Reproductive rights are a moving target. No matter what decisions are made by the courts, Congress, or state legislators, birth control and reproductive rights are at the nexus of public policy, individual privacy, health-care regulations, ethical arguments, religious beliefs, and morality. As individual and societal interpretations of and positions on all of those elements shift with time, so will the laws, guidelines, rules, and social “acceptability” of a spectrum of options available to women, and more recently, men, regarding their rights and obligations, their desire and ability to bear children — or not — in the ways they want.
Thirty-five years ago, in 1971, the US Supreme Court issued its first-ever ruling on the subject of abortion, upholding a District of Columbia law allowing an abortion to protect the life or health of the mother. The court’s ruling in the case, United States v. Vuitch, held not only that abortions were legal, but that the word “health” in the law “includes psychological as well as physical well-being,” effectively opening a door to any woman who wanted to have an abortion.
But the fact that most states outlawed abortion except in cases where the mother’s life was at risk — even if her health would have been damaged in some way, so long as she survived — made the Vuitch decision a key component in the Roe v. Wade arguments and decisions. The ruling, handed down just eight months before the December 1971 first round of oral arguments for Roe, was the subject of much discussion between the attorneys and the justices, and figured prominently in both rounds of oral arguments for Roe (the second held in October 1972). (Vuitch was, in fact, the subject of the first question from the bench in the second round, according to official transcripts of the event.) And the Vuitch ruling draws together the legal framework for arguing that a fetus is not a “person,” as intended in the Fourteenth Amendment, which prohibits depriving a person of “life, liberty, or property without due process of law.”
That argument was later expanded upon in the Roe decision, in which the Court noted that all of the references to “person” in the Constitution are to people who have been born already — not to the unborn.
At this very moment in the decision, however, just as the fetus-as-non-person argument was hitting its stride, its one weakness is also revealed: if a fetus were somehow to be included in the legal definition of “person,” its right to life would be guaranteed by the Fourteenth Amendment.
Until Roe, however, women had to travel from one state to another to find places to procure abortions legally. Now, with the confirmations of Chief Justice John Roberts Jr. and Associate Justice Samuel Alito widely expected to result in a reversal of Roe, and with Planned Parenthood conducting a “Save Roe” campaign and the National Pro-Life Alliance sending mailers around the nation seeking donations to “reverse Roe v. Wade,” women are seeking secure ways to exercise control over their bodies, their lives, and their futures.
