The dizzying back-and-forth of abortion law

After the U.S. Supreme Court decided that abortion was no longer protected by the federal constitution, I couldn’t help but feel like we were all hanging on to a pendulum for dear life.

I started covering abortion law in 2014, as a public radio reporter in Nashville. At that time, abortion was not only legal in Tennessee (as it was — past tense — in every state), it also enjoyed additional protections under our state constitution. It was, you could say, more legal in Tennessee than in other states. Now, a near-total ban is going into effect later this month.

Halfway through this eight-year turnaround, I visited Ireland for the first time. It was early 2018, and abortion was still constitutionally prohibited. But a few months after my visit, the country legalized it for the first time. It’s now easier to get an abortion in Ireland than in Tennessee.

I find it both dizzying and fascinating to be living through these times of change. And by zooming out a bit, geographically and chronologically, the arc of the pendulum is even easier to see. Or maybe the better word is pendula, plural: Each place carves its own path back and forth, and sometimes it knocks into the other along the way.

As I prepare for my Fulbright in Ireland where I’ll be studying the media coverage of the abortion debate, I’ve been learning more about the contours of those swings. I’m sharing those with you so you can follow along with me in my research, which starts in a few weeks. And yes, this post is long, but the abortion debate is even longer, y’all. I’ve condensed it down as much as possible. You’re welcome.

Disclaimer: I am not a fancy legal scholar! I’m merely dipping my toe into the murky waters of abortion law history. If you see something factually inaccurate, please respond in the comments. Thanks!

1983: The Eighth Amendment

In the early 1980s, Ireland was about as Catholic and anti-abortion a country as they come. According to the narrative history We Don’t Know Ourselves — written by journalist Fintan O’Toole, whose name begs to be said aloud with an Irish accent — “there was very little public tolerance for abortion. On a scale of one (never justified) to ten (always justified), abortion ranked at 1.7 for Irish people.” Still, anti-abortion activists decided to propose a constitutional amendment that would explicitly give the “unborn” an “equal right to life” as the person carrying it.

Why would they go through the trouble, when abortion was already illegal in Ireland? In a word: America. A decade earlier, the U.S. Supreme Court had decided in Roe v. Wade that our constitution protected abortion rights. Irish pro-life activists worried that one day, in a less conservative future, the Irish courts might decide the same. “This was one way,” O’Toole writes of the activists’ motivations, “in which Ireland must not be allowed to become Americanized.”

In other words, the progressive swing of America’s pendulum knocked Ireland’s in the other direction. The Eighth Amendment referendum passed in 1983 with two-thirds approval.

1992: The X case

The total abortion ban was in place until the early ’90s, when a 42-year-old man raped and impregnated a 14-year-old girl in Dublin. The girl and her parents traveled to England for an abortion, which wasn’t in itself unusual. But they also asked the police if they could use DNA from the aborted fetus to prosecute the rapist. The police didn’t know what to do with this question. Eventually the attorney general of Ireland was alerted and, alarmed, asked the courts to issue an interim injunction, which instructed the girl to come home before the abortion happened.

The girl’s parents, O’Toole writes, were not pro-abortion, and once her father was informed about the injunction, “he decided to cancel the abortion and return. Asked why he had done this, he replied: ‘I am a law-abiding citizen.’ ” But the attorney general’s and father’s decisions to abide by the law, paradoxically, forced the country to confront the moral messiness of a total ban. Would Ireland really force a 14-year-old girl to stay inside its borders and bear her rapist’s child — especially because, as the girl’s psychologist testified to the High Court — there was a danger she might kill herself?

It was on those grounds that the High Court granted a small loophole the Eighth Amendment: Abortions could be allowed if there was a risk of suicide. The pendulum began, ever so slightly, to oscillate back.

2000: Planned Parenthood v. Sundquist

Across the pond in the U.S., abortion was legal this whole time under Roe. But it wasn’t so simple on this side either.

