No Happy Medium: The Role of Americans’ Ambivalent View of Fetal Rights in Political Conflict over Abortion Legalization

The campaign to liberalize state abortion laws began in the late 1960s with a series of stunning victories. After Colorado changed its law in April 1967 to allow for abortion in cases of rape and medical necessity, eleven other states followed suit with similar legislation over the next three years. Nearly every region of the country participated in this abortion law reform movement. From the East Coast states of New York and Maryland to the Bible Belt of Georgia and Arkansas, and from the Midwestern heartland of Kansas to the West Coast states of California and Washington, state legislatures seemed eager to relax restrictions on abortion. Public opinion polls showed that more than 75 percent of Americans supported making abortion legal in at least some circumstances. ¹

Then the abortion law reform movement came to a sudden, unexpected halt in 1970 after four states removed nearly all restrictions on first- and second-trimester abortions, essentially legalizing abortion-on-demand. From December 1970 until January 1973, no other states legalized abortion-on-demand and only one state liberalized its abortion law—and it did so only because of a court order. The Supreme Court’s landmark ruling in Roe v. Wade (1973) provoked widespread resistance, with several states refusing to comply with the Court decision until lower courts forced them to do so. For the next forty years, pro-choice and pro-life activists continued to fight over abortion policy, making it a contentious issue in every presidential election and Supreme Court nomination, but with neither side able to win a clear victory.

Why did an abortion rights movement that began with a wave of legislative victories become hopelessly mired in controversy? Most scholars who have discussed the question have blamed the continued controversy on a “clash of absolutes”—a fundamental difference in moral or religious world-views, often exacerbated by partisan conflict.² With one side in the debate claiming that a woman has an absolute right to control her own body—and thus an absolute right to secure an abortion if she chooses—and the other side claiming that a fetus has an absolute right to life, no political compromise seemed possible. Yet while this analysis accurately describes the stakes in the debate for the partisans on both sides, it hardly explains why there was a sudden reversal in fortune for the abortion rights movement in 1970, nor does it explain why the majority of Americans for the past half a century have not fully accepted the arguments of either the pro-life or pro-choice sides in the debate.

This article argues that an often-overlooked reason for both the early victories of the abortion liberalization movement prior to the 1970s and its subsequent failures was the ambivalent view of fetal rights held by the vast number of voters who fell outside of either the pro-life or pro-choice camps. In the mid-twentieth century, the majority of Americans began to view fetal rights and abortion in relative terms, rejecting the existing legal code’s prohibition on all abortions except those necessary to save a woman’s life. Most Americans continued to believe that abortion was wrong in most cases, but they also began to think that it might be justifiable in cases of medical necessity or where it seemed necessary to accomplish a larger social good. The majority of Americans began to believe, in essence, that a fetus has intrinsic value, but not an absolute right to life.

This view proved to be a double-edged sword for both the pro-life and pro-choice movements. During the 1960s, the public’s view that concerns about the fetus had to be balanced against women’s needs and the concerns of the larger society allowed proponents of abortion law liberalization to gain widespread support in their campaign to loosen restrictions on abortion. But the public’s support for limited fetal rights also posed problems for the abortion rights movement in the early 1970s, when abortion law became more liberal than prevailing public...