Thursday, March 24, 2022

Legal History of 1983 SCOTUS Decision in Akron Abortion Case May Provide Playbook for Post-Roe Legislation

My research and legal history of the US Supreme Court's decision in Akron v. Akron Center for Reproductive Health, 461 U.S. 416 (1983), on abortion regulations is featured in this deep dive feature in the Akron Beacon Journal.  Doug Livingston & Seyma Bayram, How Catholic Democrats in Akron Helped Write the Conservative Playbook to Overturn Roe, ABJ, Mar. 23, 2022. [Download article here (without photos)]

In 1978, hundreds of protesters marched in downtown Akron or outside the city's four abortion clinics in their first year of operation. The civil unrest, from threats of violence to documented arson, burned even as the Storm of the Century buried Akron in more than 3 feet of snow. 

Akron City Council moved public hearings on 16 proposed abortion restrictions to the Morley Health Center to accommodate a standing-room only crowd of 300 people, evenly split in support or opposition. A national audience followed along as the three major news channels of the day covered sweeping restrictions crafted by national anti-abortion lawyers and sponsored by Catholic Democrats on Akron City Council. 

The debate was intense. Council members shouted long after some hearings ended.

In a 7-6 vote on the last day in February, national leaders in the anti-abortion movement had found in Akron willing participants in the creation of "the playbook” to incrementally unravel Roe v. Wade.***

By 1976, a few states tried and none succeeded in chipping away at the landmark 1973 ruling that legalized abortion in the United States. A Missouri law requiring a husband’s consent was the latest to fail that year. 

By the late 1980s, though, a more conservative bench would revisit Roe, giving increased deference to state and local restrictions.

“It’s the nibble theory,” said Tracy Thomas, Seiberling chair of constitutional law at the University of Akron.

Going further and earlier than others in the effort to restrict abortion, Democrats on Akron City Council would not nibble. They chomped.

Thomas has chronicled the legal history of abortion in Akron in multiple judicial reviews. In 2013, she examined the legacy of the 1978 restrictions passed by City Council and a later case out of Akron, which resulted in one of the first of several national rulings pulling at the loose threads of a woman’s right to access an abortion. Thomas’ research drew on “archives and long-forgotten files in dusty basements” and “interviews with key players in the cases,” including a couple now in their 80s or 90s and unwilling to return a call from the Beacon Journal.

As the first stand-alone clinics opened in the city, Akron passed an ordinance requiring all abortions after three months to be done in a hospital. In 1978, they approved 16 more restrictions — waiting periods requiring multiple patient visits, parental consent for minors and the inclusion of religious and non-medical language designed to discourage people from seeking abortions.

In 1983, the justices who decided Roe a decade earlier ultimately overturned the new laws in Akron. The ruling gave abortion-rights advocates their earliest and strongest reaffirmation of a woman’s reproductive rights and the Reagan administration, which joined the case alongside legal counsel for the city of Akron, its first national “embarrassment." 

But the lasting legacy is that Akron lawmakers, at the bidding of anti-abortion groups, “created that conservative playbook” for the eventual fall of Roe, which Thomas said “is definitely not going to survive … in any way, shape or form.”

The high court rejected nibbles that went too deep, Thomas explained. Within a decade, though, several restrictions got through, gradually battering Roe to the point of teetering on collapse.***

 “What was immediately drafted in opposition to Roe becomes the playbook because eventually all of those (Akron restrictions) are upheld” in separate court cases that followed, Thomas said. “As a case, Akron becomes a much more important example of how it can be done. I think it will come back to life with restrictions passed by the states. And cities are obviously easier to get things through.” 

The research is here:

Tracy Thomas, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Gender & Law 47 (2014)

Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie: A History of the US District Court for the Northern District of Ohio (Paul Finkelman & Roberta Alexander, eds. 2012).


A demonstration against an anti-abortion ordinance in City Council marches east on Bowery Street toward downtown on Feb. 13, 1978.

Abortion, Constitutional, Legal History, Legislation, Reproductive Rights, SCOTUS | Permalink


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