Document Type

Article

Publication Date

Summer 2011

Publication Title

St. Louis University Law Journal

Publication Title (Abbreviation)

St. Louis. U. L.J.

Volume

55

Issue

4

First Page

1379

Last Page

1403

Abstract

When did we leave the era of headline abortion trials behind us? Conventional historical accounts suggest that high-profile criminal trials were a defining feature of the legal and political landscape before Roe. Although relatively infrequent before Roe, blockbuster trials had tremendous symbolic importance, offering evidence of when abortion would be publicly denounced rather than privately tolerated. Notorious abortion trials fell into several different categories: soap operas involving complex social entanglements and prosecutions of practitioners who were celebrities in their own right.

Roe v. Wade is thought to have put an end to the era of the high-profile abortion trial. In announcing a constitutional right to abortion, Roe is seen to have decriminalized abortion, setting in motion a new debate about how, when, and why abortion could be restricted.

However, the conventional historical account of the role of criminal trials in abortion law is fundamentally incomplete. Roe did not end the era of blockbuster criminal trials, but the decision changed what was at stake in them. Centrally, in the 1974-1975 trial of Dr. Kenneth Edelin, a Boston physician convicted of manslaughter after performing an abortion, advocacy groups, politicians, and the press debated what Roe would actually mean in practice. As the Edelin trial showed, blockbuster criminal trials no longer served to illustrate when abortion was a crime but instead highlighted what protections abortion rights provided and to whom they belonged.

There is a good deal at stake in understanding the history of Edelin and other headline abortion trials after Roe. Conventional histories cite Roe’s decriminalization of abortion in highlighting the Supreme Court’s power and relevance in the abortion debate. In particular, by focusing on decriminalization, critics of the opinion attack the Roe Court’s arrogance, overreaching, or political obtuseness.

However, as the history of the Edelin trial suggests, the decriminalization of most abortions and the definition of abortion rights were not accomplished by court edict. The decriminalization of routine abortions occurred only after debate and negotiation between advocacy groups. Organizations on both sides of the issue participated in and publicized the Edelin trial. Because of the media attention it attracted, Edelin promised to be a platform for organizations wishing to promote their own understandings of Roe, arguments about abortion, and characterizations of those on the other side of the issue. But Edelin proved that the headline trial could be a double-edged sword for advocacy groups. Neither proponents nor opponents of Roe could control how the media presented Edelin or how the public understood it. Because of this, groups like the Planned Parenthood Federation of America (PPFA), the American Civil Liberties Union (ACLU), and the National Right to Life Committee (NRLC) became disenchanted with Edelin and trials like it.

These groups had to lose interest in headline trials like Edelin before they became a thing of the past. Understanding the history of the Edelin trial shows that concern about Roe’s overreaching may be overstated. If the story of Roe is a cautionary tale, that story is not primarily one about the dangers of judicial power.

The Article proceeds in three parts. Part I examines the conventional historical account of Roe’s role in eliminating criminal abortion trials. Part II uses the prominent Edelin trial to challenge this account. This section shows that, after Roe, criminal abortion trials no longer focused on when abortion prohibitions would be enforced but instead on what abortion rights would mean. Part III briefly concludes.

Rights

© 2011 Mary Ziegler

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First published in St. Louis University Law Review.

Faculty Biography

http://www.law.fsu.edu/our-faculty/profiles/ziegler

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