tv Lectures in History Legal History of Abortion in the U.S. CSPAN April 21, 2019 12:00pm-1:15pm EDT
for people who work hard enough live here. filmncer: watch the entire sunday at 4:00 p.m. eastern on real america. you're watching american history tv. next on lectures in history, tulane university professor karissa haugeberg teaches a class about the legal history of abortion in the united states from the 1840's through 2016. she discusses laws in the late 19th century that originally criminalized abortion as well as roe v. wade and the court cases and legislation that followed that landmark decision. her class is about one hour and 15 minutes. prof. haugeberg: we are nearing the end of this semester. today's lecture gives us a good way to bring together a lot of the themes we have been studying all semester. today we talk about reproductive rights. for
today's reading, you read about jurisprudence since roe v. wade. roby wade, cases, -- andand most recently today, i will talk about the back history. how did we get to the legalization of abortion? at one time, it had been criminalized in every single state. first of all, i will remind you of some of the things we study. some of the historical context, and one is that before 1821, the laws were based on english common law. there were someone earlier reading that according to english common law, abortion was criminalized only after quickening. what was quickening? yes.
>> when you feel the heartbeat. >> when he feels the fetus move? prof. haugeberg: it was when the woman feels the fetus move. you remember when that is in the pregnancy? this was from an early reading. it is about four or five months. about that time when the fetus actually moves, a woman would report it would move. it was after that point that abortion was criminalized. before that point, it was not a criminal activity. the very first new abortion laws that were passed in the united states were done so in the 1820's. a handful of states began to criminalized -- to criminalize abortion after quickening. these were new laws that departed a little bit from english common law.
the reason why the authorities wanted to intervene is that there were unlicensed entrepreneurs who were selling women products they promised would induce an abortion but were in some cases misleading. they were false products. there they were poisons that these women were ingesting. there were women who were getting very ill and dying from these poisons. a handful of states stepped in and wanted to control the sale of poison. things that were harming women. it is important to note that women were not prosecuted, and they were not the subject of the laws. physicians were not the subjects of these laws. surgical abortions were not outlawed, mechanical ones were not. it was a poison control method. it was intended to protect women from these entrepreneurs. note, abortion wasn't a big deal in the 1820's.
ministers not decrying abortion from the pulpit. and when candidates ran for office, they weren't asked about their position. there wasn't a vitriolic issue. this wasn't covered in the newspapers routinely. most americans had no idea these new laws were being passed. it starts to become a more public issue, a more controversial issue between 1847 and 1867. it is during this time period, about these 20 years that every state that was in the union at that time criminalized abortion in most circumstances. usually the only way it became legal to perform an abortion was if a woman's life was at risk. a handful of states made an exemption if a woman's health was at risk. louisiana is right in the middle of this effort. louisiana criminalized abortion in 1856. technically, the law
was pretty strict. it was only if a woman's life would be jeopardized by a pregnancy, so anyone caught performing an abortion for any other reason was subject to 10 years of hard labor in the state penitentiary. when historians go back and look at what actually happened, we found that when physicians performed abortions, even in louisiana because they were worried about a woman's health, we found that they were never prosecuted. technically the law was pretty strict, we found that courts didn't really intervene. attorneys general did not press charges. sometimes we have to be very mindful of the difference between what is written in the law and how the law is practiced in society. this is an important moment for historians to intervene and see what was happening. you may recall from the essay we read that there was a reason why these laws were
passed. do you recall who initiated the first campaign to criminalize abortion at all stages of pregnancy? who wanted these laws on the books? ok. specifically, before hospitals are a big deal, who in hospitals one of these laws? do you remember? you are very close and that will come up, especially in the 1950's. it is during this 100 years before, it is largely physicians who want criminal abortion laws. who is providing most of the abortions in this time period? >> midwives and people like that. prof. haugeberg: exactly. a lot of historians look back at this moment and understand this to be a professional tension. these physicians wanted control over
the obstetrical and gynecological market. as it is today, it was one of the most lucrative markets. childbirth is very expensive. as you grow older, you will learn that the bill that you or your partner get when you have a child is very high. physicians wanted control over the market. they argued that abortion was murder but it was sometimes necessary. and we needed people with professional expertise to understand when it was necessary to intervene. they said this is a professional issue, let the professionals handle the issue. don't let midwives control this market. it is really a professional powerplay. it was successful. one thing and one reason why it is interesting to study the issue through the lens of history is we can cut through
the vitriolic debate we have about abortions. we can now see how did people respond to these laws? one thing historians know for certain is even as every state criminalized abortions, the practice continued. we have looked at arrest records, hospital records, and death records. historians are confident that 25% of pregnancies between 1967 and 1973 ended through abortion. again between 25% of pregnancies , between 1967 and 1973 ended by abortion. the practice continued, even though it was technically criminal in most cases. a student asked me to repeat the dates. between 1967, as every state has criminalized it and 1973 -- i'm sorry 1867 and 1973, up to 25%
of pregnancies were ended by abortion. yes during the period that was , criminalized. that's ok, that is all right. >> thank you. again it is ag: , commonly practiced procedure, even though it is usually done criminally. another thing, this is something that we read about this semester, the enforcement of these criminal laws vary tremendously over time. at one -- at what point in global history did we kind of ignore these laws? >> during the great depression. said duringerg: he the great depression, and this is the case globally. the soviet union, the united states, why did authorities turn a blind eye
to these laws? yes? >> because children are expensive. they recognize that people didn't have jobs, they didn't have the means to take care of them. absolutely.erg: one thing that have -- historians have found when we survey the record, during periods of economic decline, when people are suffering, generally authorities are more permissive of practices like birth control and abortion as people are suffering and having a difficult time feeding families and they want to delay pregnancy or have fewer children. this kind of brings us to where we are at this point in the semester. what is the economy like in the 1950's, the postwar economy? >> booming and everybody has a lot of money. it kind of gets generalized.
