The Anti-Abortion Movement and the Ghost of Margaret Sanger

Abstract

The Anti-Abortion Movement and the Ghost of Margaret Sanger Melinda Cooper (bio) Click for larger view View full resolution Margaret Sanger in Los Angeles in 1928 (Los Angeles Tmes/Wikimedia Commons) [End Page 60] After half a century of unremitting assaults—years spent defunding abortion care, restricting abortion access, and terrorizing women and their doctors—the religious right has achieved its first major judicial breakthrough: the overturning of Roe v. Wade. Among a volley of first-term decisions by the ultraconservative Supreme Court supermajority installed by President Donald Trump, Dobbs v. Jackson Women's Health Organization must be seen as part of an unfolding judicial counterrevolution. The electoral pushback against the decision has been impressive, and no doubt stronger than Republicans had anticipated. In ballot initiatives in Kansas, Kentucky, California, Michigan, and Vermont, voters have either rejected proposed abortion bans or reaffirmed existing protections. Yet the Dobbs decision is unlikely to be the Supreme Court's last word on the matter. For decades, religious conservatives have wanted to overturn Roe and return abortion laws to state legislatures. But they have never seen this as the be-all and end-all of their struggle. For the right-to-life movement that emerged in the 1970s, the reversion of authority to states is a stepping stone on the road to a higher goal: a federal prohibition on abortion that would overrule the ability of any state to legalize the practice. The recognition of fetal personhood is a key plank in this agenda. In the years leading up to the Roe decision in 1973, as legal historian Mary Ziegler recounts in Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, anti-abortion activists called on state and federal courts to recognize the civil rights of the unborn. They appealed to the Declaration of Independence, with its affirmation of an unalienable right to life, and to the Fourteenth Amendment (the Reconstruction-era amendment that reaffirmed and clarified the rights enumerated in the Declaration) to argue that the unborn deserved equal protection and due process like any other minority. In several instances, they cited as precedent the 1954 Brown v. Board of Education decision outlawing segregation, hoping to convince the courts that fetuses, like African Americans under Jim Crow, were natural persons unjustly deprived of their full rights to life. [End Page 61] Their efforts were unceremoniously rebuffed by Justice Harry A. Blackmun, author of the majority opinion in Roe, who argued that fetal personhood was nowhere to be found in the Constitution and that, in any case, the Court had no authority to rule on a matter that was unresolved among religious scholars and biologists. Crucially, however, Blackmun acknowledged that if the concept of "person" could somehow be construed to apply to the unborn, then no one could legitimately deny due process and equal protection rights to fetuses—and the case for abortion rights would "collapse." In the wake of Roe, anti-abortion activists remained hopeful they could work through Congress and the states to secure a constitutional amendment that would establish the personhood of the fetus once and for all. Their hopes faded in 1983, when the most promising of such proposals died in Congress. At this point, they resorted to less direct ways of inserting the concept of fetal personhood into law. Beginning in the mid-1980s and accelerating after the Planned Parenthood v. Casey decision of 1992, anti-abortion activists fought for fetal homicide laws, late-term abortion bans, fetal pain legislation, and state edicts compelling women to view ultrasound images of fetuses before abortion. In adopting these more incremental measures, religious conservatives were conceding tactical defeat. Yet they never lost sight of the strategic endgame. Such legal changes were designed to turn the idea of fetal personhood into common sense; an accumulation of minor laws could be invoked as precedent at the right time. With a 6–3 conservative supermajority and a Republican Party moved far to the right, that time has clearly arrived. Anti-abortion activists are now returning to their original goal: "the recognition of fetal personhood and the criminalization of abortion," Ziegler writes, in all states. ______ In preparing the ground...