Chapter 4
The Supreme Court's Shifting Standards: From Roe to Casey to Gonzales
The Supreme Court's abortion jurisprudence has undergone dramatic transformations since Roe v. Wade. The original 1973 decision established a trimester framework: during the first trimester, states could impose minimal regulations; during the second trimester, they could regulate to protect women's health; and after viability, they could protect fetal life. This approach gave physicians significant discretion in early pregnancy while allowing greater state intervention later.
By the late 1980s, with Reagan's appointees on the bench, many expected the Court to overturn Roe entirely. In Webster v. Reproductive Health Services (1989), a fractured Court upheld Missouri's restrictions without explicitly overturning Roe, suggesting five justices were highly skeptical of abortion rights. Justice Scalia explicitly called for Roe's reversal, while Justice O'Connor proposed an "undue burden" standard that would permit far more restrictions.
The pivotal Planned Parenthood v. Casey decision in 1992 surprised observers by preserving what the plurality called Roe's "essential holding"-that women have a constitutional right to end pregnancies before viability. However, Casey discarded the trimester framework in favor of the undue burden standard, which prohibited regulations with the "purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."
Casey's reasoning reflected how arguments about abortion's consequences had reshaped constitutional discourse. The Court preserved abortion rights partly by acknowledging how legal abortion had helped women achieve more equal citizenship: "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."
The undue burden standard proved malleable, allowing the Court to uphold most of Pennsylvania's restrictions while striking down a spousal notification requirement based on evidence of domestic violence. This approach invited litigants to present evidence about specific regulations' costs and benefits, making factual disputes central to constitutional analysis.
In Gonzales v. Carhart (2007), the Court further transformed abortion jurisprudence by upholding the federal Partial-Birth Abortion Ban Act despite its lack of a health exception. Justice Kennedy's majority opinion deferred to Congress on disputed medical questions, holding that legislators had "wide discretion to pass legislation in areas where there is medical and scientific uncertainty." The Court also accepted the government's interest in preventing women's potential regret, citing amicus briefs from women who regretted their abortions despite acknowledging "no reliable data to measure the phenomenon."
This evolution from Roe to Casey to Gonzales reflected broader shifts in how both movements framed abortion. As arguments increasingly focused on abortion's effects rather than abstract rights, the Court's analysis similarly centered on weighing costs and benefits-with justices often reaching different conclusions based on which evidence they found credible.
Chapter 5
The Family at the Center: Parental and Spousal Involvement Laws
Almost immediately after Roe, anti-abortion advocates proposed laws requiring husband and parental involvement in abortion decisions. These laws resonated with Americans anxious about rapid family changes-the divorce rate had climbed dramatically following no-fault divorce laws, opposition to premarital sex was declining, gay and lesbian rights were becoming more visible, and women's workforce participation had increased significantly.
The Supreme Court addressed family involvement laws in several cases. In Planned Parenthood v. Danforth (1976), the Court struck down both spousal consent and parental consent requirements. However, Bellotti v. Baird II (1979) established that states could require parental consent if they provided a judicial bypass option allowing minors to prove their maturity or that abortion served their best interests.
By the late 1980s, major anti-abortion groups promoted parental involvement laws partly to strengthen their relationship with the Republican Party. These laws offered a politically viable strategy that enjoyed broader public support than outright abortion bans. Between 1974 and 1985, abortion opponents successfully promoted twenty-three such laws, making this one of their most effective campaigns.
Abortion-rights attorneys faced significant challenges when contesting parental involvement laws. The ACLU Reproductive Freedom Project argued in Hodgson v. Minnesota that requiring minors to notify both parents before obtaining an abortion could endanger those from abusive families. They presented testimony about violence, incest, and other family dysfunctions that made notification dangerous.
Anti-abortion attorneys also pursued fathers' rights cases as potential vehicles for overturning Roe. Unlike parental involvement litigation, these cases more directly challenged abortion rights by arguing that men's interests in potential fatherhood could outweigh women's reproductive decisions. Attorneys James Bopp and Richard Coleson strategically portrayed women seeking abortions negatively while lauding men who wanted to marry and provide for their children.
