The Politics of Abortion History

Justin Buckley Dyer

doi:10.1017/CBO9781139410922.006

5 - The Politics of Abortion History

Published online by Cambridge University Press: 05 April 2013

Justin Buckley Dyer

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Justin Buckley Dyer: Affiliation:
University of Missouri, Columbia

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Summary

Shortly after Norma McCorvey filed her lawsuit against the Dallas District Attorney, inaugurating what would become the landmark case of Roe v. Wade (1973), a similar case was docketed for the Northern District Court of Ohio. In Steinberg v. Brown (1970), a pregnant twenty-one-year-old welfare recipient with a dependent child at home and an estranged husband (along with a physician, a psychiatrist, a social worker, and a minister) initiated a class action lawsuit challenging the constitutionality of Ohio’s long-standing abortion ban. “No person,” the Ohio Revised Code stipulated, “shall prescribe or administer a medicine, drug, or substance, or use an instrument or other means with intent to procure the miscarriage of a woman unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose.” In this case, a three-judge federal court was asked to declare Ohio’s anti-abortion statute unconstitutional. The right to privacy protected by various provisions in the Bill of Rights and made applicable against the states by the Fourteenth Amendment, it was argued, protected the right of Ohio women to seek and obtain abortions free from state legislative interference.

Yet a bill to revise and strengthen the restrictive abortion law at issue in Steinberg had been passed by the Ohio state legislature on April 16, 1867 – just four months after the same legislature had voted to ratify the Fourteenth Amendment. Similar abortion laws existed in state codes throughout the country when Secretary of State William Seward certified that the required 3/4 of state legislatures had also voted for ratification. Those same abortion statutes had remained on the books, largely unchanged, until the legal challenges of the 1970s. For jurists and scholars adhering to traditional canons of constitutional interpretation, an obvious question emerged: How could a statutory regime in place in 1868 and left undisturbed for over a century be deemed unconstitutional?

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Type: Chapter
Information: Slavery, Abortion, and the Politics of Constitutional Meaning , pp. 105 - 132

DOI: https://doi.org/10.1017/CBO9781139410922.006 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2013

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