Do women need abortion to succeed? Women legal scholars say no

Washington, D.C. Newsroom, Oct 4, 2021 / 00:00 am

Women need abortion to succeed, according to a recent U.S. Supreme Court brief filed by more than 500 female athletes. But not all women agree. In another brief for the same case, hundreds of professional women present a different argument: Abortion harms women. 

Law professors Teresa Collett and Helen Alvaré and legal scholar Erika Bachiochi filed an amicus brief representing 240 women scholars and professionals and various pro-life organizations in Dobbs v. Jackson Women’s Health Organization, which the Supreme Court will hear on Dec. 1. The case challenges Roe v. Wade, the 1973 case that legalized abortion nationwide, and Planned Parenthood v. Casey, which upheld Roe in 1992.

In their brief, these women point to evidence that counters the narrative that women need abortion to succeed and acheive equality with men. More specifically, the brief takes issue with Casey’s argument that the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

This belief is widespread today. In the athletes’ brief, three-time Olympic swimming medalist Crissy Perham shares her story about undergoing an abortion prior to an important race early in her college career.

“I was on scholarship, I was just starting to succeed in my sport, and I didn’t want to take a year off,” she relates. 

“I wasn’t ready to be a mom, and having an abortion felt like I was given a second chance at life,” she continues. “That choice ultimately led me to being an Olympian, a college graduate, and a proud mother today.”

In their brief, the women legal scholars cite data and research they say refutes the idea that abortion is both responsible and critical for women’s progress in society. Among their arguments:

1. Women were making progress before Roe.

Women's progress and advancement began well before Roe, rather than because of Roe, the scholars argue.

As evidence, they point to Jeannette Rankin, the first woman elected to Congress. A Republican from Montana, Rankin was elected in 1916, four years before the Nineteenth Amendment secured women the right to vote. Following the amendment, a “number of women entered political office at the highest levels,” who became senators, congresswomen, and governors, the brief states. 

Women also enjoyed protections in the law before Roe. These included the Fair Labor Standards Act of 1938, which established a minimum wage regardless of sex. The Supreme Court, in the 1947 case Fay v. New York, also appreciated that women are equally qualified to serve on juries. 

The brief presents a long list of federal legislation in the 1960s and early ’70s, prior to Roe, that promoted women’s equality. These include: the Equal Pay Act of 1963, which prohibited sex-based wage discrimination; the Civil Rights Act of 1964, which prohibited sex discrimination in employment, education, or public accommodations; the Fair Housing Act of 1968, which prohibited sex-based housing discrimination; the Public Works and Economic Development Act of 1971, which prohibited sex discrimination in federally funded programs or activities, and the Equal Employment Act of 1972, which called for equal access to jobs for those with similar qualifications.

The brief also references a number of state constitutional provisions, statutes, and cases protecting women against discrimination that went into effect around the same time.

It “is impossible to claim that abortion access is specially responsible for the progress that American women have made in any of the above arenas,” the brief states, “as compared with the massive array of statutes and cases described above and women’s vigorous pursuit of the opportunities they provide.”

2. There is no consistent correlation between abortion and women’s socioeconomic success.

The women scholars acknowledge that women made progress immediately after Roe, as abortion rates and ratios rose. But, they emphasize, this progress began decades before Roe and “continued when abortion rates and ratios were falling at a dramatic pace.” 

Between 1990 and 2016, the scholars say, abortion rates declined 46% and abortion ratios fell 52%. But women’s progress didn’t slow down. Instead, it continued to accelerate.

The “percentage of women in the workforce with a college degree or more rose from 24.5% to 41.6%,” the brief states. Women also earned an increasing percentage of men’s income: 15.5%.

Women-owned businesses also skyrocketed. According to the Census Bureau’s economic census, 5.4 million women-owned businesses existed in 1997. Twenty years later, in 2017, women owned 11.1 million businesses, according to the National Association of Women Business Owners.

In higher education, women’s participation grew. Their college enrollment climbed nearly 4%. At the same time, women’s law school enrollment increased from 47.4% in 1990 to 52% in 2016, and the number of women in medical schools rose from 39.2% in 1990 to 49.8% in 2016. 

Women also continued to succeed in government. Women in state government increased by 41%. At the federal level, women’s representation increased 248%. On the federal bench, women’s participation increased 380%. In the video clip below, Erika Bachiochi, one of the women legal scholars who co-authored the Dobbs brief, explains how abortion came to be associated with the feminist movement.

3. The evidence shows abortion disadvantages women.

The women scholars argue that “relatively easy access to abortion has changed society in several ways disadvantageous to women.” 

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Citing Phillip Levine, a Wellesley College economics professor and research associate in the National Bureau of Economic Research, the women scholars write that “easy access to abortion tends to change sexual behavior in favor of greater sexual risk-taking, which disincentivizes contraceptive use and leads to more uncommitted sexual relations.” 

This behavior disproportionately impacts women, the scholars maintain. Abortion, in particular, severs “sex from any idea of a joint future” and establishes “nonmarital sex as the price of a romantic relationship, even as women continue to report that this new sex ethic is undesirable to them, and that many are having fewer children than they would like.” 

A 2018 analysis of fertility data by economist Lyman Stone published in the New York Times, lends support to their argument. Stone observed that "the gap between the number of children that women say they want to have (2.7) and the number of children they will probably actually have (1.8) has risen to the highest level in 40 years."

Because abortion enables the idea that children are a woman’s “choice,” children are viewed as being a woman’s responsibility, the brief states. With this in mind, the scholars warn, the “connection between sex and potential fatherhood … has grown far more tenuous, contributing to the feminization of poverty we see today.” 

Research from Brookings Institution scholar Isabel Sawhill supports their findings. She found in 1999 that the “growth of single parent families can account for virtually all of the increase in child poverty since 1970.”

Abortion also gives society a facile remedy to the complex challenges women continue to face in society, the scholars argue.

“The widespread availability of abortion and ‘abortion as equality’ arguments also confirm public and private actors’ inclinations to avoid expensive accommodations for women with children in educational and work settings,” the brief states. For this reason, the scholars write, it is “unsurprising that complaints of ‘rampant’ pregnancy and caregiver discrimination persist” decades after Roe.

Investigative reports, including a 2019 New York Times story titled “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies,” back up these concerns. The report tells the stories of several women, including one former saleswoman who claimed that her boss told her that “women who find themselves in my position — single, unmarried — should consider an abortion.” 

In an interview with CNA, Helen Alvaré, a co-author of the brief, said the comment speaks volumes about the real problems women continue to face in the workplace, despite Roe.

It is a “frightening statement for women who want children, and who are already aware of employers’ low enthusiasm for their female employees’ childbearing,” Alvaré said.

“It is a ‘throwing-our-hands-up’ in despair,” she continued, “as if it is hopeless for professional women to expect help or encouragement in the difficult task of doing justice first at home and also at work.”