In the wake of the Supreme Court’s decision in Obergefell v. Hodges, many have looked to the Roe v. Wade ruling in an effort to forecast the cultural and political impact of federally sanctioned same-sex marriage. But as Mary Ziegler shows in After Roe: The Lost History of the Abortion Debate, the narrative that now surrounds that decision and its effects overly simplifies what was a very fluid situation, projecting today’s polarities further back in time than the history supports. Below, Ziegler outlines the folly in declaring Obergefell the next Roe when we still have such trouble understanding the first.
Critics of the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, have predicted that it will be the next Roe v. Wade. Indeed, comparison of Obergefell and Roe has become almost mandatory for Republican presidential candidates and conservative activists.
Some use the analogy to criticize the Court for short-circuiting political debate about marriage in the states. Others clearly want the Court to worry about the consequences of striking down marriage bans in so many states. Politicians turn to these arguments because they might appeal to voters otherwise supportive of marriage equality. If Obergefell is indeed the next Roe, the Court may have once again escalated the culture wars, making it harder for Americans to agree on issues of sexuality or gender, much less on same-sex marriage itself.
Are the Court’s critics right? At first blush, the comparison between Roe and Obergefell seems unconvincing. While the nation remains divided about abortion, polls have shown increasing support for marriage equality, particularly among younger Americans. For many, the moral issues also seem easily distinguishable. Pro-life Americans argue that a woman’s decision to choose abortion harms a person not included in the decision. Longstanding agreements about fetal personhood aside, the argument that abortion is not a purely self-regarding act is much easier to make than any related claim about marriage equality.
On the other hand, some of the trends spotted by Obergefell’s supporters might be less reliable than we might expect. After all, before issuing a decision in Roe, Justice Harry Blackmun had clipped a newspaper story reporting that more than 70 percent of Americans believed that abortion should be between a woman and her doctor. Like Blackmun, many prognosticators in the 1970s might not have foreseen much of what was to come: the rise of an intense, single-issue opposition, the mobilization of conservative evangelical Protestants, and political party realignment. We might be as wrong about Obergefell as Blackmun was about Roe.
Just the same, I think those who draw the analogy between Obergefell and Roe miss the point. The problem is that the Roe decision did not have the impact Republican candidates and conservative activists have suggested. As I show in After Roe, much of the polarization we blame on the Court’s 1973 decision came later and largely for reasons unrelated to the 1973 decision.
Reva Siegel and Linda Greenhouse have shown that the abortion wars were deeply divisive well before the Supreme Court got into the picture. What few remember is that gender politics—and even the presidential politics of abortion—were not nearly as ugly immediately after Roe came down. Many of the activists I studied for the book saw the Roe decision as a reason to seek middle-ground solutions that would make abortion rarer. The hard-and-fast pro-choice and pro-life categories we use to understand today’s conflict poorly capture the beliefs and identities of many who played a crucial role in the 1970s in creating the contemporary debate.
When the battle became more polarized, the Court alone was not to blame. In the late 1970s, the Religious Right offered money and influence to a fragmented pro-life movement. As feminists began to identify the pro-life movement more and more with social conservatism, opportunities for compromise fell away. In the same period, both the Republican and Democratic Parties made abortion a major issue in presidential politics. This shift made it harder to separate abortion from other gender questions. Contrary to what many of Obergefell’s critics suggest, Roe did not give birth to the modern culture wars. Arguing otherwise is unhelpful and wrong.
So what does the history of reactions to Roe tell us about what might happen next in debate about sexual-orientation discrimination? First, heightened conflict about same-sex marriage and any issue related to it is hardly inevitable now that the Court has intervened. Much as Roe alone did not make the escalation of the abortion wars inevitable, Obergefell has not stopped politicians, judges, and grassroots activists from making common-sense decisions that will moderate the conversation about gender and sexuality. If critics of the Court’s recent decision are serious about avoiding backlash, they should avoid making choices—like pushing a constitutional amendment—that will make the debate more emotional and angry. The story of Roe’s impact on popular politics reminds us that the Supreme Court never absolves the rest of our leaders from taking responsible positions on the country’s most controversial issues.
Second, the history of reactions to Roe should remind us that we are not good at predicting how the nation will respond to a blockbuster judicial decision like Obergefell. After Roe, both the pro-choice and pro-life movements changed radically, marginalizing many of those who are still ignored in contemporary discussions about reproductive health. Grassroots activists on either side of the issue had to respond to a series of unforeseen political developments. It was hardly easy to know, in 1973, that we would end up where we are now.
For the moment, it is hard to know whether Obergefell’s critics or champions have made a better prediction about the nation’s future. What is obvious is what activists have learned in the forty-plus years since the Court decided Roe: whatever comes next may well surprise us all.