice - think William Wallace yelling “freedom!” or, if that is too distant a past, imagine Mormon pioneers walking barefoot across icy plains, suffering sickness and grief, all to have a place where they could worship God in the way they chose. So, to this project, I bring the core value of protecting and honoring the magic of life and the core value of protecting and honoring free will.
The other thing I like to ask my reading partners is what interested them in the project.
Have you heard the commencement speech given by David Foster Wallace, entitled This is Water? It begins with “There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”” This resonates so well with me. I have been swimming in patriarchy from the day I was born, but for a long time I didn’t have a name for it. For years I accepted the patriarchy of the scriptures and of my church. I accepted that men were the heads of the households, and other such patriarchal ideas. When I would ask questions about patriarchal concepts, I was always met with responses like “men are always in charge because someone has to be in charge. It might as well be men.” or “Leading is a burden. Aren’t you so glad you don’t have to make the stressful decisions?” The older I have gotten, the more frustrated I have become with these kinds of answers. The decisions that men make affect women. If half the world population is female, then half of all leadership teams should be female. Our leadership should reflect our population. Patriarchy, in any setting, is problematic and I am interested in breaking it down. For this episode, I take particular interest in Roe v Wade because it brings my core beliefs of the sanctity of life and the importance of free choice directly into the spotlight, and because I am deeply devoted to women’s healthcare and how childbirth affects their lives.
Amy: That’s such a powerful introduction to this discussion, Lindsay. And I am truly so grateful that you are going to be the one to talk about this with me because you are so thoughtful, so precise and careful in your thinking, so loving, and so wise and experienced and passionate in your care for women and babies.
You have engaged with women’s reproductive lives on a regular basis for years and years, but for me this topic is very new.
The first time I dedicated time to studying and thinking about Abortion and Abortion rights was in a class called International Women’s Health and Human Rights at Stanford in 2019. We had to do a semester-long research project where we were asked to choose any topic we wanted having to do with women’s health, and we had to post about a different aspect of that topic every week on a blog for our classmates to read and comment on. Conversations on Abortion had always made me uncomfortable because there was so much contention and my religion and my experiences as a mom had made my feelings really tender about the topic. So I decided to confront my discomfort, and for the first time, attempt to understand why so many people I respected supported women’s rights to an abortion.
Some takeaways from that project:
Lindsay: I appreciate you calling these sides into question. I know I struggle because I am pro-life but I also am pro-choice. Interestingly, I did some additional research and the woman who was “Jane Roe” in the famous Roe v Wade, struggled to identify fully with one side of this black-and-white divie as well. “Jane Roe”’s real name was Norma McCorvey, and though she obviously wanted an abortion, she didn’t envision becoming the poster child of the cause. When she sought help to obtain an abortion, she said “my attorney saw these cuts on my wrists, my swollen eyes from crying, the miserable person sitting across from her and she knew she had a patsy.” She was used by the pro-choice side, and the court case took so long that she just waited and waited and never obtainined the abortion she had wanted. But then, later in life, she was baptized as a born-again Christian and fought fiercely against abortion rights. But then, on her deathbed, she switched again, confessing that she had been paid off by the pro-life advocates and did believe in women having a choice. In the end, she was used by both sides and felt like she didn’t fully identify with either.
Amy: That is so interesting and so sad. I feel like in your case and in my case, we have done research and acquired life experiences that give us nuanced thinking about this issue. And sadly in Norma McCorvey’s case she didn’t seem to really understand the issues and that made her vulnerable to being used. So sad.
Ok, so my next point is:
And I came to this: for me, abortion is a big deal. It should be taken seriously on a societal level. It should be taken seriously on a personal level. It is a hard, hard choice to make, with so many different circumstances factoring in for each woman. So who is qualified to make that difficult choice? Who can be trusted to make that difficult choice?
I love how Pete Buttigieg said “I think the dialogue has gotten so caught up on when you draw the line that we’ve gotten away from the fundamental question of who gets to draw the line.”