prof. haugeberg: the economy is doing very well. what are we in the middle of after world war ii? >> the baby boom. prof. haugeberg: absolutely. there is a lot of cultural antithesis on wanting to have more children. some people call pro-baby,talist, having more children. it is during this time period that the authorities actually ratchet up the enforcement of criminal abortion laws. it has been pretty hands-off during the 1930's and they begin to reverse course in the 1950's. there is much more scrutiny of abortion and making sure people are not performing the procedure illegally, and that women who are not technically qualified don't get them. at the same time, there is a medical history unraveling. that is that physicians previously usually
performed in private practice. think about going to a dentist, you often go to a house like structure, and it is usually not in a hospital. that is what going to the doctor used to be like. the doctor would come into your home. by the 1950's, physicians moved practices into hospitals. in the 1920's and 1930's, if a woman wanted an abortion and had a good relationship with her doctor, this is something we talked about, her doctor would often sign the paperwork that would make it look like this was medically necessary and perform it. really, no one was the wiser. if the doctor written it on a piece of paper, that was sufficient. now doctors are starting to move into hospitals in the 1950's, there are a lot more people scrutinizing what the doctors are doing and the decisions they are making. that leads us to today's lecture. this period of increased scrutiny on abortion.
so there was popular -- there are reform movements that lead to roe v. wade. among the how do we get this -- to this. of increased scrutiny to reform? among the reasons why there was a lot of popular support for criminal abortion laws is that the number of women who began suffering skyrocketed by the 1950's. as it became more difficult to obtain abortions from doctors, women turned to the illegal underground market. it is estimated that 1.2 million women were turning to the underground by the 1960's. rather than going and getting a legal abortion, they are turning to a variety of providers. these
experiences vary wildly. some women find trained nurses and physicians who give them safe abortions. these doctors and nurses are working illegally. they could be put in jail. other women end up going to afar safe, what we call botched abortions, and as i mentioned to you, there was a tulane student who got a botched abortion and the french quarter in the early 1960's and died. again, 1.2 million women were navigating this underground, this illegal market and have been having wildly different experiences. as many as 5000 american women were dying every year from botched abortions. overwhelmingly, most are getting safe abortions. still, 5000 women a year started to die. this was a significant increase from where we had been in the 1930's. women of color were four
times more likely to die from botched abortions than white women. why do you think that would be the case? why would women of color be so vulnerable to an illegal market? any ideas? >> they couldn't get a safe abortion because of segregation and things like that. they couldn't get a good doctor. >> most people found safe abortions through people they already knew had abortions. so they had access in the past, and they wouldn't have had access then. prof. haugeberg: what i'm hearing from both of you is you needed a doctor willing to vouch for you in order to get through a hospital appropriations process. >> if i'm understanding correctly, what you said is that women of color might have and more reluctant to get help after
getting a botched abortion or had -- prof. haugeberg: francis is pointing out that it became cost prohibitive. that is one thing we know about these abortion committees. that is what they were called. you had to go through a committee approval process in a hospital. in order to get committee approval, you had to see a psychiatrist and often two separate physicians. you had to pay out-of-pocket for all of these visits. plus, you had to pay for the abortion. women of means were much more likely to be able to afford this process. it is important to know that the
women of means had petitions were usually rejected too. in a sense, by the 1960's we have a public health crisis on our hands. hospitals have to open special septic wards to treat all the women coming in from botched abortions. this is affecting all women across socioeconomic groups, religions, again, this is considered to be a public health crisis by the 1960's. one thing you might find interesting is that among the people who called for reform were clergy. there were some of the most vocal proponents for revising these laws. why clergy? why would clergy be calling for the decriminalization of abortion? what position did they have in society? where are their experiences? who would you imagine some of these young women were turning to for help? yes?
