History Teaches: Reproductive Rights and Equality
This story was cross-posted from History Teaches, a Substack about reproductive rights and feminist issues. Subscribe for updates at the link.
In addition to the U.S. Supreme Court’s terrible and anti-democratic ruling that nearly mooted the last remaining bulwark of the Voting Rights Act, a lower federal court last week ruled anti-democratically and devastatingly against reproductive rights—a ruling that would make medication abortion inaccessible via telehealth, despite a complete lack of data to support this move.
In a less well-reported case, a state appellate court in Pennsylvania held that the state’s ban on Medicaid funding for abortion services violated the state constitution—because it violated the Pennsylvania Equal Rights Amendment, i.e., constituted a form of sex discrimination, and because it violated the state’s Equal Protection Clause, treating people with health insurance through the Medicaid program who sought abortions differently people with Medicaid-based insurance who sought medical services other than abortion. This latter argument worked because the majority of judges on the Pennsylvania Commonwealth Court also found that there was a fundamental right to reproductive autonomy under the state constitution.
This is the latest chapter in a long-running and, for repro advocates, must-watch drama of evolving legal doctrine and reproductive politics in Pennsylvania. (See my earlier writing from the New York Review of Books.)
While the dust settles on the Pennsylvania court decision, and the leading company that produces the drug mifepristone, used in medication abortion, appeals to the Supreme Court to stay the Fifth Circuit’s ruling that will otherwise make the drug dramatically less accessible than it is today [UPDATE: The Court did grant a temporary stay], I thought it was a good time to add some historical perspective on the issues here.
FIRST, FOR ANYONE WHO DOESN’T YET KNOW, mifepristone is itself something of a blast from the past—and in a saner world, I think the debate over it would lie in the dustbin of history. French researchers developed the drug, under the name RU-486, in the middle 1980s. It, in combination with a second drug, misoprostol, was approved for use in France in 1988 (under the Socialist Mitterrand government).
The United States could have followed the French path. Our predecessors could have transformed the politics of reproductive health care, not to say the politics of health care in general. They could have done what the Mitterrand government did and supported research into the efficacy and safety of these new drugs, and then made them available at low or no cost to people who had come to conclude that they wanted or needed to end their pregnancies—with whatever medical supervision would make this a safe alternative.
What would have happened? Probably, then, as now, medication alternatives would have become very popular, as they are very, very safe and reliable drugs in the first 10 or 12 weeks of a pregnancy. U.S. patients would, perhaps decades ago, have chosen this alternative in over half the cases of abortion, as they do now. This would have short-circuited the years of clinic protests and battles over funding and defunding Planned Parenthood and other groups that supply the infrastructure of abortion access. (In Europe, my friends on Planned Parenthood boards of trustees have told me, Planned Parenthood is involved in advocacy and drug development but does not operate the freestanding health clinics that are the main part of its operations in the U.S. This is because there is no need for them in countries with universal health care, and in which a wide range of reproductive health care options are available through the regular health care system.) Alas.
The Congressional Research Service (a very neutral, in-house information-gathering office for the U.S. Congress) reported in 2000:
China and the United Kingdom approved RU-486 in 1991, Sweden in 1992, and the following countries in 1999: Russia, Austria, Belgium, Denmark, Finland, Germany, Greece, Israel, the Netherlands, Spain, and Switzerland. Since 1988, more than 620,000 European women have used the drug to terminate pregnancy. Ten million abortions are performed annually in China, and about half are carried out with RU-486 … In the United States, the drug’s long journey to FDA approval began in 1983, when the agency agreed to clinical trials of RU-486 sponsored by the Population Council. After many difficulties in finding a manufacturer and distributor for the drug, final FDA approval was granted and the first U.S. orders for RU-486 were shipped on November 20, 2000.
For years, the U.S. government maintained an unnecessary but kind of CYA in-person dispensing requirement for mifepristone. The COVID-19 crisis threw the whole infrastructure of reproductive health care into disarray and created terrible peril for people who wanted or needed to end their pregnancies. (As a state-level Planned Parenthood board member, I remember it all too well.) The silver lining in the terrible crisis was that the U.S. Food and Drug Administration finally relented on the special restrictions it had placed around mifepristone—and not around other drugs with comparable levels of complications. Finally, at a moment when it was unsafe for patients and providers to be interacting in person more than they had to be, it became possible for people to access mifepristone via telehealth.
So the Fifth Circuit Court of Appeals now proposes to send people back to the unnecessary pre-COVID-19 status quo ante. In addition to all of the other problems with this, of course, the judges on this court propose to make this change at a time when federal protection for abortion rights has disappeared. Unlike that Pennsylvania court, which found reproductive rights to be fundamental and controls on access to reproductive health care to be a species of sex discrimination, the U.S. Supreme Court majority opined in Dobbs v. Jackson Women’s Health Center (2022) that there was nothing “fundamental” about reproductive autonomy in this sense, and it rejected arguments for national reproductive rights as a matter of sex-based equality.