Casey ultimately struck down Pennsylvania's spousal notification requirement, with the Court citing evidence of domestic violence: "we must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion." The Court rejected the law's "view of marriage... repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution."
The debate over family involvement laws revealed how both sides increasingly framed their arguments around competing visions of family relationships and gender roles. Anti-abortion advocates emphasized traditional family authority and parental rights, while abortion-rights supporters focused on family dysfunction, domestic violence, and women's autonomy within marriage.
Chapter 6
Abortion and Healthcare: The Battle Over Medical Authority
By the early 1990s, both sides turned more attention to health-based arguments as healthcare reform gained bipartisan support. When Clinton won the presidency, speculation began about his reform plan, which reportedly would include abortion coverage.
Casey had made it urgent for abortion-rights supporters to explain how abortion helped women achieve equal citizenship. Health-based arguments helped answer how regulations that made abortion harder to access harmed women's equality by damaging their health. With the Freedom of Choice Act campaign faltering due to internal conflicts, abortion-rights groups developed a new platform focusing on national healthcare reform, medical abortion legalization, Medicaid funding restoration, and clinic access protection.
Abortion-rights supporters sought new ways to address provider shortages. The National Abortion Federation launched the Access Initiative Project to encourage medical school abortion training, while Planned Parenthood of New York offered its own training program. These efforts aimed to reestablish abortion as delivering important health benefits for women.
Meanwhile, anti-abortion activists increasingly promoted research suggesting links between abortion and breast cancer, with organizations like the Breast Cancer Prevention Institute founded to document this connection. Joel Brind, a biochemist who opposed abortion, became a key figure in this campaign. Americans United for Life developed model legislation requiring abortion providers to inform women about the purported breast cancer risk. While some studies suggested a possible connection, other research found no significant link, and major health organizations including the World Health Organization and National Cancer Institute rejected the connection.
Crisis pregnancy centers increasingly transformed themselves into medical clinics during this period, with organizations like the National Institute of Family and Life Advocates helping them adopt medical models. This shift reflected the growing importance of medical authority in abortion politics, as both sides sought to claim scientific legitimacy for their positions.
The healthcare framing of abortion reached its apex during debates over the Affordable Care Act. Anti-abortion legislators like Representatives Bart Stupak and Joseph Pitts fought to prevent federal funding of abortion in the bill, eventually settling for an executive order barring such funding. The contraceptive mandate later became another flashpoint, with religious organizations and businesses objecting to covering contraceptives they considered abortifacients.
By positioning abortion as either essential healthcare or a dangerous procedure, both movements sought to influence how Americans understood the medical aspects of abortion. This strategy shifted the debate from abstract rights to concrete questions about who should determine medical standards and evaluate health risks-physicians, patients, legislators, or courts.
Chapter 7
The Partial-Birth Abortion Controversy: Visual Politics and Scientific Authority
The partial-birth abortion debate centered on who had the authority to determine the procedure's costs and benefits. After Republicans gained a House majority in 1994, anti-abortion lobbyists promoted a ban on dilation and extraction (D&X), a procedure they labeled "partial-birth abortion." The ensuing debate revealed deep divisions about the trustworthiness of medical organizations, the media, and politicians in matters of scientific evidence.
Pro-lifers argued the procedure was visually disturbing enough that ordinary Americans could judge it without expert input. Representative Charles Canady and Barbara Vucanovich sponsored a bill banning D&X in 1995, with witnesses like nurse Brenda Pratt Shafer urging lawmakers to "be marched into an operating room" to see an abortion firsthand.
Meanwhile, abortion-rights supporters highlighted women like Colleen Costello who had undergone D&X after learning her unborn daughter had a fatal neurological disease. "We are the ones who know," Costello testified, arguing that women who benefited from the procedure should decide its fate.