you are mentioning that clergy are witnessing women may be in at congregations suffering. ok. in certain religions, they would putting an emphasis on confection -- confession, so there would be people hearing that could be a problem. among theeberg: things i am hearing from you is that we confessed deeply personal things only to certain people. among the people who end up taking in a lot of deeply personal information are clergy. that is often who we turn to. keep in mind that clergy are presiding over the funerals of young women, mothers who are dying from abortions. for them it became a personal issue,
comforting grieving families. they are trying to help young, scared women who are potentially going to break the law. it becomes a moral imperative for some of these clergy. again, this group was called the clergy consultation service. there were rabbis, there were baptist preachers, there were methodist ministers. what they did is especially by the 1970's, they helped women to states where the procedure had been legalized. especially to new york state and washington, d.c. they wanted to make sure the physicians who were performing procedures were not overcharging women. they would interview women after the experience to make sure they were treated well. they provided their own regulatory mechanism as well. it is estimated that by
1970, they were helping 150,000 women a year secure legal abortions. they were in almost every state. they often worked with college student groups. there were many college women who sought abortions. another group that was important and were women who were deemed to be sympathetic. a sympathetic woman in this era would be a woman who didn't want an abortion but somehow had to have one. two things really guided this. there were a lot of pregnant women who wanted pregnancies, wanted to have children, who were infected with german measles. there was a german measles epidemic in the 1960's. this caused horrible birth defects. for women who
were pregnant, this caused horrible birth defects. the second major thing that happened that there was a thalidomide scare. has a one -- has anyone ever heard of that drug? tranquilizer, a but it was dangerous, and it wasn't tested very well before hitting the market. among theeberg: reasons why many of you probably never heard of it is it was never approved by the fda in the united states. the fda was headed by a woman. she said there hasn't been enough data. i don't feel comfortable signing off. it was never legal in the united states, and this is why it there weren't a lot of women who ingested this drug. this drug made into the cabinets of some
american households. perhaps of most famous american to take thalidomide was a woman named sherry finkbine. this is a very typical tragic story of how someone unwittingly needs an abortion. in 1962 she was pregnant with her fifth child. she was a well-known person in arizona. she hosted a popular children's show called romper room. it was kind of like mr. rogers so among children in arizona she was very well known. she was married, pregnant with her fifth child, wanted this pregnancy. her husband was a high school band leader and went over to england with his high school band. while he was there
he had a hard time sleeping. he went to a doctor and the doctor prescribed him thalidomide. he was able to sleep the rest of the trip. he brought that prescription, the medicine home with him to arizona. it was at that time that his wife started to suffer from a lot of morning sickness. she was very uncomfortable and wasn't sleeping well and still filming the show. he said to his wife, why don't you take this drug i was prescribed in england? she began to take it for several nights. one morning she opened the newspaper and read an article about how this drug, thalidomide, had been linked to all sorts of very bad birth defects throughout europe. especially in belgium, europe, and england. it was a very tragic story. pending on what stage of pregnancy, the babies
would be born with all of the organs outside of the body. they often only survived a couple of hours. if it was ingested during other parts of pregnancy it resulted in the flipper arms. people would have a little bit of a limb. often their arms or legs. she called her doctor immediately and said look, i just read this article, can you help me understand what the implications of this are? he made a few phone calls to physicians in england and learned she had taken it during that point in pregnancy in which the outcome is almost inevitably horrible, that a baby is born with the intestines out. they only survived a few hours. this is during medical history before there was really good neonatal care. there was very little physicians could do for these babies who were born. she and her husband are beside
themselves. they were incredibly sad by this news. they wanted this baby. her physician advisor said i would advise you to get an abortion if you were my daughter. in 1962 in arizona, as in most states in the united states at this time, the only way a woman could legally get an abortion was if her own health or life were at risk. in cases like this with german measles, a woman could carry a pregnancy to term and be perfectly healthy. it is the fetus, the baby that would be born deformed. according to the letter of the law, sherry finkbine should have never been approved for an abortion in the state of arizona. but her physician pulled some strings and got her approved for a medically approved abortion at a phoenix hospital. sherry think
finkbine in between getting this approved, getting an appointment set. she called a local newspaper because she wanted to get the word out. there was a military base close to her house. she said my husband brought this drug back from england. these military guys could be bringing this drug back to their wives. these women who want to have babies could unwittingly be taking this drug that will cause them to have children who are going to die. she granted an interview with a local newspaper. it was a front-page headline, local woman takes thalidomide. has been approved for an abortion in an arizona hospital. how would you imagine the administrators of that arizona hospital that had approved that abortion reacted question -- reacted? . they locked it down. they knew they could be sued by the attorney general for being in
violation of the state law. they immediately called her and said your abortion is canceled. you cannot have it here and you put us at enormous risk. then she started calling around to other hospitals. by this point, the story had been picked up and run in almost every newspaper in the country. no hospital wanted to touch this case. eventually, she had to go to sweden to get this procedure. her husband was a high school teacher. she hosted a public access show. they found a travel agent who was willing to pay their ticket because they could not afford to go on to their own. what is especially tragic is that almost immediately, they were targeted by protesters. they got hate mail. their house had to be -- the fbi had to come out to protect them because they received so many death threats. their children received death