Yes, exactly. Pete Buttigieg is honoring the fact that the location of the choice is within a woman’s body. Whether you personally view the fetus as its own body or part of the woman’s body, the fact remains that it is inside the woman’s body and the woman is the one whose life is impacted by that pregnancy. I read a quote in my research that said, “society’s relationship with the fetus must be mediated by the woman carrying the fetus.”
So who has the right to make that difficult choice? A group of all men who has never met the woman? Or the woman herself, hopefully with the help of a doctor?
Those are some of the issues that my class helped me consider, and we’ll encounter some of those points in the text.
So let’s get down to Roe vs. Wade itself! Lindsay, can you read the quick summary of the case that we found on Encyclopedia Britannica?
“Roe v. Wade, legal case in which the U.S. Supreme Court on January 22, 1973, ruled (7–2) that unduly restrictive state regulation of abortion is unconstitutional. In a majority opinion written by Justice Harry A. Blackmun, the Court held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).”
So that’s one key fact that it’s important to know - in determining whether abortion rights were protected by the constitution, the Supreme Court justices determined that the “privacy” clause of the fourteenth amendment covered women’s rights to make this very intimate decision with her own doctor, and that it would violate her privacy for the government to interfere.
So now we’ll start reading the text. I’ll start with the opening paragraph.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries.
I really appreciate the balance of this introduction, on one hand acknowledging the emotional and spiritual aspects of the topic, and on the other hand stating that their job is to uphold the US constitution. It can’t be swayed by emotion or religion (separation of church and state).
The next part introduces Jane Roe, whom you talked about already Linz, but I’ll just read a bit of the text in order to set it up:
Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county (Henry Wade, in Dallas County, Texas). She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant [Henry Wade[ from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women" similarly situated.
I really appreciate how the case states it is “on behalf of all other women”. Something I learned in reading the case was that there was another plaintiff who filed a case alongside Jane Roe! That plaintiff was actually a married and childless couple known as John and Mary Doe. QUOTE: Mrs. Doe was suffering from a "neural-chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. ENDQUOTE
So we have Jane Roe, pregnant with her third child, a doctor who has been convicted of performing abortions and now this childless couple who has been medically advised to avoid or abort any pregnancies, joining in the attack on abortion statutes.
The Does’ case was dismissed because their abortion argument was considered hypothetical. But, when we consider issues concerning pregnancy and childbirth, all women need to buy into the discussion. These questions and issues can affect anyone with a uterus, and as such, I wish they hadn’t dismissed the Does.
That’s a great point, and like you I thought that was really interesting.
Ok, the next portion of the document is a very long description of how people have viewed abortion throughout history. Justice Blackmun says:
“We feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
So now we’ll take turns highlighting some of the points.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. (Just as a reminder, “common law” refers to the body of English law that was adopted by the United States). Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
So basically, they’re establishing that the current attitudes toward abortion are a relatively recent development. So then they go waaaay back to try to learn from the way other people at other times have approached the issue.
1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.
We read about this in our episode on The Creation of Patriarchy - Middle Assyrian Law described that women were essentially owned by men and viewed as baby factories, so destroying a potential baby was seen as destruction of the man’s property.
“We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." ...If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.”
And then of course from ancient Greece comes the Hippocratic Oath.
Yes, the Hippocratic Oath. That Oath was written during a time when abortion was actually widely accepted. The Roe v Wade text states QUOTE: Most Greek thinkers … commended abortion, at least prior to viability. For the Pythagoreans, however, it was a matter of dogma. For them, the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, ‘echoes Pythagorean doctrines,” and “in no other stratum of Greek opinions were such views held or proposed in the same spirit of uncompromising austerity.”
So even in ancient Greece we see people grappling with the question of “when is it acceptable to allow abortion, and they were not of one mind. It was in that setting that Hippocrates created his historic Oath for physicians which stated, QUOTE"I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy." ENDQUOTE Most people don’t know the Oath included this phrase about not performing abortions. We are more familiar with the phrase “First do no harm.”
