On Wednesday, after weeks of legal battle, Jane Doe, a 17-year-old undocumented immigrant living in a government shelter in Texas, finally underwent an abortion. She was only able to obtain the procedure after the D.C. Circuit Court of Appeals required that the government release her, ending a topsy-turvy week of back-and-forth court decisions.
According to court filings, the federal government forced Jane to get counseling from a religiously affiliated crisis pregnancy center. The center compelled her to look at a sonogram in an attempt to convince her that the fetus is a child and that her abortion would be murder. Unable to leave the shelter, Jane declared, “I feel like they are trying to coerce me to carry my pregnancy to term.” “I do not want to be forced to carry a pregnancy to term against my will.” Because Texas prohibits most abortions after 20 weeks, at 15 weeks pregnant, Jane nearly ran out of time.
The strategies antiabortion federal officials and activists in Texas employed date back nearly 45 years, to the weeks after abortion became legal. After Roe v. Wade (1973), some antiabortion activists launched a still unfulfilled quest to overturn the Supreme Court’s decision through a constitutional amendment. Others however, have found greater success by seeking to limit women’s access to abortion through state and local laws, thus eroding the national implementation of Roe.
In Boston, of all places, they learned that humanizing fetuses through fetal imagery and carefully selected language provided a powerful boost to their cause in the political arena. This antiabortion activism, in a place long considered the bastion of liberalism, ultimately created a template for how to incrementally limit abortion rights, leaving women’s rights activists scrambling to fight in the streets and in the courts over the next 40 years as Roe’s promises were hollowed out.
On Sept. 21, 1973, Alice Roe, the daughter of West Indian immigrants, went to Boston City Hospital seeking an abortion. The doctor who initially examined her noted that she was 21 to 22 weeks along and assigned her case to Dr. Kenneth Edelin, the hospital’s first African American chief resident and one of only two doctors there willing to perform abortions. After carrying out Alice’s wishes, Dr. Edelin recorded no heartbeat or sign of life in the fetus and, per protocol, sent it to the hospital’s pathology lab, where it was preserved in a bottle of formaldehyde.
Soon after, a Boston-based antiabortion activist received word from a hospital employee that there were “two big babies in bottles” at the hospital’s morgue. He persuaded the local district attorney to investigate Edelin and the hospital. The DA ordered an autopsy to see if the larger of the preserved fetuses — Alice Roe’s — had been alive when it was aborted.
The medical examiner concluded that the fetus had breathed after being removed from the uterus, leading the DA’s office to decide to prosecute Edelin for manslaughter.
When a grand jury indicted Edelin, it had an immediate and chilling effect. Boston City Hospital temporarily stopped providing abortions.
Edelin’s trial hinged on two questions: Did he abort a fetus, or murder a child? And was Edelin’s responsibility to his patient, or to her fetus? The prosecution sought to convince the jury that “baby boy Roe” had been removed from Roe’s uterus alive and died because Edelin failed to provide it with life-saving care.
In addition to the powerful testimony of antiabortion activists who repeatedly described the fetus as a baby, the prosecutor relied on a photograph to persuade jurors. He encouraged the jurors to ponder whether it was a picture of a fetus or a baby boy, thundering:
“[Edelin] tells you that he took out the fetus — the subject. Is this just a specimen! You tell us what it is. Look at the picture. Show it to anybody. What would they tell you it was? Use your common sense when you go to your jury deliberation room and humanize that.”
After a day of deliberations, the jury found Edelin guilty of manslaughter. The doctor only escaped jail time after abortion rights activists rallied to his cause and funded an appeal. In 1976, the State Supreme Court reversed his conviction, implying that Edelin should never have been indicted.
But even so, antiabortion activists saw this case as the thin edge of a wedge for limiting Roe v. Wade. Following Edelin’s trial, hospitals in a number of cities feared they would become susceptible to similar litigation.
Some preemptively placed tighter limits on the time frame during which an abortion could be performed. Others began requiring that expensive life-saving equipment be on hand during second-trimester abortions. These measures made abortion more costly and less accessible to poor women.
As historian Sara Dubow has shown, antiabortion activists took note of these self-imposed hospital restrictions and their effects. In the wake of the Edelin trial, as they confronted continued strong political support for Roe, they began to see limiting the availability of abortion as the most promising path forward.
It was not long before these activists realized that abortion access for low-income women was most susceptible to restrictive regulations. They undertook a campaign to choke off this access and achieved a major success with the passage of the Hyde Amendment in 1976, which prohibited the use of federal funding to pay for abortions.
In 1980, the Supreme Court upheld the Hyde Amendment’s constitutionality, reasoning that because Roe did not define abortion as a positive right, the government was not obligated to finance the procedure. Similar legislation enacted on the state level over the next three decades eliminated other avenues for accessing reproductive services and funds to underwrite abortion costs. Mandatory waiting periods, mandatory misleading counseling, the prohibition of certain procedures and ambulatory clinic requirements all coincided with the depletion of resources.
Those women for whom public funds were essential to give meaning to Roe soon found themselves stranded with a right in name only. At the same time, women with the means to access abortion were subject to coercive messages and invasive procedures.
Even in the wake of Whole Women’s Health v. Hellerstedt (2016), which repudiated regulations that “do little or nothing for health, but rather strew impediments to abortion,” antiabortion government officials continue to target the most susceptible segments of the population. Their goal is nothing less than preventing women from exercising their right to access medical resources.
As with the Edelin case 44 years ago, only intervention by the judiciary and grass-roots abortion rights activists has preserved a woman’s constitutional right to terminate her pregnancy.
Edelin’s trial laid the groundwork for many of the fights to come. It cemented the way antiabortion activists talked about and represented abortion to a general public. Their vocabulary — of babies rather than fetuses, and of murders rather than abortions — shaped the public’s image of what an abortion entailed and what was at stake. These activists recognized that visual images were key to humanizing the unborn and convincing people that fetuses were children. This powerful fetal imagery remains important for what it shows — human-looking fetuses — and for what it does not show: young women like Alice Roe and Jane Doe who make difficult and thoughtful choices about whether to terminate or continue a pregnancy.