The NPR Politics Podcast - America Before Roe v. Wade

Episode Date: May 7, 2022

The Supreme Court may be on the cusp of overturning Roe v. Wade, the 1973 ruling which established abortion access as a constitutional right. In this edited conversation from September, Nina Totenberg and Tamara Keith discuss what the U.S. looked like before the Roe decision — and what it could look like if the high court strikes it down.This episode: White House correspondent Tamara Keith and legal affairs correspondent Nina Totenberg.Support the show and unlock sponsor-free listening with a subscription to The NPR Politics Podcast Plus. Learn more at plus.npr.org/politics Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. This week, a leaked draft of a Supreme Court opinion suggested the court is poised to overturn Roe v. Wade. It's important to state how consequential this would be. It would undo almost 50 years of legal precedent. And more than 20 states are poised to ban or severely restrict abortion if Roe falls. Last fall, Nina Totenberg and I discussed the history of abortion rights in America. We talked about what the country was like before Roe v. Wade and what it might look like after. You know, it has been nearly a half century since the Supreme Court legalized abortion. That means there is an entire generation, more than a generation, who doesn't know what life was like without legal abortion in the United States. So, Nina, can you not made illegal until the late 1800s.

But by the 1960s, abortion like childbirth was really a very safe procedure when performed by a doctor. And women were entering the workforce in large numbers. And to have a child out of wedlock was to make working not only far more difficult, but it was like putting a scarlet letter on your back. It was scandalous. As a result, illegal abortion was becoming a public health problem. The numbers of women who had illegal abortions each year ranged from 200,000 to over a million. I know that's a wide estimate. In 1973, NPR spoke to one of those women who had an illegal abortion. She didn't want her name used. I was very ashamed, but now I see that I was ashamed for many reasons

more than just the things that I had done. In other words, I think I was ashamed because I had nobody to help me. When you have an illegal abortion, all the institutions and all the people which normally support you through a crisis disappear into the mist. And I think this is one of the most damaging things about it, because when you make that decision, you are probably as lonely and alone as you will ever be in your whole life. That is a devastating story and not an uncommon one at the time. That's right, Tam.

And to talk about how the Roe case came to be at the Supreme Court, I talked to somebody who was actually there at the time. Hi, I'm George Frampton. I was a law clerk for Justice Harry Blackmun at the time that the Roe v. Wade case was argued and decided. At the time, if you were a young woman who lived in a college dormitory, you were likely to see one or more women carried out of your dorm hemorrhaging from a botched illegal abortion. Those abortions either had to be obtained undercover if you had a sympathetic doctor, if you were wealthy enough, or likely, illegally in back rooms by abortion.

Often by abortion quacks, crude tools, no hygiene. By the early mid-60s, thousands of women in large cities were coming into hospitals bleeding, risk of their lives, often maimed. The best way I can describe it would be the equivalent of having a hot poker stuck up into your uterus and scraping the walls with that. It was excruciatingly painful. The attendant that was there held me down on the table. I must say he worked on me more as though I were literally a piece of meat, and I don't mean that to be vindictive, but that was the way the relationship was.

And as a result, in the mid-60s, a reform movement had started, begun to decriminalize abortion, treat it like a normal medical decision between a woman and her doctor. Mr. Chief Justice, and may it please the court, we are once again before this court to ask relief against the continued enforcement of the Texas abortion statute.

So, Nina, I am guessing that because this is the way things work in this country, there was like a patchwork of state laws with different different rules and different approaches that came to the Supreme Court. Correct. The American Law Institute, a highly respected group of lawyers, judges, and scholars, published a model abortion reform law supported by the American Medical Association, and many states began loosening the restrictions on abortion. Four states legalized it, and a dozen or so other adopted some form of the model law which permitted abortion in cases of rape or incest, fetal abnormality, and to save the life or health of the mother. Most of the laws followed the ALI recommendations, but by the 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as George Frampton observes,

When this came to the court, it wasn't a big political or ideological issue at all. That seems sort of surprising. I mean, given where we are politically right now, wow. In fact, you know, the justices of the Supreme Court back then were mainly conservative establishment figures. Six were Republican appointees, including the courts-only Catholic, and five were generally conservatives, as defined at the time, including the four appointed by President Nixon. These were people who were establishment conservative justices who saw this as a constitutional aspect of a medical and legal reform movement.

As it happened, Roe was argued twice because of the death of two justices, and by January of 1973, the court was ready. Justice Blackmun announced the decision for a 7-2 majority. The Supreme Court today ruled that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy. So the framework established in Roe and upheld repeatedly by the court was that for the first two trimesters, the choice was the woman's. Correct. With some qualifications added in 1992, when the court said that states could enact some restrictions as long as they didn't impose a, quote, undue burden on a woman's right to abortion.

The justices thought that this was going to dispose of the constitutional issues about abortion forever. Of course, that's not what happened. Instead, in the decades after Roe, abortion became one of the most contentious partisan issues in U.S. politics. More on that after a quick break. And we're back. When we reported on this issue in the fall, the court overturning Roe was a hypothetical you live, with much less access in swaths of the South and Midwest. We would expect to see states that already limit abortion, banning it and imposing pretty serious prison terms. We would expect to see there being kind of abortion battleground states, the usual suspects, places like Florida or Pennsylvania, where we wouldn't know ahead of time what the rules were. And we would expect to see the more progressive states probably implementing policies to make it easier for people from out of state to seek abortion there. In the longer term, though, the anti-abortion movement is not going to be satisfied with

reversing Roe. We've already seen in the Mississippi case, anti-abortion lawyers asking the court to recognize the personhood of a fetus or unborn child under the 14th Amendment, which would make abortion unconstitutional everywhere and make it illegal in places like New York and California as much as in places like Alabama. Ziegler said the courts might not be open to that argument immediately, but it's clear this fight isn't going away. In the United States, abortion access has become a deeply partisan political issue. Restricting abortion is one of the most motivating issues for the religious right and the Republican base, while Democrats are more likely to support protecting access to abortion. Ziegler said in other countries, abortion doesn't divide people in the same way. Well, I think there are probably two things that are different. One is that some, not all, but many of those countries reached a settlement through democratic means, right? In Ireland, there was actually a referendum that was put to the people. And so whatever settlement was reached in those countries was more likely to reflect what the

median voter thought, which is not something we have in the United States, really anywhere in pro-choice or pro-life states. And secondly, in most of those countries, there's public health insurance available to everyone so that it's realistic to have people be forced to seek abortions in the first whatever 12, 15, 18 weeks and actually be able to get the procedure done by then, whereas in the United States, there's no such health insurance. And then I think finally, there are a lot of people in the United States who have a stake in our polarized politics, right? It's a way to raise money. It's a way to get people out to the polls. And so it's striking how little our politics resemble our polling when it comes to what people actually

would like. All right, let's leave it there for now. We'll be back in your feeds on Monday with the latest political news. I'm Tamara Keith. I cover the White House. And thank you for listening to the NPR Politics Podcast.