Wednesday, December 26, 2012

Interpreting Roe in the Abortion Clinic

Just as opposing activists reinterpreted Roe’s holding, abortion providers in the 1970s had to interpret an increasingly complex body of law. At clinics like Reproductive Health Services in St. Louis, a number of different stakeholders had to interpret both constitutional and statutory rules governing abortion. Attorneys representing the clinic worked primarily to guarantee that the clinic did not obviously run afoul of any valid law and to challenge any questionable law in court. Providers themselves had different goals in interpreting these laws. Those like Judith Widdicombe, the founder of Reproductive Health Services and a NARAL leader, wanted to convey to women what they could demand of the medical and legal establishment. Providers at Reproductive Health Services also interpreted abortion law with the intention of building political support for their practice. Patients received an explanation of what abortion rights ought to be, suggesting that the Constitution did not impose any meaningful limits on reproductive autonomy. The clinic also provided information about how to become involved in the movement to defend those rights. Finally, patients often had to make their own decisions about the legality and morality of their own decisions. The archived papers from Reproductive Health Services make clear that women often asked about the laws governing their decisions, folding questions of legality into an already complex moral decision.

As the experience of Reproductive Health Services in the 1970s suggests, lay people as well as lawyers forged the meaning of abortion laws outside the courtroom. Often, in the clinic, different stakeholders interpreted abortion laws in varying ways for different purposes. Attorneys representing the clinic exhibited consistent cautiousness, hewing closely to the courts’ articulations of abortion law. Providers, by contrast, were deeply skeptical about the courts and the rights they protected. For Widdicombe, Roe and its progeny served as symbols available to patients seeking reassurance, empowerment, or a reason to become politically active. For this reason, providers tended to stray quite far from what the Court had said, reinterpreting Roe and subsequent decisions to reflect rights that providers believed the Constitution ought to protect irrespective of what the Court said. In practice, providers often served as the primary interpreters of constitutional law in the clinic, informing staff, trainees, and patients about what the Constitution means. Something similar appears to have been true of the Birthright Clinic in St. Louis, founded in 1971.

Abortion providers, crisis-pregnancy counselors, attorneys, and patients helped to determine the  abortion law outside the courts. Certainly, formal law shaped these exchanges, as some form of judicial intervention always remained a possibility. Just the same,  in the 1970s, the clinics themselves created a substantial and largely understudied body of abortion law.