their dognd even received death threats. all of them are in the archives. nevertheless, she became this rallying cry for people who previously felt like abortion is a private issue, something we don't talk about, the tide began to turn because this woman who needed an abortion but never thought she would want one was put under this much stress. what could happen to my daughter or my wife if something happened? this became a catalyst for people to engage this controversial topic who never wanted to have anything to do with it. as we have been talking about in the second half of the semester, there is also a resurgent feminist movement by the late 1960's and into the 1970's. these women are making the claim that in order to be equal participants in society, women need the right to birth control and abortion. in order
to finish college, to complete a graduate program, women needed to be able to delay pregnancies. one thing that is important to note is in large part, these are not the influential people who are influencing state legislators or judges. another thing circulating in the background -- again when we think about abortion, we almost always fixate on the legal history. again, there is this important social history. there is also an important legislative history unfolding at the time. this is a period of legislative reform. one thing a lot of students don't recognize is before roe v. wade, there were some states that had already begun to change abortion laws. either by reforming them, or in the case of new york and
colorado, repealing them altogether. again, there was a reform movement already afoot by 1967. the states in pink and red had begun to reform. any questions so far? among the most successful lobbyists and the most well-funded lobbyists at the time were physicians. physicians had the ear of the state legislators. what is interesting about this is who had led the campaign to criminalize abortion in the 19th century? physicians. once again, it is physicians leading the campaign to decriminalize abortion in the 20th century. for them, they were so very aware of the acute public health crisis.
they were the ones treating 15-year-old girls coming in with botched abortions. again, the argument they made is these laws interfere with their ability to make professional judgment. the state has no business interfering in their relationship with patients and providing care they think should be provided or not provided. again, the most successful, powerful lobbying group was not feminists going in and talking to state legislators. for the most part, it was these physicians. what is also notable is in the 1960's, a record number of women became state legislators. both republican and democrat. the types of issues that they thought were important to start litigating changed.
diversity matters. these legislators became more attentive to things like domestic violence laws, birth control laws, abortion laws, family laws, inheritance. what is interesting is in many of the states that reformed or repealed their laws, this legislation was often initiated by women legislators. it was just as likely to be a republican as it was a democratic woman. there were a lot of feminist identified pro-choice republican legislators. many of you did your oral history projects found these republican women. can you raise your hand if you were one of them? i know there were a few of you. jordan, what is it that you found? you studied the oral history records of one of these republican women, what was she like? >> at one point she lost her seat in the house. the gop representative for north
carolina called her to ask her to run again. she told him she refused to run if they tried to muzzle her on women's issues. if they tried to quiet her when she was talking about women's issues in general. they let her run and the gop didn't contradict whatever she said. prof. haugeberg: jordan found the example of a very powerful north carolina legislator who was a republican but who was feminist identified. the oral history transcript she studied really got at, in the 1970's, the republican party was in flux. it was changing a lot. for a lot of these feminist identified republican women, there would not be a place for them in the republican party by the 1980's. yes? >> i think in the 1970's and
1980's, i heard that is why the abortion issues picked up. it kind of became their big thing. all these people who were antiabortion came with them. it used to not be a republican and democratic issue. it used to be a personal preference, it became a way to again.p th prof. haugeberg: amanda is getting at this issue of how did abortion become this hot button, very partisan, very ideological issue in politics today? i think one thing that is so history is we now know that was not always the case. this wasn't always a hyper partisan issue. this wasn't the sort of question we would've asked the presidential candidate in 1964. it would've been considered
impolite and irrelevant to politics. it has become such a very divisive issue. that began in the 1970's and into the 1980's. what we have in the 1950's are are republican women. they don't feel like they are being hypocrites or strange by offering this legislation. the democratic party is still the party of catholics in the 1960's. a significant number of state legislators who are democrats are antiabortion during the 1960's. it looks very different from the politics we see today. again, in 1967, colorado became the first state to completely repeal its abortion law. so that meant women didn't have to have that health exemption to get an abortion.
they made sure it was only for in-state residents. the case study we are more familiar with is new york. in 1970, new york passed a similar law allowing elective abortions. they allowed any woman to come in. a woman could come in from louisiana or tennessee. women from all over the country flooded into new york to get abortions in the 1970's. that is a better known study. you might look at this map and think that is really strange. all of these states that have historically been pretty conservative are all pink. was there something going on? often the thing that was going on is they were reforming the law from having a strict only in the case of a life being in jeopardy of a woman to also saying if the health is in jeopardy. it was a modest expansion. don't look at that and think these are states that were suddenly mimicking new york. they were not.
