Today, the 42nd anniversary of the Supreme Court’s decision in Roe v. Wade, thousands will gather in Washington to partake in the March for Life, an annual demonstration against “the greatest human rights violation of our time.” The March is but one of countless expressions of the common understanding of Roe as a signal event in the formation of America’s political and cultural divide. As legal scholar Mary Ziegler argues in After Roe: The Lost History of the Abortion Debate, though, by paying attention so exclusively to the Supreme Court we have lost a much richer story about the evolution of abortion politics. “Rather than remaining preoccupied by the Court’s actions,” she writes, “competing social movements had to navigate the realignment of both major political parties, the mobilization of the Religious Right and the New Right, the changing politics of population control and civil rights, and the popularization of neoliberalism.”
After Roe, to be published this spring, traces these forces through the decade following the Roe decision, informed by oral histories taken from over 100 of the activists and advocates who comprised those social movements.
An adapted excerpt from Ziegler’s Foreword appears below.
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The conventional wisdom holds that the Roe opinion provoked a major grassroots pro-life challenge to the legitimacy of the Supreme Court. For the abortion-rights movement, the story goes, Roe discouraged efforts to develop a broader and more equitable agenda that advanced all women’s interest in accessing contraception, child care, and health care and in avoiding sterilization abuse.
Historians, Supreme Court justices, and legal scholars with disparate normative views on abortion have united in their criticism of Roe’s broader societal impact: the opinion supposedly short-circuited a previously innovative dialogue between competing movements about what abortion rights ought to mean. Roe purportedly pushed American movement politics toward the “clash of absolutes” famously described by Laurence Tribe, as activists fought bitterly about the Equal Rights Amendment, contraception, and women’s role in the American polity. By focusing so heavily on the effect of the Supreme Court’s decision, however, scholars have exaggerated the importance of judicial intervention. In putting the Court at the center of the story, we have lost sight of equally important contributions made by the politicians, lobbyists, and grassroots activists who shaped the clash of absolutes Tribe discusses.
Events and activism since 1973 have transformed and multiplied the meanings of “Roe.” Opposing activists deployed Roe in ways calculated to change the course of abortion politics. Within the abortion-rights movement, feminists used Roe as a reminder that abortion was a women’s issue. At times, some movement members saw Roe as a symbol of the dangers of a single-issue agenda. In fundraising campaigns and efforts to mobilize new supporters, activists on opposing sides of the abortion wars reinterpreted the Roe decision in order to shape public consciousness of what the Court had said and whether its opinion deserved support.
These frequent movement reinterpretations of Roe remind us of its varied and often imprecise use in later scholarship. For supportive commentators, Roe represents the constitutionalization of reproductive rights or even the recognition of the relationship between fertility control and women’s liberation. Other observers use Roe to refer to specific features of Justice Harry Blackmun’s opinion: an emphasis on medical prerogatives, the neglect of the connection between abortion and sex equality, or the creation of a trimester framework governing access to the procedure. More generally, scholars, judges, and activists sometimes treat Roe as a stand-in for all “activist” judicial decision-making or its policy consequences. By using Roe in so many ways, we have contributed to misunderstandings of the opinion’s impact. Carefully describing social movements’ reinterpretations of the decision sets the stage for a deeper understanding of what “Roe” is and how it has made a difference.
As scholars and observers cast new values onto Roe, commentators swept away much of the history of how social movements actually responded to the decision. We have adopted a conventional account of post-Roe polarization that is fundamentally flawed, based upon assumptions about the aftermath of the Supreme Court decision rather than on systematic research. By using Roe to refer to so many deeply-held beliefs and wider political shifts, we have attributed too much of what followed to the Supreme Court’s decision. More importantly, we have missed many of the tactical decisions, ideological changes, and larger political transformations that helped to create the world of contemporary abortion politics.
Americans often blame Roe for setting off the contemporary abortion wars, but the opinion played only one part in a much more complicated story.
The history presented in After Roe calls into question several core scholarly conclusions about abortion politics and the influence of the courts. Social movements did not react to the opinion in the sharply polarized way we have assumed. Roe v. Wade did not immediately create or even reveal a fault line in American gender politics, as the abortion-rights movement fought for sex equality against an antiabortion movement that defended a stereotyped vision of gender roles. The radicalization of the discussion came later and resulted from much more than the Court’s opinion. Over the course of the 1970s and early 1980s, the Republican and Democratic parties took sides in the abortion conflict, and the newly mobilized New Right and Religious Right offered powerful strategic incentives for abortion opponents to join a larger conservative coalition. The much criticized single-issue, choice-based agenda deployed by abortion-rights leaders developed in response not just to the Supreme Court’s decision but also to the popularization of neoliberalism (a policy vision of limited government, deregulation, and free markets), and the new emphasis within the abortion-rights movement on a message and agenda that would succeed in electoral politics. Americans often blame Roe for setting off the contemporary abortion wars. After Roe shows instead that the opinion played only one part in a much more complicated story.
