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For nearly 50 years, abortion has been a constitutional right in the United States, as long as the fetus is not viable, not able to survive outside the womb. But later this week, the U.S. Supreme Court hears arguments in a Mississippi case that directly challenges Roe v. Wade and subsequent decisions. With abortion rights in jeopardy, NPR legal affairs correspondent Nina Totenberg takes a look at how and why Roe v. Wade came to be.
NINA TOTENBERG, BYLINE: Abortion did not become illegal in most states until the mid-to-late 1800s. But by the 1960s, abortion was, like childbirth, a very safe procedure if performed by a doctor. Women were entering the workforce in larger numbers, but being pregnant out of wedlock was still seen as scandalous and shameful. As a result, illegal abortion was becoming a public health problem. The estimated number of illegal abortions each year ranged from 200,000 to over a million, a range so wide precisely because the procedure was illegal and often undocumented. George Frampton clerked for Justice Harry Blackmun, the author of Roe, the year it was argued and decided.
GEORGE FRAMPTON: Those abortions either had to be obtained under cover - if you had a sympathetic doctor, if you were wealthy enough - or more likely, illegally in back rooms by abortion quacks, crude tools, no hygiene. By the early-to-mid '60s, thousands of women in large cities were coming into hospitals, bleeding, risk of their lives, often maimed.
TOTENBERG: As one woman recalled, the procedure was terrifying.
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UNIDENTIFIED PERSON #1: The best way I can describe it would be the equivalent of having a hot poker stuck up into your uterus and scraping the walls with that. It was excruciatingly painful. The attendant that was there held me down on the table.
TOTENBERG: The result, says Frampton, was that by the mid-1960s a reform movement had begun, aimed at decriminalizing abortion and treating it more like other medical procedures. Driving the movement were doctors concerned about the damage to women's health. Soon, the American Law Institute, a highly respected group of lawyers, judges and scholars, published a model abortion reform law supported by the American Medical Association, and many states began loosening abortion restrictions. Four states legalized it, and a dozen or so states adopted some form of the model law, which permitted abortion in cases of rape, incest, fetal abnormality and to save the life or health of the mother. By the early 1970s, when nearly half the states had adopted reform laws, there was a small backlash. Still, as George Frampton observes...
FRAMPTON: It wasn't a big political or ideological issue at all.
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UNIDENTIFIED PERSON #2: Mr. Chief Justice, and may it please the court.
TOTENBERG: In fact, the justices back in 1973 were mainly establishment conservative figures. Six were Republican appointees, including the court's only Catholic, and five were generally viewed as conservative, including four appointed by President Nixon. Ultimately, the court voted 7-2 that abortion is a private matter to be decided by the woman in consultation with her doctor during the first two trimesters of pregnancy.
That framework has remained in place ever since, with the court repeatedly upholding that standard and adding in 1992 that states could enact some restrictions as long as they didn't impose a, quote, "undue burden on a woman's right to abortion." Frampton says that the court established the framework because of the medical consensus then and now that a fetus could not survive outside the womb until 22 to 24 weeks.
FRAMPTON: The justices thought that this was going to dispose of the constitutional issues about abortion forever.
TOTENBERG: In the years that followed, however, the backlash grew louder and louder to the point that the Republican Party - which early on had supported Roe - in 1984 officially abandoned it. And when you look at how the Supreme Court nomination and confirmation process has been politicized, you can't help but wonder whether that would still be true without Roe. I put that question to Frampton.
FRAMPTON: Well, I'm afraid that your analysis is absolutely spot on. I think they saw it as a very important landmark constitutional decision but had no idea that it would become so politicized and so much a subject of turmoil.
TOTENBERG: Why such political controversy in the United States and not in many other countries where abortion is now legal? Mary Ziegler, author of "Abortion And The Law In America," says there are a number of reasons, among them that those countries provide easy access to abortion through national health insurance.
MARY ZIEGLER: So that it's realistic to have people be forced to seek abortions in the first, whatever, 12, 15, 18 weeks and actually be able to get the procedure done by then, whereas in the United States, there's no such health insurance.
TOTENBERG: More on all these issues Wednesday at the Supreme Court. Nina Totenberg, NPR News, Washington.
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