Roe v. Wade: Texas Then and Now

“Mr. Chief Justice, may it please the Court: It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

Supreme Court, 1973

Supreme Court, 1973

Thus Jay Floyd, Texas assistant attorney general, opened his December 1971 oral argument in Roe v. Wade, as his adversary attorneys Sarah Weddington and Linda Coffee sat nearby (no doubt dumbfounded) after Weddington had presented their argument for women’s abortion rights.

Wisely, the Texas reargument in 1972 opened with no attempt at humor. (When Roe was first argued, the Supreme Court consisted of only seven justices. Because the decision would be so historic, the Supreme Court decided to hear arguments a second time when all nine justices were in place the following year.) Then, on January 22, 1973, the Supreme Court decided that a woman’s right to an abortion was constitutionally protected and the 1854 Texas law at issue was struck down, along with abortion laws in 45 other states. (The Texas gentleman was right: The Texas ladies did have the last word.)


What will the Supreme Court bring us this year? “Don’t Mess with Texas” or “Don’t Mess with Women”?


So, as we approach the 43rd anniversary of Roe v. Wade this Friday, let’s mosey down memory lane. How did we get to that landmark decision, and where might we be going this year with a new Texas case testing abortion rights, Whole Woman’s Health v. Cole?

Throughout history, abortion has been a common practice. At the time of the adoption of the U.S. Constitution in 1787, abortion was legal in all states. Prior to the mid-1800s legal scholars were not proposing abortion laws, nor advocating “personhood” of an unborn child, nor asserting abortion control on medical safety or any other grounds.

So, what changed in the mid-1800s? This is just me, a non-lawyer, guessing, but I suspect that the patriarchy noticed in the 1840s that the likes of Elizabeth Cady Stanton and Lucretia Mott had begun the long march for the equality of women. Scary, huh? Surprise, surprise, a multitude of state abortion statutes starting sprouting up. The first spate of these laws was not concerned with protecting the “unborn,” but with controlling “born females,” citing sepsis and other abortion dangers as justification, as though those dangers hadn’t always existed. (We will see this disingenuous “protect the woman” tactic reemerge with a vengeance in the 1990s.)

In 1854, Texas outlawed abortion except to protect the life of the mother. The law was aimed not at the pregnant woman or fetus, but at the doctor performing the abortion. Clearly, this law as it stood for more than a century thereafter had no logical basis in protecting the unborn. How do we know? Because a woman who self-aborted could not be prosecuted. A doctor performing an abortion was convicted for killing a fetus, but a mother killing that same fetus was guilty of nothing. (Really?) I suspect the lawmakers figured that incarcerating women for their abortions might overstress Texas prisons and leave a whole bunch of their kids motherless. Nah, easier to go after the doctors.

Fast forwarding to 1971 Texas, here was the lay of the land as described by attorney Sarah Weddington, arguing before the Supreme Court:

A woman, if she becomes pregnant, and is in high school, must drop out of regular education process. And that’s true of some colleges in our State…

In the matter of employment, she often is forced to quit at an early point in her pregnancy. She has no provision for maternity leave …

She cannot get unemployment compensation under our laws, because the laws hold that she is not eligible for employment, being pregnant …

She can get no welfare to help …

There is no duty for employers to rehire women if they must drop out to carry a pregnancy to term.

So, what was a pregnant woman to do? With no abortion option, depend upon others, of course. Weren’t women just a fleet of biological vessels through which humanity passed, whose rights to a life of their choosing should be trumped by a fetus’ right to develop into a sentient being?

Still in the 1971 courtroom, attorney Jay Floyd explained that a class of pregnant women had no right to expect any consideration from the Supreme Court, because 21 months had elapsed since the court case began, and at least one woman of the class still had to be pregnant or they no longer had a valid complaint. (Really?)

Justice Potter Stewart: “What procedure would you suggest for any pregnant female in the state of Texas ever to get any judicial consideration of this constitutional claim?”

Attorney Jay Floyd: “Your Honor, let me answer your question with a statement, if I may … I do not believe it can be done. There are situations in which, of course, as the Court knows, no remedy is provided. I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice … But once a child is born the woman no longer has a choice and I think pregnancy may terminate that choice as well.”

Justice Potter Stewart: “Maybe she makes her choice when she decides to live in Texas.”

