Will Women Ever Have Control Over Their Own Bodies?
Reproductive health and rights are once again at the center of public debate following the nomination of Brett Kavanaugh to replace the retiring Justice Anthony Kennedy on the Supreme Court. While the intensity of the rhetoric is high and the composition of the next Supreme Court will certainly impact women’s rights, in many ways, there is nothing new about the debate. Throughout history, women have sought to control their fertility — for many of the same reasons they do today — and have grappled with political, social and religious forces standing in opposition. Women have been forced to give birth, forcibly prevented from getting pregnant, urged to have more children, scolded for having more children, but never entirely free to decide for themselves when or whether to have a child.
Understanding the history of the battles over women’s bodies and intersecting racial and gender politics at work offers valuable context for our current situation.
The “New World”
Until around the 1860s, abortion before “quickening” — the point at which a pregnant woman first feels the fetus move — was legal in the United States, as noted in the 1973 Supreme Court Roe v. Wade ruling: “At the time of the adoption of the constitution and throughout the major part of the 19th century…a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most states today. At least with respect to the early stage of pregnancy, and very possibly without such limitation, the opportunity to make this choice was present in this country well into the 19th century.”
This policy traces its roots to English law, first brought to the “new world” by Puritan colonists in the 17th century. Even the Catholic Church and its followers among Spanish and French colonists aligned with this prevailing view. In fact, Pope Gregory XIV pinpointed this moment of “ensoulment” as occurring 166 days into pregnancy, an interpretation that held until 1869, when Pope Pius IX called for excommunication as punishment for abortion at any stage of pregnancy.
Of course, the Europeans’ religious and legal views of their own fertility did not extend to the women and girls they enslaved, many of whom were forced to conceive through coercion or rape, and to bear children for the economic benefit of their owners. These children would often be taken from their mothers and sold to new owners. Some women resisted the only way they could — by inducing abortions or killing their babies shortly after birth to spare them a life in slavery.
1860s-1920s: The Rise Of The Medical Establishment
After the Civil War, the practice of midwifery, and the centuries-old tradition of women as trusted healers and health care providers, came under attack by a new male-dominated, professionalized medical establishment calling itself the American Medical Association (AMA). Its members sought recognition and power by depicting midwives as ignorant and dangerous, and publicly expressed concern over the safety of abortion procedures. The AMA emerged as the voice of the medical profession, and its role in the campaign to criminalize abortion led to laws in 40 states and territories either severely restricting or entirely banning abortion by1890. It also marked a significant shift in decision-making power from the woman carrying the pregnancy to the doctor.
Women’s decision-making power was further limited by the federal Comstock Law in 1873, which banned the manufacture, sale, advertisement, distribution through mail, or importation of contraception. Supporters of the “Social Purity” movement from which the law stemmed believed that contraception demeaned women by separating sexuality from procreation, and that even educational materials about contraception were obscene because they appealed to prurient interests.
For women with knowledge and means, the Comstock Law could be sidestepped. For example, rubber condoms, which had been introduced by Goodyear in 1855, remained popular. For others, it made birth control even harder to find.
Fears of a “Population Crisis” Emerge
As the U.S. continued to grow, a view emerged in some elite and academic circles — and voiced publicly by President Theodore Roosevelt — that demographic shifts were negatively affecting the nation and driving it toward a so-called “race suicide.” These fears, combined with theories on genetics and natural selection, became the basis for the “eugenics” movement which asserted that poverty and prosperity were rooted in heredity. Its supporters condemned the use of contraception among Northern European, affluent, highly educated women, whose primary social duty, they asserted, was motherhood. By extension, they sought to reduce birthrates among women with undesired traits — the poor, racial and ethnic minorities (e.g. Black, Chinese, Southern European and Jewish), disabled and “criminals” — through coerced birth control or sterilization.
Beginning with Indiana in 1907, a majority of states passed laws allowing the forcible sterilization of women who were judged “feeble-minded,” dependent, diseased, or incapable of regulating their own reproductive abilities. Among the most aggressive was North Carolina’s, where eugenics boards reviewed proposals from government and private agencies to sterilize poor, unwed and/or mentally disabled individuals. A Virginia law that required patients at state mental institutions to be sterilized was upheld by the Supreme Court in 1927.