they were modestly expanding their laws. now i will move closer to the reading we did for today. that was about the legal history. before we talk about abortions specifically, it is important to know, what is in the air legally leading up to roe? the legal reform begins with the legalization of birth control. the case you are probably most familiar with is griswold versus connecticut. that was in 1965. griswold basically invalidated a law that has been lurking in this class all semester. when margaret sanger was arrested for talking about birth
control and trying to open a birth control clinic, what was she found guilty of violating? century law. >> the comstock act. prof. haugeberg: absolutely. the comstock act was passed in 1873. that was still on the books until 1965. this 1873 law, the comstock act. that prohibited people from disseminating information or actual birth control. that was a crime, and people were prosecuted if they did that. it didn't matter if you were married or single. that was a crime. in 1965, the supreme court ruled that the laws that prohibited
birth control from being dispense were unconstitutional. what is important is the griswold case only legalized birth control for married women. not for unmarried women. it restricted it for unmarried women. the supreme court pointed to the 14th amendment and said although it is not explicitly stated in the 14th amendment, embedded within the 14th amendment and other places in the constitution, including the fifth amendment, is an implicit right to privacy. again, this privacy, does that word appear in the constitution? no. they are making a tricky argument. it is implied throughout the constitution that americans should have a right to privacy in certain contexts. in griswold, they said one of those context -- yes, jordan? >> were there any women on the court? prof. haugeberg: there were no women on the supreme court in 1965. the court ruled there is a right
to privacy in certain contexts. one of the times in which americans should be entitled to privacy is when they are meeting with their doctor. office, you should be able to be honest with your doctor. your doctor should be able to exercise their professional judgment. that is kind of a sacred space. the state really shouldn't intervene. again, it was like a right to privacy. in 1972, the ruling in griswold was extended to unmarried women. unmarried couples could do this in 1972. it is kind of shocking when you think about the sequence of events. 1972 is one year before roe v. wade. we are starting to see this legal history unfolding quickly just before roe v. wade. it is this concept of privacy, physicians exercising their professional judgment, that is what is holding it at
-- holding sway at this time. the most famous and controversial of all abortion cases is roe v. wade. which was decided in 1973. i have a picture of what sarah weddington, the lead attorney for roe, looked like because i wanted you to see how young she was. she was 26 years old when litigating before the supreme court. no pressure. this was her first case. it went to the supreme court. many of you probably already know this. for those of you who don't, i want to go through this. sometimes when there is a controversial case, people ask to be anonymous. they don't want the pushback.
they want to keep their privacy. in abortion cases, this is especially common. this is a controversial issue. in this case, the woman who the suit was filed on behalf of, she was unnamed. pseudonym,er a jane roe. that is why it is called roe v. wade, she is not an actual person. wade is the district attorney whose name is put on these cases. it is not mr. wade, the human being being sued, it is his role as the district attorney having to enforce the laws on the books. do you remember what state this originated out of? jordan? we are starting to see this>> t. prof. haugeberg: it is out of texas. the final case we read, what state was that out of? texas. isn't that kind of>> texas. intg that texas ends up being the hotbed of all of these cases. in this case, the woman who at
the time was anonymous, we now know her name, she came forward and openly said her name. i am not violating her privacy by saying her name was norma mccorvey. she was a young, single woman. the time was anonymous, we now she had had other unwanted pregnancies, given those babies up for adoption. she finds herself pregnant again. texas had one of the strictest laws in the nation. it was one that only allowed abortion if a woman's life was in risk. neither her life nor her health was at risk. she just didn't want to have another baby. sarah weddington and other coalitions came together and sued the state of texas, saying this is not constitutional. there is no way that most women who have unwanted pregnancies qualify under the terms of the
laws as they are written, so they filed the suit against wade and texas essentially. in this case, which is one year after eisen's death, the court ruled in favor of roe. saying the statute was unconstitutional. there is a really interesting book i recommend to you about the supreme court justice who wrote this decision. it was justice blackmun. justice harry blackmun wrote the decision. the book is called the coming -- becoming justice blackmun. it's a journalist for the "new york times," who is now a professor at yale, she wrote this book. linda greenhouse. it is about how it is that he came to write this decision. one of the things that's interesting about justice blackmun is before coming a
supreme court justice had been the lead counsel for the mayo clinic in minnesota. he was a doctor's lawyer. he was used to malpractice suits. the summer while he was trying to think through the decision, he went back to minnesota and looked at medical data about pregnancy. as i get to the decision, you will see the training at play. his long-standing interest in medicine. within that decision, he kind of mimics the language of those other two cases. he says abortion restrictions early in a pregnancy violate a constitutional right to privacy. it looks very familiar to us by now. that is what griswold sounded like to us. soundedwhat eisenstadt like. he is extending that rationale to abortion in 1973. this is where we see his medical training come in. very famously in this decision he established what was called a