State lawmakers across the country were testing out pages of restrictions that abortion rights advocates found onerous: Waiting period. Informed consent rules. Specifications of where the procedures can and can’t be done. Over the next two decades, the U.S. Supreme Court decided these kinds of restrictions weren’t constitutional (Akron v. Akron Center For Reproductive Health, 1982), and then decided that they were (Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992).

The ACLU of Tennessee, alarmed by Casey, saw an opening to add more protections using the Tennessee constitution instead of the federal one. They knew the state Supreme Court was friendly to their ideas about procreation falling under the statute of privacy. “The ACLU approached Planned Parenthood and talked to their board about [how] the time is right,” the ACLU’s director, Hedy Weinberg, told me my first year in Nashville. They filed the suit on behalf of Planned Parenthood, and in September 2000, the state Supreme Court sided with them. Tennessee could now only pass very narrow restrictions on abortions, narrower than the rest of the country.

But in that victory for abortion rights, there was a foreshadowing of what was to come. One dissenting justice wrote in that decision, “The effect of the Court’s holding today is to remove from the people all power, except by constitutional amendment, to enact reasonable regulations of abortion.” That phrase — “except by constitutional amendment” — became a rallying cry for Tennessee conservatives.

2012: The death of Savita Halappanavar

In the fall of 2012, a woman in Galway went to the hospital complaining of back pain. She was 31, a dentist, and 17 weeks pregnant. She was having a miscarriage, doctors told her, but they couldn’t administer a medical termination to end the pregnancy because the fetus still had a heartbeat. It would have effectively been an abortion.

The heartbeat eventually stopped, but she died a few days later from sepsis. News of her death spurred widespread protests and calls for governmental reform.

By this point, Ireland had become not quite so Catholic, not quite so conservative. Culturally, it was close to what anti-abortion activists feared would happen back in the 1980s. It’s unclear to me if Savita Halappanavar’s death provoked a real sea change or just provoked latent anger that had been building for years; either way, it accelerated the swing of the pendulum.

2014: Amendment 1

Meanwhile, back at the ranch in Tennessee, conservative lawmakers knew what they had to do. They followed the dissenting justice’s advice from 2000 and introduced a state constitutional amendment.

This was the first major story I covered after moving to Tennessee in 2014, and probably the first time I was aware of the backlash that was boiling up against abortion rights. In Nashville, most people I knew were pro-choice, almost de facto, but no one really talked about this proposed anti-abortion amendment. But when I drove out to rural Tennessee, like Cookeville and Crossville, I saw sign after sign for “Yes on 1.” Huh, I thought. People really seem to care about this.

It passed by a fairly slim margin — 53% to 47%. But as Irish voters will tell you, even constitutional amendments don’t last forever.

2018: Repeal the 8th

This was evidenced by what happened in 2018: Irish voters passed the Thirty-Sixth Amendment to their constitution, which replaced the entire Eighth Amendment with a single sentence: “Provision may be made by law for the regulation of termination of pregnancy.” It passed by the same margin of voters— two-to-one — that had passed the Eighth Amendment 35 years earlier.

What happened between 2012 and 2018 that compelled the Irish populace to not just peel back the Eighth Amendment but repeal it altogether? From the outside, it seemed like a mix of #MeToo and Black Lives Matter, except with a focus on reproductive rights rather than racial equality. This is what I’ll be studying as part of my Fulbright research on the media coverage of the Irish abortion debate.

2022: Dobbs

Hello, 2022. Here we are.

America’s constitution no longer protects abortion (and never should have, according to the prevailing justices on the Supreme Court), and anti-abortion lawmakers are taking advantage of this moment with a vengeance. A few days after I leave for Ireland, abortion will be effectively outlawed in the state of Tennessee — no exceptions for rape or the risk of suicide, just like Ireland before 1992.

I’m left with more questions than answers. Is this a harbinger of a long arc toward conservatism, or just an inevitable swing of the pendulum? As soon as one side wins, does everyone else start to simmer in their discontent?

And is it possible — I ask cautiously — to ever reach a point of equilibrium?

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