Only after the race-based horrors of World War II did Americans finally become disenchanted with eugenics, although strains of the theory persist in the practice of forced or coerced sterilization. As recently as 1968, researchers found that more than a third of women of childbearing age in Puerto Rico had been sterilized, and only in 1978 did the U.S. government require doctors performing sterilizations covered by Medicaid to demonstrate that their patients understood and consented to the procedure.
Margaret Sanger Challenges Doctors and The Catholic Church
In the 1910s, growing numbers of white, middle-class women began moving away from and working outside the home. With this change came a shift in attitudes toward contraception, as demand for it grew and new, more effective methods were developed. But as wealthier women found new methods like the vaginal diaphragm (which was expensive and required a private fitting) available, they remained out of reach for poorer women.
Margaret Sanger and her supporters sought to improve the lives of women generally, and of working-class women especially, through education and access to better birth control methods. Indeed, they coined the term “birth control” to explicitly describe their goals: not only allowing women to limit or space pregnancies, but also empowering them to make their own decisions and achieve greater financial stability.
Like many progressives and “birth controllers” of the time, Sanger seized on the theories and language of eugenics to gain support for their efforts, and stated support for both voluntary birth control as well as coerced sterilization. Historians and advocates continue to debate whether Sanger held racist and ablest views personally or capitalized on the beliefs of others in strategic ways to further her interests in promoting the use of birth control.
In 1915, in defiance the Comstock Law, Sanger and colleagues opened a clinic for working-class immigrant women in Brooklyn, who lined up around the block seeking information. Police shut the clinic down nine days later, but Sanger was undeterred. In 1921, she established the American Birth Control League to promote information about and acceptance of birth control — by 1927, the group had 37,000 dues-paying members.
Two major forces standing against Sanger and legalized birth control were doctors and the Catholic Church. In his 1930 encyclical, Pope Pius XI resurrected St. Augustine’s sweeping anti-sex views, asserting that sex was acceptable only as it was linked to procreation, and prohibiting any form of contraception.
In the U.S., doctors were an even more powerful force against the legalization of birth control. Having effectively silenced midwives, they now held a monopoly on women’s health care, which they used to advance conservative sexual norms: that women’s primary function is reproduction; men’s sex drive is stronger than women’s; female chastity protects the family and should be enforced with severe social and legal sanctions; and the fear of pregnancy is natural and effective to keep women chaste.
Despite their opposition — or maybe because of it — Sanger strongly believed that physician involvement was necessary in order to legitimize birth control among the public and the courts, who would ultimately decide its legality. She devised a new strategy connected to physicians’ authority over birth control.
1930s to 1960s: Making Progress With Doctors
Among her efforts to make effective contraceptives available, Sanger routinely smuggled diaphragms into the U.S. One such package was confiscated under the Comstock Law’s importation ban, resulting in the 1936 “One Package” case, and a win for the birth controllers and the doctors when a judge ruled that the law’s intent was not to obstruct physicians from prescribing contraceptives in good faith to cure or prevent disease. This “doctors’ exception” became embedded in the law. However, because One Package was decided by a lower court, rather than the Supreme Court, it didn’t apply to the whole country, leading to a mishmash of interpretations. Some states allowed clinics to open while others allowed doctors to prescribe contraceptives only for extreme medical conditions.
But Sanger’s strategy worked. A public opinion poll in 1936 found 70 percent of Americans thought birth control should be legal — and the AMA recognized it as a proper medical practice one year later.
In 1942, the Birth Control Federation of America (having merged with the American Birth Control League) became the Planned Parenthood Federation of America. The new organization emphasized spacing of children more than limiting the number of children, and added infertility treatment, sterilizations and marriage counseling to its services. Sanger thought these changes had a “very weakening influence on the future of the movement.”
Sanger never wavered in her belief that, if effective birth control were available to all women, there would be no need for abortions. She dreamed of a magic pill that would make controlling fertility simple, and played a supporting role in making it a reality when she introduced her wealthy friend Katherine McCormick to biologist Dr. Gregory G. Pincus, and Dr. John Rock, a Catholic gynecologist who was studying how endocrines affect fertility. McCormick would fund their research and the clinical trials of “The Pill.” It was on the market by 1960.
