Susan Brownmiller's In Our Time: Memoir Of A Revolution continues to be of interesting reading.* The important of personal accounts, including those of victims, is underlined -- "consciousness raising" and so forth. The chapter on the abortion fights had some interesting tidbits, including "Jane," a Chicago based group that performed abortion themselves -- without doctors. A Slate frayster is convinced that the Thirteenth Amendment by nature is the answer to showing that the right to choose is a constitutional right, one basically absolute. He would disagree with Roe v. Wade's comment that the state can limit them to physicians for safety reasons.
Likewise, a woman involved at around the same time as the Jane collective was charged with practicing medicine without a license in respect to her menstrual extraction work -- she plea bargained to one count of fitting a diaphragm. Sounds almost like a message in the ridiculous. In fact, given the Baird case -- involving handing out contraceptives (foam) to the unmarried -- arguably inhibiting the distribution of presumptively safe contraceptives is a violation of the right to privacy. Justice White (with concurrence of Blackmun) so argued in this pre-Roe case. Things would be different for those substances usually prescribed, such as the pill, or potentially dangerous medical treatment like an abortion. Anyway, even Griswold involved in a medical clinic.
The book also references a Florida woman who was charged with manslaughter after a botched abortion. This somewhat belies a rallying cry -- why do pro-life people not target women, only doctors? Are they hypocrites or just anti-women? Do the not think pregnant women have a will? If so, they too would be guilty. Texas did not target the women; as the head lawyer Sarah Weddington noted in orals, the women is deemed the victim. But, meanwhile, California law -- after its reform law [signed by Gov. Reagan, but generally targeting minors under 15, rape victims, and a broad health exception -- it was not a "repeal" law like the one in New York] -- noted: "a woman who solicits or submits to an abortion is punishable by up to five years' imprisonment."
True, many laws did not target the women, surely not in practice. But, this in part can be defended as a pragmatic move in various respects. Care should be taken when talking about this subject -- hyperbole is liable to be wrong. For instance, the case where I found the contours of the California cited a case upholding the right to force a blood transfusion against religious opposition to save the life of the fetus. [The same court later decided saving the life of a women also will do the trick though one apparently atypical court case said medicine is too unsure of itself to actually know if withholding treatment will actually lead to death, so ruled the other way.]
The principle was upheld, apparently selectively (state rulings; know of no federal court stance on the subject), after Roe as well. Forced cesarean sections also have been known to occur, but they raise more concerns -- I am willing to say tentatively the blood transfusion rule might be legitimate to save the life of a eight month fetus. The ban on viable abortions except to save the health/life of the woman is more intrusive than that. Or, is the mere insertion of the needle an unlawful tort?
Abortion has been of interest to me for years and for years I have noticed how it has been subject to misleading statements. In recent debates over the South Dakota law, for instance, remarks were raised that things like in vitro fertilization and so forth were not known of in the times of Roe, so the sanctity of life from conception developed with our knowledge. Meanwhile, someone mentioned that morning after pills are not really "contraceptives," since contraception already occurred in many cases. It turns out Roe dealt with both issues -- underlining that "contraception" is not really a clear line, including noting many scientists consider conception to be a "process." Thus, targeting implantation can be "contraceptive."
But, I really don't think people actually read Roe -- they just ridicule it. Closer looks generally lead to more nuanced reasoning, something I fear even those who seem to be in the know need a few lessons on. A few looks at some of the quite interesting pre-Roe lower court rulings on abortion can do some people a lot of good, for instance, including those who think Roe came out of the ocean fully borne ala Athena. Also, a few address the question of the unborn, including questions of personhood and protection. Roe provides useful citations here.
I myself addressed "unborn persons" in something I am writing.** Going back to that blood transfusion, why is this question not addressed in more detail in anti-abortion dissents? Where is the fetal rights opinion of Justice Thomas? I actually would welcome one (good to balance things) ... I'm sure there are law review articles on the question for which his (or maybe Justice Alito's ... even CJ Roberts' has a Feminist For Life wife, right?) clerks to research. The anti-abortion libertarian Nat Hentoff referenced fetal health care years ago to raise a similar point: the unborn as patient, presumptively as person. Justice Scalia rather make fun of the right to privacy -- underlining in his Casey dissent that states have every right to allow abortions, if they so wish to do so. But, a look at the pre-Roe case law gives us one that noted:
Biologically, when the spermatozoon penetrates and fertilizes the ovum, the result is the creation of a new organism which conforms to the definition of life just given. Although this is a definite beginning, there is no assurance in any particular case as to how long the life thus begun will continue. ... Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.
The dissent in Steinberg v. Brown, 321 F. Supp 741 (N.D. Ohio 1970) showed the weakness of the argument, including respecting the actual law at issue, but even Roe noted that striking down the unborn personhood argument does not end the question. But, who actually reads Roe?
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* She also wrote a path breaking book on rape -- Susan Estrich, before she became a bit of an annoying loud mouth writing defending Hillary Clinton also wrote a small book entitled Real Rape that is quite good. SB went in some questionable directions. Her statement that the state should not allow a person to buy a woman's body (prostitution) seems a tad bit overblown -- is she against models, sex surrogates, escorts, and the like? Also, though she admitted it became excessive, the anti-pornography movement is clearly a mixed bag. Yes, there pornography is in various ways not good for women. But, it clearly is a legitimate matter in some general sense, and the attempts to ban it was ridiculous.
** My general sentiment is that there are "quasi-persons" which/whom the state protects in some partial way, the most well accepted being corporate persons. But, if a corporation can be a "person" for limited purposes, since the word has a certain legal meaning, why not other beings? For instance, animals, Klingons, or even the unborn? The "all or nothing" sentiment is not mandatory ... if anything, even corporations these days have too much security, which is surely not the case back in the day when they had much more limited discretion.
The 21st Century will have enough dealings with life before birth that some independent right metric will have to be formulated. The rights of pregnant woman will remain, but I think artificially thinking of the unborn as basically non-existent as a "person" will not work. It does not completely work now, especially with late term abortion bans.
And, the general public does not think of things that way -- they see a development of rights, which suggests that in some sense there are rights at stake before birth. Back to Roe -- no rights in a "full" sense is a telling turn of phrase.