SECOND, ABOUT THE SEX-EQUALITY ARGUMENT: That deprivations of access to abortion and other reproductive health care options are a kind of sex discrimination is an old argument, although one that has barely gotten a serious hearing in court. It was made, I show in my book, A Woman’s Life is a Human Life, in the very first feminist litigation about abortion. This was the case Abramowicz v. Lefkowitz, a New York federal appeals court case in which feminist attorneys used activist lawyering tactics in an effort to get judges to rule that the draconian New York State abortion statute was unconstitutional. The case also used tactics of the mass feminist movement; instead of having a single super-respectable plaintiff whom the lawyers thought male appellate court judges would find sympathetic, they had hundreds of plaintiffs, women from a wide array of circumstances, those who had sought abortions but been unable to get them, those who had gone to Puerto Rico for illegal procedures that were easier to get than those in New York, and those who might someday seek abortions and who felt themselves stigmatized into a kind of second-class citizenship by legislation that forbade this one kind of health care so intimately related to female biology and women’s social role.
This kind of argument was made, famously, by Ruth Bader Ginsburg, before she was a Justice on the U.S. Supreme Court. It was asserted in the course of her criticism of the reasoning in Roe v. Wade, which was based on “substantive due process” (liberty) and not on anything having to do specifically with women. With no direct evidence, I think this was part of Ginsburg’s bid to be taken seriously; by criticizing her predecessors on the Court, and this most famous of liberal and feminist appellate opinions, she could flag her independence of mind and her willingness to be a Justice for all the people and not a hack representative of one group or one political side—despite the fact that she literally invented the women’s rights project at the American Civil Liberties Union earlier in her career. In fact, she started making this argument when she was a candidate for a lower federal judgeship, before she was considered for the Supreme Court.
I wrote about this, and about why, as a matter of history, Professor, then Judge, then Justice Ginsburg was wrong at the time the Dobbs v. Jackson case was being argued to the Supreme Court, in late 2021. It wasn’t that the theory was wrong, but that Ginsburg’s interpretation of history was incorrect: There was no way that the Supreme Court as it was actually constituted at the very start of the 1970s was going to rule on the basis of sex equality to overturn state abortion restrictions. In fact, I found a reflection on the claim in the papers of Justice Blackmun, who wrote the opinion in Roe—and who was pretty exasperated about his handiwork having been made her foil as she rose to the legal pinnacles.
The theory wasn’t wrong, and it isn’t. In fact, the other renowned publicist of it was the conservative activist Phyllis Schlafly, who claimed that the national Equal Rights Amendment (ERA) was a great threat precisely because it would lead to stronger constitutional protection (perhaps inviolable protection) for the right to access abortion. The fascinating and high-stakes legal debates that have occurred in the past few years in Pennsylvania call us back to the Schlafly argument of yore. Pennsylvania courts seem now not only to be securing abortion rights in a general way but also doing what so many advocates wanted in the late 1970s and 1980s, when the Hyde Amendment in Congress and the Supreme Court opinion in Harris v. McRae (1980, also in my book) allowed for barring the Medicaid program from covering abortion care. Pennsylvania judges have now said, instead, that an abortion right is not a meaningful right if it is not accessible to those with different kinds of insurance, including the millions whose health insurance is through Medicaid.
Phyllis Schlafly also argued that the logic of ERA, the logic of sex equality, would tear down restrictions on women’s military service, would open the door to same-sex marriage recognition, and lead to unisex bathrooms. She was not a stupid woman. (In fact, my brilliant colleague Stan Katz, legal historian and onetime ACLU part-time advocate, debated Schlafly on matters of sex equality and referred to her as his most able sparring partner ever.
LAST THURSDAY, I PARTICIPATED IN a conference about reproductive rights and justice coordinated by the National Council of Jewish Women-New York chapter. I argued that the main thing History Teaches in reproductive politics is that enormous changes are possible. The people I have researched, in the pre-Roe movement, started at the far outskirts of respectability and political credibility. They worked their way to the center in a remarkably short period of time—using every tool at their disposal, from well-heeled lobbying, to street protests, mass civil disobedience, litigation (like Abramowicz v. Lefkowitz) that edged into the courts with the logic of a mass protest movement, electoral organizing, pushing doctors to change their practices and priests and rabbis to change what they were saying from the pulpit. In New York, which I study most closely, and which led the nation and was a springboard to Roe, they went from first organizing a National Organization for Women chapter that made decriminalizing abortion a central demand in 1967, to the most liberal legislation in the country in the spring of 1970 (effective July 1, 1970). That 1970 law was the first in the nation to contain no residence requirement, and so the politics of abortion changed across the country.
Things can change. Even for the better. Even in this embattled area of law and policy.
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