Roe v. Wade 50 Years Later

Alicia Gutierrez-Romine

It’s perhaps no surprise that today’s anniversary of the Roe v. Wade decision feels different.

50 years ago, the US Supreme Court affirmed a woman’s right to make her own reproductive decisions. However, on June 24, 2022, SCOTUS took those protections away with the Dobbs decision.

Dobbs v. Jackson was a Mississippi case whose central issue was whether the state’s Gestational Age Act was constitutional. The Act prohibited abortions past fifteen weeks gestation except in cases of medical emergency, “or in the case of a severe fetal abnormality.”^[1]

As an abortion historian, I’ve explored the concept of legal vagueness and have become increasingly frustrated by the anti-abortion movement’s general ignorance of women’s bodies and pregnancy. This has also been compounded by anti-abortion politicians’ willingness to advance misguided “pro-life” policies that actually put public health at risk.

Laws like those in Mississippi assume a level of certainty and clarity that reality and medicine cannot provide. Even today, with so much technology at our disposal, calculating gestational age is not the same as measuring height, weight, or even age. For example, an OB-GYN 101 course module in the Johns Hopkins School of Medicine website states: “If everyone had normal, regular periods, every 28 days, and could remember exactly when their last period was, and ovulation always occurred on day #14 of the menstrual cycle, then gestational age determination would be easy…”^[2] But, spoiler alert: it’s not.

Would a physician who judged a pregnancy to be at 14 weeks gestational age, who performed an abortion, be denied due process because another physician estimated the gestational age to be sixteen weeks? Or fifteen weeks? 11 days can be the detail that defines whether an abortion is legal or illegal under this Act.

Furthermore, while most abortion restrictions seem to have provisions that allow abortions when necessary to save a woman’s life, the reality is that a law written by politicians, not medical professionals, does not capture the nuances of everyday medical practice. In the months since the Dobbs decision, the sheer number of news stories highlighting the plights of women denied healthcare (i.e. abortions) after miscarriage has been an alarming reminder of these laws’ many faults and shortcomings.

Given the risks associated with pregnancy and delivery in the United States—a nation with some of the highest maternal and infant mortality in the developed world—taking away federal protections to terminate pregnancies is tone deaf, and will also have disastrous consequences. For a court claiming its ruling is consistent with protecting life, its cavalier attitude towards women’s health and safety is decidedly telling.

Aside from vagueness in calculating gestational age, there is also vagueness in determining exceptions, like what constitutes a “fetal abnormality” or medical emergency—as noted above.

In the 1960s, two major incidents prompted some medical professionals and members of the public to demand access to more liberal abortion laws: the Thalidomide tragedy and the Rubella outbreak. In the Thalidomide tragedy (which affected primarily Europe) Americans witnessed the unfolding of a pharmaceutical disaster that resulted in over 10,000 children born with Thalidomide-related disabilities—particularly phocomelia, a congenital malformation of the limbs. Also in the 1960s, rubella outbreaks occurred throughout the globe—ultimately landing in California around 1964. 

While rubella itself is a mild disease—often just a rash and fever—for pregnant women, exposure to the rubella virus can result in Congenital Rubella Syndrome, or CRS, in the fetus. CRS can lead to deafness, cataracts, developmental delays, brain disorders, and heart defects. While treatable, it is incurable.

When the rubella epidemic hit California with full force in 1965, physicians and hospital therapeutic abortion committees were uneven in their treatment of rubella-related abortion requests.^[3] In an examination of Bay area hospitals, three performed abortions for patients exposed to rubella in the first trimester for fetal reasons; while some of the other hospitals only performed therapeutic abortions following a rubella diagnosis if the mother appeared to have psychiatric reasons to justify it (like suicidal tendencies).^[4] Other hospitals just considered each case individually.

Ultimately, this meant that women were not always able to get a legal abortion on the grounds of fetal abnormality. It depended on her physician, the hospital, and how her case was presented to the therapeutic abortion committee. Women did not receieve parallel or uniform treatment throughout the state. A whole host of factors often determined whether she could receive a legal abortion—which highlights one of the main problems of bureaucratized medicine: inequity.^[5]

In the last few decades, Reproductive Justice (RJ) scholars have called attention to the pitfalls of our obsession with “choice,” citing how there is no real “choice” for marginalized women who lack resources—-specifically access. This was as true 70 years ago as it is today. Those who suggest that women could just go to another state for an abortion, for example, illustrate perfectly our innate belief that choice is something only reserved for those who can afford it.

Abortion, like all other medicial procedures, is something best left to patients and their own medical providers. In crafting an abortion law that limits legal abortion to only certain criteria, physicians will be tasked with determining whether their patients fit these narrow categories of deserving or undeserving.

As physicians grapple with whether their patients’ realities fit into the small boxes that uneducated legislators created, women will be the ones who suffer the consequences.

1. Miss. Code Ann. § 41 – 41 – 191 (2018), § 4 (b).

2. Estimating Gestational Age. OB-GYN 101: Introductory Obstetrics & Gynecology, 2005, https://oacapps.med.jhmi.edu/OBGYN-101/Text/Pregnancy/estimating_gestational_age.htm.

3. By the 1950s and 1960s, nearly all legal abortions in California were performed in hospitals after being authorized by hospital therapeutic abortion committees. Physicians presented their patient’s case before the committee, and the committee deliberated and decided whether a therapeutic, that is legal, abortion would be approved. The move towards therapeutic abortion committees in the first half of the 20th century was brought on in part by a mistrust of physicians and their own judgement. The moving of abortion decisions away from the physician-patient relationship and to the physician-patient-hospital therapeutic abortion committee triad meant that the rates of legal abortions in the state of California fell, and physicians no longer had as much leeway to provide legal abortions for their patients on shaky legal grounds. See Leslie J. Reagan, Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkeley: University of California Press, 2012) and Alicia Gutierrez-Romine, From Back Alley to the Border: Criminal Abortion in California, 1920-1969 (Lincoln: University of Nebraska Press, 2020).

4. Interdepartmental Communication from the Department of Professional and Vocational Standards, Division of Investigation to Wallace W. Thompson, Executive Secretary of the Board of Medical Examiners, August 19, 1965, Dept. of Consumer Affairs-Board of Medical Examiners, F3760:822, California State Archives, Office of the Secretary of State, Sacramento, California.

5. Brian Pendleton, “The California Therapeutic Abortion Act: An Analysis,” Hastings Law Journal, vol. 19, no. 1 (1967): 242-255, p. 248-249.