One Woman’s Story Changes The Nation
In 1962, one woman’s personal experience spurred a worldwide debate and changed attitudes on abortion. Sherri Finkbine was an Arizona mother of four and host of a popular children’s television show. Early in her fifth pregnancy, she took an over-the-counter sedative her husband had purchased in Europe. Unbeknown to the couple, researchers had linked a key ingredient in the drug — thalidomide — to birth defects. She was denied an abortion in the U. S. though was able to obtain an abortion in Sweden, which revealed that the fetus was severely deformed.
The publicity around this case is often credited for changing American opinion and policy regarding abortion. In the 1960s, the AMA and the ABA (American Bar Association) updated their policies to permit abortion in limited cases. In 1967, Colorado became the first state to loosen its abortion laws, followed soon after by California (whose bill was signed into law by then-Governor Ronald Reagan) and ten others.
But most states still had strict bans not only on abortion, but also on contraceptives. Among them was Connecticut, where in 1961 Planned Parenthood affiliate head Estelle Griswold took on the state law against birth control, distributing it at a local clinic. In 1965, the Supreme Court concluded in Griswold v. Connecticut that the restriction on birth control invaded the zone of privacy for married women protected by several fundamental constitutional guarantees. This case was the first time a constitutional right to privacy was cited as a basis for overturning laws restricting access to reproductive services. This principle would be further extended in Baird v. Eisenstadt, a 1972 Supreme Court decision legalizing birth control access for unmarried women.
1960s to 1980s: Helping Women Without Resources
Although the legal right to birth control was expanding, cost remained a significant barrier to low-income and poor women. As part of his War on Poverty, President Lyndon B. Johnson began quietly allowing limited family planning funds to clinics. Following the Griswold decision in 1965, Medicaid funds became available for family planning services “to improve the health of the people, to strengthen the integrity of the family and to provide families the freedom of choice to determine the spacing of their children and the size of their families.” The official guidance from the federal government guaranteed “freedom from coercion and pressure of mind or conscience,” an acknowledgement of past coercive practices. By the early 1970s, family planning was a required service in every state’s Medicaid program. In 1970, Title X, a program providing federal dollars to family planning services for lower income women, found broad bipartisan support in Congress. It was championed by Congressman George H. W. Bush and signed into law by President Nixon.
Given the country’s history of eugenics, forced sterilization and countless other abuses against communities of color, some expressed grave concerns about government-funded family planning programs. When Title X clinics were first established in the 1960s, some Black leaders called birth control “black genocide.” Others, like Martin Luther King, Jr, believed that birth control gave Black men better control over their financial situation. Women like Angela Davis spoke out against claims that Black women had an obligation to increase the number of Black babies. In 1970, Shirley Chisholm said that equating abortion with genocide “is male rhetoric for male ears.”
When Medicaid was enacted in 1965, it covered all medical and surgical procedures for beneficiaries — including abortions in states where the procedure was legal. But such coverage was short-lived. In 1976 Congress passed the Hyde Amendment, which prohibited Medicaid payments for almost all abortions. Seven years after affirming abortion rights Roe v. Wade, the Supreme Court upheld the Hyde Amendment in 1980, allowing women’s ability to access safe and legal health care to be determined by her finances.
The Catholic Church revisited
Reflecting the social and political change of the 1960s, growing numbers of mainline Protestants and Reformed Jews were speaking out for the liberalization of abortion laws. American Catholics were hopeful that a similar change was coming when the Church convened a Papal Commission to review its 1930 position on contraception. Although the panel, comprised largely of priests and theologians, voted 30–5 to loosen the restrictions on birth control, in 1968 the Pope reaffirmed the Church’s existing opposition. Many Catholics were shocked. The encyclical that was issued addressed abortion only incidentally, as part of the contraception discussion. In the ensuing years, more and more Catholic women rejected the Church’s position, using birth control in numbers similar to non-Catholic women. The Church responded by increasingly emphasizing opposition to abortion as a defining aspect of Catholic identity.
The emergence of the second wave of feminism
The late 1960s and early 1970s saw the start of what is known as the “second wave” of the women’s movement. New organizations were established, seeking to achieve equal rights for women. Our Bodies, Ourselves, first published in 1971, fueled a “women’s health movement” that encouraged women to engage more fully in their own health care. Some women, such as those in the Jane Collective in Chicago, first arranged and referred women for abortions and eventually became providers themselves.