trimester framework. he is explaining like when can the state intervene to regulate abortion? when is that appropriate? when is it inappropriate? he said during roughly the first trimester, one year stands for first trimester. during the early states, states cannot prohibit abortion. he argued at this point, abortion is safer than childbirth. the state does not have a compelling interest to intervene in doctors' judgments. as the pregnancy advances, the state does have more of an interest in regulating abortions according to this decision. he said, during the second trimester, states can begin to impose some laws. this is an important part of the decision. those laws have to be reasonably
related to maternal health. because the procedures become more technically complicated, it makes sense for the state to intervene and regulate more strictly those more technically complicated procedures. then, according to roe v. wade, he said in the final trimester of pregnancy, states cannot regulate or even prohibit abortion. but they must have the exemptions that have been in a lot of states. they must always have an exemption to allow a woman to have an abortion if it jeopardizes her life or her health. >> i'm just wondering how they are justifying the current regulations that have nothing to do with maternal health? physicians need
admitting privileges at hospitals? prof. haugeberg: we are now at the stage where -- jordan is asking this question, how does the proliferation of laws and regulations that seemingly don't advanced women's health, how are they on the books? that is exactly what we are going to get to. between 1973 and 1991, a lot of those laws you are talking about, even the more current laws were ruled unconstitutional. they said those laws don't really comply with this part two of the decision. it doesn't seem to advance women's health. again, a lot of state efforts to regulate abortion until the early 1990's were the states trying to enact them, but courts usually invalidated them and ruled them unconstitutional. i am sometimes reluctant to go through this in too much detail because this isn't the law anymore.
this was replaced altogether. a lot of people commonly think there is still this trimester framework. no. this hasn't been the case in quite some time. this is what you read about for today. yes? >> is this no longer how the law totally functions? in all of the current debates about abortion, how does the debate about roe v. wade play in here if it is not the current law? prof. haugeberg: that is a terrific question. why do we still have this debate among pro-choice and antiabortion activists? the basic premise still stands. the basic premise that abortion is a right to privacy is still case law. the metrics by which we
determine whether states can regulate, that is what has changed. this is what we read about today. the next major case, you can ignore this map for now. planned parenthood of southern pennsylvania versus casey. this is the case that throughout -- threw out the trimester framework. it replaced the trimester framework with the new standard that still is law. it is the benchmark for assessing whether something is constitutional. that is the undue burden standard. trimester framework was replaced burden. undue i have written out how the justices defined what the majority of the decision, they said the purpose of the law, the
purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability. how did we get here? in the early 1990's, the pennsylvania legislature passed a law that was called the abortion control act. in the early 1990's, pennsylvania's legislature passed the abortion control act. embedded within this act were a host of regulations. they said women had to wait 24 hours before getting an abortion. they would see a provider but had to go home for 24 hours before they could come back and get the procedure.
the 24 hour requirement. women were required to get an informed consent booklet. it itemizes the health risks of an abortion. minor children had to receive written consent from at least one parent. these are called parental notification laws. minor children had to receive a written consent from at least one parent. according to this act, married women who wanted abortion had to notify their spouse. it is called a spousal notification law. these were some of the things that were in this act. it got litigated. when interesting is that this case was handed down, no one knew what to make of it. pro-choice didn't know whether to be happy by it, antiabortion people didn't know whether they should be celebrating.
it was a really complicated and confusing decision. one of the reasons it was so complicated was they started out by saying we want to assure you roe v. wade is still the law of the land. we still believe abortion is a right to privacy. implicit in the 14th amendment. at that news pro-choice people are happy and antiabortion people were distressed. then, they said the trimester framework, we will undo that. we will replace it with the undue burden. as we look at these undue laws -- diffrent laws that were part of this pennsylvania abortion control act, here's what we think is an undue burden. they say the 24 hour waiting period is not an undue burden. minors needing written consent is not an undue burden.
the only one they said was an undue burden was the spousal notification requirement. that is an undue burden. that fails to pass this new test. they said a woman could be married to a man who -- could be in a domestically violent relationship. and she could be subject to abuse if she is required to tell him she is having an abortion. almost immediately after reading this decision, a lot of pro-choice people read that and said isn't it just as probable that a minor girl could be in a domestically violent family situation and the court didn't intervene? it didn't apply that logic to minors that it applied to adult women in married relationships. to get back to jordan's question, this is when we see the proliferation of all of these laws and regulations.
between 1992 and 2016, almost no regulations were deemed to be undue burdens. this is why we see this proliferation of regulations. this is a map that only shows the parental notification requirements in every state. i know it is tough to see in the back. i will decode the map for you. the dark purple, louisiana, those are laws that have parental consent in effect. the yellow states, like florida, georgia, west virginia, and a bunch of the midwest have parental notification. you have to inform your parent, not get permission.