Though Congress passed the ban in December 1995, Clinton vetoed it in April 1996 because it lacked a health exception. NRLC argued any health exception would effectively create "partial-birth abortion on demand." Despite failing to override Clinton's veto, pro-lifers continued pushing for the ban, encouraged by polls showing strong public support for prohibiting the procedure.
The partial-birth abortion debate reflected broader conflicts about science, politics, and expertise in the 1990s. Like climate change skeptics and anti-vaccine activists, abortion opponents questioned the credibility of established scientific authorities. When Ron Fitzsimmons, a lobbyist for independent abortion clinics, admitted he had "lied through his teeth" about D&X frequency, it damaged abortion-rights groups' credibility. While he had previously claimed only a few hundred procedures occurred annually, he later suggested thousands were performed, especially in the second trimester.
In Stenberg v. Carhart (2000), the Supreme Court struck down Nebraska's partial-birth abortion ban. Justice Breyer, writing for the majority, emphasized that given the "division of medical opinion," the Constitution required a health exception because there was "significant likelihood" that D&X might be safer in certain circumstances.
However, after George W. Bush's election and his appointment of John Roberts and Samuel Alito to the Supreme Court, Congress passed a similar federal ban. In Gonzales v. Carhart (2007), the Court upheld the law, with Justice Kennedy's majority opinion deferring to Congress on medical disagreements. The Court held that lawmakers had "wide discretion to pass legislation in areas where there is medical and scientific uncertainty."
This controversy transformed abortion politics by establishing that when scientific evidence was contested, courts might defer to legislators rather than medical experts. This approach created incentives for both sides to generate uncertainty about abortion's effects, rather than seeking consensus on basic facts.
Chapter 8
Religious Liberty and the War on Women: Modern Framing Strategies
As the abortion debate entered the 21st century, both sides developed new framing strategies to mobilize supporters. After the 2010 Tea Party wave, state legislatures passed a record number of abortion restrictions. The Tea Party movement, fueled by anger over the Affordable Care Act, helped elect overwhelmingly pro-life legislators. Groups like the Susan B. Anthony List, which had grown from spending $200,000 in 1998 to having a $7 million budget by 2010, increasingly aligned with Republicans to pass new restrictions.
Abortion-rights groups used attacks on Planned Parenthood to reframe their message around a "war on women," connecting abortion access to both affordable healthcare and equality. This strategy proved effective-after Congress proposed defunding Planned Parenthood, the organization saw its Facebook following surge by 992 percent and online donations increase by 500 percent. In the 2012 election, nearly $17 million poured into advertising highlighting this narrative, with EMILY's List becoming the highest-spending single-issue group.
The religious freedom debate intensified when the Affordable Care Act mandated coverage of female contraceptives without co-pays. While churches were exempt, religious universities, hospitals, and for-profit businesses were not. Some employers refused to subsidize what they viewed as abortion-inducing drugs, despite medical organizations like ACOG disagreeing with this classification. Major anti-abortion groups like AUL and NRLC, which had historically avoided contraception issues, now condemned the mandate.
The Supreme Court ultimately sided with religious businesses in Burwell v. Hobby Lobby (2014), ruling that closely-held corporations could claim religious exemptions under the Religious Freedom Restoration Act. Critics worried this defined religious conscience too broadly, while religious organizations continued challenging even the exemption process in cases like Zubik v. Burwell (2016).
After 2010, abortion-rights groups worked to destigmatize abortion while advancing a reproductive justice framework. The #ShoutYourAbortion campaign began when Amelia Bonow shared her positive abortion experience, which quickly gained over 100,000 mentions in 24 hours with support from NARAL and Planned Parenthood. Anti-abortion lawmakers condemned it as "macabre," creating counter-hashtags like #ShoutYourAdoption.
Despite increasing polarization, abortion rates declined to 14.6 per 1,000 women by 2014-the lowest since 1973. This decline occurred alongside a surge in restrictions, with 288 new abortion laws (27% of all restrictions since Roe) passed between 2010 and 2016.
