As NY Times Supreme Court reporter Linda Greenhouse retires, a look back on some reproductive rights cases she covered-and the alarming trajectory they reveal.
Linda Greenhouse, who won countless awards, including a Pulitzer, for her NY Times reporting on the Supreme Court, retired this week to teach. Her byline became a familiar one for those who followed the court’s decisions-and even those who don’t know the who’s who of the beltway media world likely read her words at some point in the past decades.
Over those decades, Greenhouse’s analysis of decision after decision have tracked the court’s backslide from Roe, which now essentially hangs by a single vote on the court.
A few times when the backslide seemed most precipitous, Greenhouse quietly demonstrated her own support for reproductive rights. She sent a message that women could not entirely abstain from opinion when it comes to the laws that govern their bodies. But she was able to continually report on the issue using rigorous analysis that betrayed no discernible bias.
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Greenhouse’s unwillingness to muzzle her views seemed courageous because she worked in a field that was so obsessed with an unrealistic standard of objectivity. She must have had her male colleagues and bosses in a tizzy whenever she reminded them that these decisions were not abstract, but affected real women like herself.
1989: First Roe challenge
Greenhouse began reporting on the court in 1978, five years after the historic "Roe v. Wade" and "Doe v. Bolton" decisions struck down all pre-viability state abortion bans. For years, the architects of "Roe" held firm on the court. But in the Reagan era, with a host of Supreme Court retirements, the solidity of Roe appeared to waver-and restrictions on abortion mounted.
In 1989, the worrisome "Webster v. Reproductive Health Services" decision upheld a very restrictive Missouri abortion law (which limited the use of federal funds, facilities and staff from performing abortions) without overturning Roe v. Wade. This was the first time the court had acknowledged any state’s right to impede access to abortion. Greenhouse analyzed the decision by saying "The effect of the decision was to narrow the scope of Roe v. Wade and to leave states more room to restrict abortion, while deferring a more decisive ruling to another case."
The logic behind the decision was that Roe, while stopping states from banning abortion, did not require states to allocate funds for the purpose of providing abortion. This development sparked a flurry of pro-choice activism. It was that year that Greenhouse, along with several other prominent journalists, quietly marched at a pro-choice rally in DC, drawing criticism from several colleagues. But she continued reporting on the court.
1992: Chipping Away
And as Greenhouse had predicted in her analysis of Webster, several other abortion cases followed closely on that case’s heels. Another lightning rod was 1992’s "Planned Parenthood v. Casey" because it was the first abortion-related decision for new justices David Souter and the controversial Clarence Thomas.
The court did not overturn Roe, as many feared it would, thanks to votes from Souter, Sandra Day O’Conner (the court’s first female justice) and Anthony Kennedy. But it did allow kind of restrictions that reproductive rights activists still rue, such as parental notification laws and mandatory waiting periods, providing that such restrictions did not impose an "undue burden" on women.
The original interpretation of Roe, Greenhouse wrote, was that "abortion was a ‘fundamental’ right that could not be restricted… But the new ‘undue burden’ standard will permit considerably more regulation."
2000s: The Threat of a Ban and the Partial-Birth Myth
In the last decade, the Bush era and his court appointments have led to one of the most dramatically disturbing developments in the fight to save Roe. "Stenberg v. Carhart," in the year 2000, struck down a Nebraska law that attempted to ban certain forms of pre-viability second-trimester abortion. With the moderate Sandra Day O’Conner still on the court, the importance of having a health exception for the mother and the broad wording of the Nebraska law meant that it could be interpreted to ban abortion more broadly, which is why the court rejected it.
In her article summarizing the case, Greenhouse explained the birth of a new right-wing strategy, the invention of the term "partial-birth abortion: "Anti-abortion forces coined the term in the mid-1990’s and have focused on graphic descriptions of the procedure as a way of undermining public support for abortion. The ruling today represents a significant setback to that strategy."
Intact dilation and extraction, the procedure targeted by the right wing as partial-birth abortion, was invented in the 1990s as an alternative to the sometimes, more dangerous dilation and evacuation. Around the time of the 2000 case, intact dilation and extraction counted for less than .2% of all abortions performed, and was often used when the other procedure was riskier, the fetus had died in the womb, or would not live long past birth. But the purpose of the right wing’s campaign against the procedure was to paint women seeking abortions as irresponsible and uncompassionate.
And one convert that the right wing won over with its "partial-birth" abortion brouhaha was Justice Anthony Kennedy, who raised the hackles of pro-choice activists with his passionate dissent from that 2000 decision.
2007: Gonzales Cements the Backslide
So when a similar case arrived at the court six years later and the crucial centrist O’Connor was replaced with the hard-liner Samuel Alito, Kennedy helped enable the decision to essentially be reversed. The court OK’d the first ever abortion ban without a health exception for the mother, Gonzales v. Carhart.
The wording of the ban specifically targets any procedure which includes an "overt act" that will "kill the partially delivered living fetus." It does not specify a timeline for the pregnancy (in other words, it is not just a late-term abortion ban). Because the ban carries a prison sentence, some clinics have resorted to injecting lethal drugs into the fetus before any of several abortion procedures, which increases the risk to the mother but protects the medical personnel from legal action.
Greenhouse wrote about the troubling precedent Kennedy was setting in his majority opinion on the 2006 case: "But never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health – mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood."
This alarming turn of events had led Greenhouse to explicitly state her concerns at a speech earlier that year at Harvard, saying she saw in Bush-era America a "sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism." This has helped fuel the fire against Greenhouse from the right wing, already kindled because of her elite status at the supposedly liberal Times.
An Uncertain Future for Roe
Perhaps it’s appropriate that as the judicial climate turns so sour for reproductive rights, Greenhouse has moved on. Her final thoughts on the court, published in the Times last week, are fairly gentle. But she makes an interesting point about the humanity behind the court decisions, noting that the Supreme Court’s strike-down of anti-sodomy laws (2003’s "Lawrence v. Texas") might have had much to do with the justices’ personal interactions with gay and lesbian friends. Perhaps, this implies, if the justices knew more women who genuinely struggled trying to access abortion or had medical complications that necessitated the procedure, the callous paternalism of Kennedy’s decision would not exist.
Picking up where Greenhouse will be leaving out are legal reporters like Slate’s Dahlia Lithwick, who has vigorously defended and openly expressed her admiration for her colleague. Like Sandra Day O’Connor did on the Supreme Court, Greenhouse’s career has helped blaze a trail for younger women reporters who will, through their prose and presence, remind the reading public that court cases writing law upon women’s bodies are not an abstract legal wrangling–but each one carries a potential threat to the safety and freedom of their friends, neighbors, and colleagues.