Echoing these cultural shifts, states across the country had already begun loosening or lifting their abortion bans when the Supreme Court decided Roe v. Wade, the landmark case of a pregnant single woman who challenged Texas’s prohibition on abortion. The 1973 ruling clarified the constitutional right to privacy articulated in the birth control cases Griswold v. Connecticut and Baird v. Eisenstadt, ruling that it is broad enough to encompass a women’s right to decide whether to terminate her pregnancy.
1980s and Beyond: Moving Backwards and Forward and Backwards Again.
The dawn of the 1980s saw the political pendulum swing yet again — this time to the religious right. Republican strategists, eager for Catholic votes, were already pushing the GOP to reverse its prior position and oppose abortion. Relying on language in the Roe decision that expressed increasing state interest in the fetus as a pregnancy progresses, Conservative Christians successfully lobbied for new abortion restrictions. States required spousal or parental consent for an abortion, banned the use of public facilities for services or counseling, and required abortions after the first trimester to be performed in hospitals.
All of these restrictions hit poor and marginalized women the hardest. In its 1992 Casey v. Planned Parenthood ruling, the Supreme Court held that restrictions could not place an “undue burden” on abortion access. The only restriction struck down was the spousal consent requirement. Justice Sandra Day O’Connor, the only woman on the court, wrote that this requirement went too far. But the vagueness of this “undue burden” standard allowed states to ramp up their restrictions.
The 1980s also saw a dramatic rise in anti-abortion harassment and violence, with protesters targeting patients and clinic staff. Some protests became violent, including bombings and death threats, arson, acid and anthrax attacks. At least 11 doctors and clinic personnel have been murdered in anti-abortion violence since 1993. The 1994 Freedom of Access to Clinic Entrances (FACE) Act made it a federal crime to use force, obstruction, or intimidation to interfere with clinic patients or staff — though such harassment and violence continues to this day.
As abortion became ever more challenging to access, new and more effective methods of preventing unintended pregnancy were developed, such as lower-dose oral contraceptives, the patch, and safer IUDs. The use of highly-effective reversible methods like the IUD and implant has steadily increased. In 1999, emergency contraception (or “morning-after pill”) was approved, and later made available without a prescription. A year later, the FDA approved the medication abortion method RU-486 for use in the U.S. Called the “abortion pill” by some, the scientists behind RU-486 called it the “moral property of women.”
Birth control access was vastly expanded by the Affordable Care Act in 2010, which required that all health insurance plans, except plans issued by religious institutions, cover the full range of FDA-approved contraceptives, with no out-of-pocket expense. A majority of states expanded Medicaid coverage for family planning services to previously uninsured women.
And the Supreme Court strengthened the “undue burden” standard of review by holding in the 2016 Whole Woman’s Health v. Hellerstedt decision that abortion restrictions must be supported by evidence that the stated benefits are reasonable in light of the limitations they impose.
While reproductive autonomy improved for many, access to affordable, quality care continues to lag in communities of color. Women of color are more likely to experience unintended pregnancy and Black women are at least three times more likely to die in childbirth than white women. Racist sterilization policies continue. As recently as 2010 sterilizations were performed on incarcerated women in California without their consent.
Americans’ views on reproductive rights remain steady. As of 2017, 89 percent say birth control is morally acceptable — and 99 percent of women have used it. Public support for legal abortion remains as high as it has been in two decades of polling, with 57 percent saying abortion should be legal in all or most cases. White Evangelical Christians are the only religious group among which a majority agrees abortion should be illegal in all or most cases. Of politically-affiliated groups, only a majority of conservative Republicans agree.
And still, lawmakers continue to pass devastating restrictions on abortion access. On the state level, the last seven years alone have seen fully one-third of the 1,200 restrictions enacted since abortion became legal nationwide in 1973. On the federal level, President Trump and his congressional allies are committed to rolling back any meaningful access to reproductive health care. Their proposals would eviscerate the ACA protections for birth control, minimize funding for effective contraceptives and teen pregnancy prevention programs and defund Planned Parenthood, among others. They promote conservative religious views over the individual rights of women, again and again.
Conclusion
Today, many American women have access to effective and safe reproductive health services than ever before. Yet the power struggles surrounding women’s bodies are as current as ever, as are the racial, economic and geographic disparities in access and care. Progress is made and lost, and women find themselves fighting the same battles over and over again. Today’s battles, including the battle over this and future Supreme Court nominations, will shape women’s reproductive lives for generations. As the debates rage on, women continue to ask, “Will women ever have control over their own bodies?”