The Trump administration dramatically changed Title X regulations, barring abortion referrals and requiring physical separation of abortion services from family planning practices. This caused Planned Parenthood to withdraw from Title X, costing them $60 million annually, while crisis pregnancy centers gained federal support. The Supreme Court further helped CPCs in NIFLA v. Becerra by striking down a California law requiring disclosures about abortion availability and medical licensure status.
Chapter 9
The Road to Dobbs: Polarization Without Resolution
When Anthony Kennedy retired in 2018, President Trump nominated Brett Kavanaugh to replace him. Despite sexual assault allegations from Dr. Christine Blasey Ford, Republicans confirmed Kavanaugh, seemingly creating an anti-Roe majority. The nomination intensified gender-based political divisions, with abortion-rights supporters increasingly positioning themselves as women's defenders.
Following Kavanaugh's confirmation, pro-life absolutists pushed for more aggressive challenges to Roe. Some promoted "heartbeat bills" banning abortion after fetal cardiac activity could be detected (around six weeks), while others defended mandatory counseling laws to screen for coercion. By 2019, numerous states passed extreme abortion restrictions, while pro-choice states enacted broad protections for abortion rights.
Many commentators have speculated that overturning Roe might eventually deescalate the abortion conflict. Both Ruth Bader Ginsburg and Antonin Scalia argued that by recognizing a constitutional abortion right, the Court interrupted potential state-level compromises and radicalized opponents who felt disenfranchised. However, recent history suggests this view is deeply flawed.
The abortion conflict became polarized well before Roe, and a focus on incremental restrictions has done nothing to reduce bitterness. Opposing sides still hold irreconcilable constitutional beliefs, and debates about costs and benefits have created new sources of disagreement. Those on either side disagree about fundamental issues including teen independence, poverty assistance, healthcare delivery, and who can fairly measure abortion's impacts.
Neither movement has achieved lasting victory in the abortion debate. Pro-lifers have pursued overturning Roe but ultimately want recognition of a right to life that would criminalize most abortions. Abortion-rights supporters have witnessed steady erosion of constitutional protections, with women in many states already facing extremely limited access.
The conflict will likely continue regardless of Roe's fate, with battles shifting to state legislatures. The growing divide reflects broader political polarization, but both movements have strategically profited from taking extreme positions to fundraise and rally their bases. We can no longer blame the Supreme Court exclusively for the impasse. The abortion debate will continue shaping national conversations about healthcare, poverty, government's role, family structure, and scientific expertise-telling a story about what kind of country America has been and will become.
Chapter 10
Beyond Constitutional Battlegrounds: The Future of Abortion Politics
The abortion debate has never been static but rather remarkably fluid and unpredictable. Battles over incremental restrictions have consistently reflected complex beliefs about issues only tangentially related to abortion, including poverty, personal responsibility, welfare, maternity, family structure, healthcare, and media trustworthiness. Though most Americans remain conflicted about abortion itself, the meaning of being "pro-life" or "pro-choice" has changed dramatically over time, as have the restrictions dominating debate.
Since 1973, the abortion conflict has evolved from a clash between absolute rights to include battles over policy costs and benefits. This transformation hasn't created compromise but instead revealed deeper divisions about welfare, family structure, scientific authority, and the boundary between fact and opinion-mirroring broader national debates about America's present and future.
As abortion returns to state legislatures following the Dobbs decision, Americans will continue debating not just whether abortion should be legal but what kind of society we want to create. The conflict has never been solely about constitutional interpretation but about fundamental questions of gender equality, family structure, religious liberty, and who deserves to make decisions about women's bodies and lives.
Mary Ziegler's comprehensive history reminds us that the abortion debate's complexity reflects America's own contradictions and divisions. By understanding how the conflict has evolved, we might begin to recognize that resolving it requires addressing not just constitutional questions but the deeper social, economic, and cultural factors that have made abortion such a persistent flashpoint in American politics.