green states like texas and oklahoma have laws requiring consent and notification. there are places where it is not being enforced. new mexico and california technically have these laws, but they are not being litigated. that means doctors are going ahead and performing abortions without getting the notification. there are only a handful of states up in the northeast and in washington and oregon that do not have parental involvement laws. as of right now, these are constitutional. this is all legal. yes? >> do we see a change in the statistics of who is getting legal abortions than we did previous? prof. haugeberg: one thing that is interesting -- she is asking about abortions. one thing that is interesting is the abortion rate has declined
pretty significantly in the past five or six years. there were a lot of theories like what is happening, is there better sex education? is the economy doing better? public health researchers, do we have any public health majors? thank goodness for you. you help give us facts that we need to understand this. public health researchers helped us to figure out that more people than ever have access to birth control, largely because of the affordable care act. more people have insurance. according to the affordable care act, birth control is one of the things that is free. public health researchers have identified that because that is now free, a record number of women are taking it. medical history, one thing that is happening is iud's are more popular than they have ever been. they are like 99.9% effective. more women are using more effective birth control.
the demand for abortion has been declining significantly. yeah. now, as was the case in the early 1970's, women from all ranges of life are still the demographic seeking abortions. a lot of women already have children, and the majority want to have more children. a majority identify as having a religion. one thing we have seen historically, this is the case with birth control and abortion, women across religions are equally as likely to want either birth control or abortions. catholic women have sought birth control in equivalent numbers to protestant women and jewish women. the social history doesn't always match some of the debates we have at the higher level.
the last case we read about today is hellerstead. there are a lot of cases in between. we skipped through a lot of cases. this is the third most significant one in our lifetime. a case that originated out of texas. what do you remember from our reading about this case? what was being litigated or challenged? >> was it access to hospitals for admitting privileges? prof. haugeberg: you are right on the cusp of it. yes? >> the physicians had to be within some amount of miles from the hospital. what and i saidy way it could e with what you said come -- with what anna said with what you
said, a new law was passed in 2013 in texas called hb2. it was kind of like that pennsylvania abortion control act and it had a lot of requirements, and one of the requirements was that abortion providers had to have admitting privileges at a local hospital. >> wasn't there another thing they had to go back and modify, like make the surgical equipment more than what they needed? >> you may have a boot -- you may have observed, if you ever had oral surgery done, that doctor's office looks a little bit different than when you go to your pediatrician. which looks a little bit different from your dentist office. there are different requirements for all sorts of different medical offices. what texas tried to do is say
that abortion clinics needed to abide by the same standards that we require of ambulatory surgical centers. they needed to be able to resuscitate people, to have two gurneys in case some sort of surgical mishap happened. but again, the types of abortions were not surgical. there was no surgery happening at these places. it is very expensive to retrofit the clinic to meet these new standards. >> is this the same one that required abortion providers to tell the patients that abortion has a much higher risk of breast cancer? prof. haugeberg: that is the informed consent law. that is not what was being challenged. that is still commonplace in many states, including louisiana. those types of brochures are still given out.
what was notable about this case is that the people challenging hb2 said this is an undue burden. they were not hopeful when they went to the supreme court, because the supreme court has, since the early 1990's, been reluctant to identify anything as an undue burden. in this case, supreme court came back and said, hb2, many sections of this are an undue burden. they are almost no -- they are all -- there are almost no physicians at this clinic who have been granted sitting privileges, because hospitals don't have to that. didn't have to give you admitting privileges. the way admitting privileges work, you have to perform a certain number of surgeries in order for them to want to give you admitting privileges. because abortions are so safe, these doctors never have any reason to go to the hospital to perform surgery. they had almost no relationship
with these hospitals. understandably, these hospitals to not want to get them admitting privileges. the supreme court saw this and said, these laws don't make sense. this is not the way medicine is occurring on the ground. the thing about this case that it applied only to texas, that is why there are similar laws to hb2 on the books in other states. and why they are still constitutional. because the scope of that decision only applied to texas. >> i have a quick question regarding the state of alabama and how alabama had a midterm election and fought to recognize the sanctity of unborn life. what do we see happening with that in roe v. wade? as an alabama resident, i got to vote on that. prof. haugeberg: this is something that would be an interesting question to talk about in your political science class because this is unraveling
in ways that are really complicated. in some states -- for example, in the most recent election, a lot of states that had been pretty conservative have turned to be more pro-choice and progressive. nationally, the federal bench is becoming much more conservative, and the supreme court is becoming more conservative. it leaves pro-choice and antiabortion activists at an impasse. at a lower level, one side might be successful, but as it gets kicked up, the other side is at an advantage. this is a really tricky time, legally. >> should -- if roe v. wade is overturned at some point, does that invalidate -- does that overturning also get rid of the undue burden -- the later cases? prof. haugeberg: if roe v. wade were to be overturned, suddenly, none of that matters anymore.