When the justices were clearly not buying that Catch-22 logic, Texas argued the merits of fetal personhood, but could not offer any evidence or even state clearly when fetal life began, given a continuum of development. At one point it was “conception” or “inception,” at another “implantation.” The matter was further confused at the second hearing by Texas Attorney Robert C. Flowers:

On the seventh day, I think that the heart, in some form, starts beating.

On the 20th day, practically all the facilities are there that you and I have, Your Honor.

Days? (Really?) OK, I’ll give Flowers the benefit of the doubt that he meant weeks, not days, but it does demonstrate how unfamiliar he was with pregnancy facts, and he never corrected himself.

The Roe v. Wade decision, autographed by Supreme Court justices and winning counsel

So, Roe v. Wade was decided, giving a woman a constitutional right to terminate a pregnancy with no restrictions in the first trimester, leaving to individual states limited room to legislate in the second trimester (defined as up to 28 weeks) and third trimester. (Think of it. Women not only shared the power of the vote, but now they had the exclusive power to decide when children would be born. Yikes!) In 1992, Planned Parenthood v. Casey modified Roe, reaffirming a woman’s unrestricted right to a first-trimester abortion and requiring states not to impose an “undue burden” on a woman seeking an abortion thereafter until viability (now defined as 22 to 23 weeks). After viability, laws had to include exceptions, as well.

Texas seized on Casey‘s expanded legislative power and conservative TRAP strategy (Targeted Regulation of Abortion Providers). By 2012, Gov. Rick Perry was saying, “Again, the ideal world is a world without abortion. Until then, however, we will continue to pass laws to ensure abortions are as rare as possible under existing law.” Texas stretched “undue burden” legal boundaries as far as it dared, aiming to prevent all abortions at any point in a pregnancy. As of December 2015, the following restrictions on abortion were in effect:

  • A woman must receive state-directed counseling that includes information designed to discourage her from having an abortion and then wait 24 hours before the procedure is provided.
  • The use of telemedicine for the performance of medication abortion is prohibited.
  • The parent of a minor must consent and be notified before an abortion is provided.
  • Public funding is available for abortion only in cases of life endangerment, rape, or incest.
  • A woman must undergo an ultrasound before obtaining an abortion; the provider must show and describe the image to the woman. If the woman lives within 100 miles of an abortion provider she must obtain the ultrasound at least 24 hours before the abortion.
  • An abortion may be performed at or after 20 weeks postfertilization (22 weeks after the woman’s last menstrual period) only if the woman’s life is endangered, her physical health is severely compromised, or the pregnancy is “medically futile,” based on the spurious assertion that a fetus can feel pain at that point.

That brings us to the latest assault, two parts of the Texas HB 2 law that have been upheld by the 5th U.S. Circuit Court of Appeals on the basis that (my non-legal summary) Texas can impose restrictions using “any conceivable rationale” without being reversed by the courts for failing the Casey “undue burden” test. The Supreme Court case, Whole Woman’s Health v. Cole, will be argued March 2, 2016, and probably decided in June 2016.

If the Supremes decide that the 5th Circuit erred in granting Texas free rein in deciding what are necessary, non-burdensome restrictions to protect the state interests, then the courts will proceed on the merits of two provisions of the Texas law:

  • Doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic. (Problem: Many hospitals require doctors to admit a minimum number of patients each year, and abortion is too safe to require lots of admissions to hospitals; many hospitals will not host doctors who perform abortions; etc. Medical experts say there is no need for this provision.)
  • Every health care facility offering abortion care must meet building specifications to essentially become mini-hospitals (also known as ambulatory surgical centers, or ASCs). (Problem: prohibitively expensive for safe, low-cost surgeries like abortion. Medical experts say there is no need for this provision, either.)

The real-world impact of these additional restrictions is that so many clinics will have to close (leaving as few as 10 in Texas) that many women will not be able to get a safe abortion at any time during their pregnancy and may well turn to the age-old method of last resort, self-abortion. That’s protecting women’s health, Texas? (Really?)

As a lay person, having read the briefs of all credible medical organizations, I cannot understand how the Supreme Court could allow Texas to flout its own “undue burden” ruling and continue to pursue their transparent strategy to eliminate all abortion in Texas. But I’ve been surprised at the reasoning of the Supreme Court before.

Stand by. Watch this space. What will the Supremes bring us this year? “Don’t Mess with Texas” or “Don’t Mess with Women”?

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