So wait - in ancient Greece abortions were performed often, but doctors were prohibited from performing them? In that case it sounds very similar to what continues to happen now.
Also, in my opinion “Do no harm” must be applied to the woman/mother as well. And we all know how the ancient Greeks viewed women. As “misbegotten man,” according to Aristotle. So again, to me, this is a patriarchy issue.
Well, we could also take a moment to consider who is making these oaths and laws in ancient Rome and Greece. All men, right? It is really so frustrating that women are not the authorities on their own bodies. And of course this patriarchy lasted beyond the days of ancient Greece. The justices ruling on Roe v Wade continued their review of abortion’s history, by visiting the more recent past. They noted QUOTE “It is undisputed that at common law, abortion performed before "quickening"— the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense. END QUOTE
So here, lawmakers are trying to figure out when a fetus becomes a living human soul, and for some time the accepted point was when it began to move. Now just for fun, I want to include this finding from our reading:
QUOTE: Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation.”
Doesn’t that just give you a warm fuzzy feeling? Men were alive and could not be aborted after 40 days, but females weren’t really formed and alive until 80. Hello patriarchy. Hello men being in charge. So this is funny because actually testes don’t descend until about week 8, meaning we all look female for at least the first 40 days. So they had it backwards. Haha
Luckily, there was no empirical basis for this 40-80 view, and QUOTE:
There was agreement ... that prior to [quickening] the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide.Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed.” ENDQUOTE
Moving forward, we come to the year of 1803, when England developed its first criminal abortion statute. Which made early abortion a crime, but abortion after quickening a capital crime.
A capital crime!!!
Yep! This is a point in history where the law doubles down. And if you end a pregnancy, you are ending a potential life and that is basically murder. I will add this. QUOTE: It contained a proviso that one was not to be found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."
Okay I find this part really frustrating. I need more information about what it means to preserve the life of the mother. This is something I read throughout the historical review of abortion. That abortion was ok if it was going to save the life of the mom. What if the mother, like Mary Doe, had a neuro-chemical imbalance and she would live, but she might suffer postpartum depression to the point of suicide. Or what if she has such a low platelet count that she is not expected to die, but she could hemmorhage and suffer brain injury and never function fully again? I am imagining a group of doctors and lawmakers discussing these individual situations....and the woman whose quality of life hangs in the balance, does not have any kind of say. I am happy to share with you the following quote from Roe v Wade: QUOTE
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman." ENDQUOTE
Yes, this takes mental health into consideration (thank goodness!). I have really been impacted by watching BBC’s Call the Midwife. To listeners I would particularly recommend Season 2, Episode 5, and Season 5, Episode 3.
And I was also by having a dear friend who told me recently that she had had an abortion when she was in college, and reading about so many women all over the world whose stories I had never considered. One example was from an NPR story on a woman in Pakistan named Mehnaz.
Mehnaz, who was married at 13 to her cousin in their tiny village and had four daughters in quick succession. When at 19 Mehnaz became pregnant again, she panicked. She already had four daughters, and her husband was threatening to throw her out if she had another.
… She pleaded with doctors to sterilize her. She says they told her she had to wait until she was 40 — or get a permission slip from her husband. He refused: "He says he can't sign this, it's a sin."
She says he also refuses to use condoms or to stop having sex with her. If she has another girl, she says her husband may well abandon her.” (https://www.npr.org/sections/goatsandsoda/2018/11/28/661763318/why-the-abortion-rate-in-pakistan-is-one-of-the-worlds-highest)
How could I presume to make a decision for this woman?? Let alone, how could any man, or group of men in a faraway government office, presume to make a decision about what is best for this woman in her circumstances?
And this is representative of soooo many women, all over the world.
And we’re going to wrap up there for today, and resume with more on our next episode. There is so much to talk about and we are only covering a fraction! So join us next time for Part II of Roe vs. Wade, next time on Breaking Down Patriarchy.