cases like planned parenthood v. kc -- casey would be invalidated by that. good question. >> this is more of a comments, but i was thinking when we were talking, it has now become a moral issue over when you find out that you are pregnant, that your baby will be born with mental or physical disabilities. it has become a moral issue of, what do you do? it is like, if that is so horrible, abort your baby because it is not going to be healthy, but also, it is hard to raise a disabled child. i was just think about how it is legal, it is a moral question. prof. haugeberg: amanda is pointing out a very interesting ethical question. in the 1960's, it would not have been considered ethically controversial to say my child is going to be born with a profound disability, i would like an abortion. that would not have been that controversial of a statement.
it has been a disability rights -- there has been a disability rights movement in the interim and suddenly, that has become a very tricky position to defend. some people say that abortion and talking about it is almost a test plot for talking about a range of issues that almost have nothing to do with abortion. this issue of disability is among the issues that creeps up. absolutely. >> all of my life, abortion has been about morals and religion. it has never been a health issue. it is more morals and religion. when did it make that shift from being about -- from the way it used to be viewed? when did that transfer happen? prof. haugeberg: when did it become such a partisan, controversial issue? there are a few different moments. one is that it became a public issue that was talked about in newspapers in the mid 19th
century. doctors really made it front-page news. one thing that is kind of interesting is that when we go back and look at the historical record, when newspapers were getting off the ground, trying to sell a lot of issues, they were very tabloid like. do exposes of, like a famous guy who had an affair, or an explosive divorce. one thing that newspapers started publishing was very well-to-do women trying to get abortions. it would sell a lot of newspapers. it was fascinating. it was morally shaming. some of the taboos about abortion really took off in the mid-19th century. as far as where he are in politics today and the way that that is one of the first questions asked of politicians, that became commonplace in the late 1970's and early 1980's. that is when we see that shift.
>> if roe v. wade is overturned, it would go to states. we talked a lot about how other issues of race and gender face -- gender-based discrimination paradesst and sexist like champions of states rights. is that going on here? prof. haugeberg: julia asked, will this ultimately become a states rights issue? a lot of people think it will. you're absolutely right. if roe v. wade is overturned, individual states are still at liberty to legalize or ban abortion as they like. the speculation is that abortion will be available in states that have been supportive of abortion rights, like texas -- i'm sorry, not texas, new york. but in states like here in louisiana, it probably would be prohibited, just because our state legislature has been
pretty opposed to abortion. it would probably be piecemeal across the nation. [indiscernible] prof. haugeberg: after roe v. wade, it basically invalidated every state that had a criminal prohibition, like a lot of states, on abortion. in response, what a lot of legislators did is, immediately after 1973, they passed laws saying if roe v. wade is ever overturned, this is a go. we have already got it on the books. this criminal abortion law takes effect once again. louisiana is among several states that have that provision on the books. they are ready to go. >> historically, has there ever been a law regarding controlling men's bodies? prof. haugeberg: have there been
comparable laws regulating men's reproductive health? no. [laughter] that is an easy one. no. >> roe is about the inferred right to privacy. if that was overturned, would that affect hipaa or things that don't affect abortion? prof. haugeberg: would that affect other laws in which privacy is part and parcel? you know that when you go and talk to your attorney that you have attorney-client privilege. no, those other laws would not be affected. this is specific to abortion. the right -- our general right to privacy in life is not contingent upon the abortion law. it is just with regard to abortion. >> is that abortion or
birth-control, or just birth-control -- or just abortion? prof. haugeberg: the question is, would roe v. wade also invalidate griswold? the answer is no, but this is where a political scientist can be helpful. many of the same legislators who seek to criminalize abortion are opposed to, for example, the inclusion of birth control in the affordable care act, like there is a correlation. >> if i remember correctly, there were only three abortion clinics in louisiana. why does that not place an undue burden on people seeking abortions who have to travel hours to get one? prof. haugeberg: that is an interesting question. some states like mississippi only have one provider. why is that not an undue burden? the right to abortion, as it was written, was not a guarantee that you can get an abortion. the state has no affirmative responsibility to help a person
pay for one, has no affirmative responsibility to ensure that a doctor is providing them in your state. you don't have an affirmative right to abortion. there is nothing the state is compelled to do to enable you to exercise that right. most famously, in 1976, congress passed the hyde amendment, and that prohibits federal dollars from being used to pay for abortion. that is why a person is receiving federal medicaid dollars, that money cannot be applied to an abortion. planned parenthood, because they sometimes receive federal grants, they are required by federal law to have two different account books. any money they get from the federal government goes into one, and that can be used for cervical cancer screenings, mammography, routine health exams, but any money they use to
pay for abortion comes out of a separate account. those are private donations. if you donate money to planned parenthood, that goes in the separate account that is not filled with taxpayer money. that is by federal law. any other questions? all right, very good. good to see you. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2019] >> listen to lectures in history on the go by screen -- by streaming anytime. you are watching american history tv on c-span3. >> you are watching american history tv, 48 hours of programming on american history every weekend on c-span3.
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