Although I’ve heard every argument about abortion, pro and con, over the years, the anti-abortion case made by three Republican-led states in a recent Federal District Court filing stopped me in my tracks.
The attorneys general of Idaho, Kansas and Missouri, seeking to establish the states’ standing to challenge the federal government’s liberalized rules for medication abortion, claim that expanded access to the abortion pills is “causing a loss in potential population or potential population increase,” and that “decreased births” were inflicting “a sovereign injury to the state itself.” This remarkable assertion comes on Page 189 of the states’ 199-page complaint, as astonishing a legal document as I have ever read.
Beyond this bold pronatalist argument, there is much to say about the states’ complaint, which seeks to reignite a lawsuit against the U.S. Food and Drug Administration that the Supreme Court unanimously threw out five months ago. The suit’s primary challenge is to the F.D.A.’s repeal of the requirement for in-person dispensing of mifepristone, one component of medication abortion’s two-pill regimen, in a clinic, medical office or hospital, by or under the supervision of a doctor. This has enabled women to terminate their pregnancies at home after receiving the pills in the mail.
The states’ complaint is larded with provocative and irrelevant photographs: someone carrying shopping bags said to contain abortion pills; a pile of empty pill vials; a picture of an embryo, in reality not more than an inch long, blown up to huge baby-like proportions. The states claim that the F.D.A.’s actions have caused “immeasurable pain and suffering” and has harmed “many women,” assertions refuted by the facts on the ground. Serious complications have been rare with the two-pill regime of mifepristone and misoprostol, which now accounts for nearly two-thirds of abortions.
The F.D.A. was initially sued by a group of anti-abortion organizations and doctors who did not perform abortions themselves but who claimed “conscience injury” from the widespread availability of the medication. That claim failed the Supreme Court’s strict test for standing, which requires an actual injury — “injury in fact” is the operative phrase — suffered by a plaintiff and redressable by a court. So the three states are now trying to show that unlike the doctors, they do have a concrete injury, an injury to their sovereignty by the F.D.A.’s enabling of a “50-state mail-order abortion drug economy” that permits women, with ease, to have fewer babies.
My surprise at the pronatalist argument against abortion is not because I haven’t heard it before. To the contrary, it is because I have. While I never expected to see it emerge in a legal document in 2024, the argument is inextricably linked to the history of abortion in the United States.
As the historian James Mohr documented in his authoritative book, “Abortion in America: The Origins and Evolution of National Policy,” abortion was common, and broadly legal, in the early decades of the 19th century. It was so common, in fact, that it contributed to dropping birthrates. More to the point, evidence began to accumulate that abortions were being obtained in growing numbers not merely by young single women “in trouble” but by respectable married women. With immigration rising, the failure of the white, Protestant middle class to reproduce itself in sufficient numbers was becoming in some quarters an urgent concern.
While abortion was not the sole reason for the shrinking birthrate, and population worries were not the only driver of abortion’s criminalization, it’s clear that controlling women’s behavior, rather than concern for fetal life, was the primary impetus for the anti-abortion movement began to sweep the country. The question of how to keep women from terminating their pregnancies had a convenient answer: outlaw abortion. By the early 1900s, abortion was illegal in every state.
One would search in vain for this history in Justice Samuel Alito’s lengthy majority opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 decision that erased the constitutional right to abortion. In that religious tract disguised as a judicial opinion, the fetus is the star. And so it may not come naturally to see the link between the current pro-natal discourse — whether Vice President-elect JD Vance’s crack about childless cat ladies or Elon Musk’s fixation on a coming population collapse — and the stranglehold that anti-abortion politics maintains on American civic life. The great replacement theory, a conspiracy theory often espoused by Christian nationalists that sees the country being overrun by Jews and nonwhite immigrants, has a claim on some of the same real estate.
In her book “When Abortion Was a Crime,” the historian Leslie Reagan recounts that abortion was quite common during the Depression. Doctors were increasingly willing to help their financially stressed patients navigate the few exceptions to state abortion bans, and law enforcement often looked the other way. But in the 1940s, this semiofficial toleration yielded to a “push for maternity and domesticity.” The Ladies’ Home Journal urged its readers to “correct the mistakes of the 1920s and ’30s” by having babies. Law enforcement became more aggressive. Doctors’ offices were raided and women were arrested, forced to testify against abortion providers on pain of contempt. Highly publicized prosecutions helped spur calls for reform of the old laws.
The point is that although we often think about abortion as a free-standing issue, it is deeply embedded in society’s expectations about sex and reproduction and their consequences.
In the 1960s and early 1970s, the concern was about overpopulation and the prospect of a world unable to feed itself, a fear that helped to propel the early stirrings of abortion reform. In 1969, declaring that “one of the most serious challenges to human destiny in the last third of this century will be the growth of the population,” President Richard Nixon called for a panel under the direction of John D. Rockefeller III to study the issue and make recommendations. Nearly three years later, the Rockefeller Commission, as it was known, recommended expanding access to contraception and decriminalizing abortion. Nixon, in the midst of his 1972 re-election campaign, accepted the report warily and declared his opposition to legalizing abortion. (The Yale law professor Reva Siegel and I tell this fascinating, largely forgotten story in “Before Roe v. Wade,” a sourcebook available as a free download.)
So now we find ourselves in a new pronatalist moment when the top lawyers of three states feel free to call openly on the federal courts for help in making women have more babies. The judge they have chosen, Matthew Kacsmaryk of the Northern District of Texas, is one of the most openly anti-abortion judges on the bench. He may well grant their wish and send them into the welcoming arms of the U.S. Court of Appeals for the Fifth Circuit, where several judges appointed by Donald Trump are busy running for the Supreme Court. As for the Supreme Court itself, the justices might want to keep in mind Karl Marx’s dictum that history repeats itself, the first time as tragedy and the second time as farce.
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