Nor did the Supreme Court’s intervention make movement dialogue about abortion rights any less rich—quite the contrary. Feminist women’s health activists promoted the very kind of reproductive-freedom agenda that the Roe decision supposedly scuttled. Opposing advocates continued to debate not only the meaning of abortion rights but also the best understanding of the Roe Court’s holding. And the pervasive belief that Roe immediately delegitimized the Court by circumventing the will of the majority ignores the actual social-movement reaction to the decision. In the decade after the ruling, pro-lifers did not blame the Roe Court for taking the abortion issue away from the American people. In fact, most leaders of the antiabortion movement believed that the Court had committed the opposite error, failing to protect a constitutional right to life from the uncertainties of democratic politics.
Movements involved in the abortion battle often serve as symbols of the bitterness of interest-group politics. Activists on each side supposedly share defining views about women’s rights, sexual freedom, and fetal life. In truth, the story is far more nuanced. In the decade after the Roe decision, the members of the opposing movements were diverse. These activists often disagreed passionately with one another about a variety of gender issues. The meaning of the pro-life or pro-choice cause changed significantly over the course of the decade.
Furthermore, Roe supposedly put an end to productive social-movement experimentation with different constitutional norms. By imposing a single, national rule of law, the conventional wisdom holds, the opinion prematurely ended debate about the meaning or scope of abortion rights. However, activists on both sides used the decision and all it symbolized not merely to contest the legal right to abortion, but also to alter public understandings of sex equality, fetal life, and the role of the courts in American democracy.
Indeed, movement leaders viewed the Court’s own holding as important raw material from which to forge new constitutional understandings. Competing activists popularized their own interpretations of the opinion, seeking to raise money, recruit new supporters, and shape the public’s understanding of what “Roe” had said. It is now axiomatic that Roe protects women’s decision-making freedom, but this interpretation departs from the text of the original opinion, with its emphasis on the interests of doctors and the privacy of the physician-patient relationship. Indeed, the contemporary view of Roe emerged as social-movement interactions informed the popular understanding of the Court’s opinion, helping to produce the interpretation familiar to us today—that Roe protects women’s abortion rights. The story of movement politics in the 1970s and early 1980s involves tremendous constitutional and political innovation as much as dysfunction and polarization.
Finally, these social-movement responses deserve study because key decision-makers—including sitting Supreme Court justices—look to this history in analyzing both abortion jurisprudence and the best general method of constitutional interpretation. Justice Antonin Scalia, one of the sharpest critics of the Roe decision, argues that antiabortion backlash stemmed from the justices’ willingness to substitute their own preferences for the result required by constitutional text or history. By contrast, Ruth Bader Ginsburg, one of the Court’s strongest proponents of abortion rights, asserts that Roe’s unconvincing privacy rationale, as opposed to one based on sex equality, intensified pro-life opposition and undercut the progress previously made by abortion-rights activists.
Legal scholars use Roe as a case study of the problems with opinions that outpace popular opinion or reach unnecessarily far-reaching outcomes, but these debates rest partly on an inaccurate historical account. We should not treat Roe as a central example of the dangers of judicial review or of the problems with particular methods of constitutional interpretation until we better understand the aftermath of the Court’s decision.
The Court’s decision neither produced nor reflected worldviews we can identify today as pro-life and pro-choice.
What is more, the Court’s decision neither produced nor reflected worldviews we can identify today as pro-life and pro-choice. Throughout the 1970s and early 1980s, activists and politicians entered into an unpredictable set of negotiations about what it meant to support abortion rights. Our current understanding of the abortion wars took shape in response to the political changes in the decade after the Roe decision.
If conventional narratives are flawed, how did Roe v. Wade alter American abortion politics? In the short term, on either side of the abortion question, the Supreme Court’s decision helped to reorient movement priorities. Partly because of the legitimating effect of a Supreme Court decision, abortion-rights leaders tended to gravitate toward strategies and arguments that would build in some way on the Court’s reasoning. Women of color and feminist health activists worked to redefine the idea of reproductive choice the Court embraced, advocating for protections against sterilization abuse and state support for family planning, healthcare, and childcare. Within the mainstream abortion-rights movement, advocates concerned with women’s legal rights—a group Serena Mayeri has called “legal feminists”—used Roe as a symbol of women’s demand for reproductive autonomy.
The Court’s opinion affected pro-life activism as well. Before 1973, pro-lifers had believed (and argued) that the Constitution already protected a right to life. When the Court rejected arguments for fetal personhood, abortion opponents prioritized a constitutional amendment establishing a fetal right to life. In engineering this amendment campaign, the antiabortion movement became larger, more diverse, and more structured. Viewing the amendment as a priority, pro-lifers often sided with any politician or party that supported their constitutional vision. As importantly, an influential group of abortion opponents stepped up efforts to find common ground in response to the Supreme Court’s decision. Since the justices had made abortion legal, these activists believed that pro-lifers had to do more to create meaningful alternatives to the procedure.
However, the Supreme Court’s decision made the greatest difference to abortion politics not because the justices issued an ambitious ruling but rather because so many social-movement members, politicians, and other actors used it to express important arguments and commitments. As a wide variety of commentators contested its meaning, Roe became a flash point for deeper struggles about the meaning of human life, sex roles, sexuality, and the role of the judiciary. To a much greater extent than any single Supreme Court ruling, Roe matters because we have invested it with so much significance.
