Mary Ziegler. Washington and Lee Law Review. Volume 71, Issue 2, Spring 2014.
I. Introduction
In May 2013, Justice Ruth Bader Ginsburg, perhaps the strongest defender of abortion rights on the Supreme Court, suggested that Roe v. Wade “stopped the momentum that was on the side of change.” As marriage-equality litigation continues to move into the Supreme Court, Ginsburg’s comments have revived discussion of Roe’s damaging effects. Most often, scholars focus on the ways in which Roe set back the abortion cause, undercutting the progress that the pro-choice movement had made. Conventionally, however, we believe that Roe’s impact went much further. Scholars from Robin West to Jeffrey Rosen argue that Roe helped to entrench the ideological positions held by those on either side of the issue, precluding any form of productive compromise. The polarization produced by Roe spilled over into other legal conflicts about gender, helping to doom the Equal Rights Amendment (ERA), to energize the New Right and the Religious Right, and to put off potentially promising alliances in support of caretaking. Beyond backlash, Roe bequeathed to the American people what Emily Bazelon has called “the intractable, depressing national divide over abortion.”
Whereas backlash arguments address the harm judicial decisions do to social-change movements, Roe’s critics focus on the damage done by judicial intervention to the larger society. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences. Justice Antonin Scalia has woven this argument into a demand for the overruling of Roe. In the broader legal academy, scholars believe that post-Roe polarization provides a powerful warning about the consequences of particular interpretive methods-particularly, when the Court decides too much too soon. Forty years after Roe, the decision serves as a central example of the dangers of judicial review.
This Article reevaluates the beyond backlash claim through a careful historical study of abortion politics in the decade after Roe. It unearths a surprising set of negotiations between activists who believed it possible to find common legal ground. Roe certainly intensified conflict, prompting a nationalization of pro-life activities and sparking an academic debate about judicial review. Nonetheless, as the Article argues, the ideological entrenchment we associate with Roe came later than we thought and emerged for reasons beyond the Court’s decision.
The Article chronicles a complex effort on the part of opposing activists to find consensus-if not on abortion, then on the gender issues associated with it. Moderate pro-life activists worked to redefine the legal right to choose, requiring government support for a range of reproductive choices. Some in the pro-choice movement supported some form of fetal rights, considering them in the larger context of debate about medical ethics, human experimentation, and human dignity. These stories show that judicial review did not intensify abortion conflict in the way we have often believed.
Furthermore, the Article provides compelling new evidence that the polarization of the struggle increased at least partly “without the intermediation of judicial review.” The dynamics of gradual political party realignment in the 1970s, the mobilization of the New Right and the Religious Right, the setbacks confronted by the pro-choice movement, the emergence of effective new pro-life litigation strategies, and the declining popularity of the welfare state all helped to undermine preexisting efforts to find common ground.
The Article uses this history as an entry point for rethinking the uses to which post-Roe history is put in contemporary debate about judicial review. The beyond backlash argument uses Roe as shorthand for a wide array of strategic decisions and political events. Disentangling the decision from the events following it will allow scholars to have a more principled debate about what Roe actually teaches us about the role of the courts. At a minimum, the Article suggests that scholars have overstated the degree to which Roe immediately polarized discussion. Until we better understand the causes of the radicalization of abortion politics, we should not rely so heavily on Roe in reasoning about the consequences of judicial review.
As importantly, reexamining the beyond backlash narrative makes apparent that polarization is neither inevitable nor beyond the control of nonjudicial actors. If we want to create a less dysfunctional abortion politics, we have it in our power to do so.
The Article proceeds as follows. Part II briefly sets out the beyond backlash narrative, examining the evidence offered for Roe’s disastrous impact on national politics. Part III begins to complicate this narrative. This Part recovers the lost history of antiabortion efforts to define and protect some form of reproductive choice for women. Tracing these efforts across legal debates about healthcare, child care, family planning, and pregnancy discrimination, the Article uncovers a new antiabortion argument used in the years immediately after the Supreme Court decided Roe. Abortion opponents argued that the state could ban abortion only if it conferred rights on women after pregnancy. For this reason, activists campaigned for reforms that created new protections for caretakers, arguing that reproductive choice lost meaning if the state did not support women raising children.
Part IV examines pro-choice conversations about medical experimentation, fetal life, and informed consent. In the midst of scandals concerning medical exploitation and sterilization abuse, some in the pro-choice movement worked to carve out a space for fetal rights that did not conflict with Roe.
Part V studies the reasons a world of possible compromise gave way to one of greater ideological entrenchment. This Part spotlights the role played by ongoing political party realignment, the emergence of the New Right and the Religious Right in American politics, and the ascendancy of incrementalist litigators in the pro-life movement.
Part VI asks what this history teaches us about Roe’s last forty years and its future ramifications, and Part VII briefly concludes.
II. Beyond Backlash: Roe and American Politics
Conventional backlash arguments examine the impact of a judicial decision on the cause it advances. As Michael Klarman explains, a court “venturing too far in advance of public opinion” might “undermine the cause” advanced by social movement members. Klarman and Gerald Rosenberg focus primarily on the utility of litigation as a source of social change. While Rosenberg contends that the courts are largely ineffective in reshaping social, moral, or political norms, Klarman suggests that litigation can make things worse for the social movements that the Court tried to help.
However, criticisms of Roe go beyond the conventional backlash narrative. Scholars, Supreme Court Justices, and grassroots activists argue that the 1973 decision did broader political damage. Richard Posner suggests that Roe cut off a promising, state-by-state negotiation about the scope and rationale of abortion rights. If the Court had not imposed a single, national result on a divided polity, Posner reasons, lawmakers might have arrived at an approach that commended itself to those on both sides of the issue.
Cass Sunstein and Jeffrey Rosen further contend that Roe helped to radicalize broader American gender politics. In Rosen’s view, Roe empowered extremists on either side who rejected the idea of compromise out of hand. Sunstein asserts that Roe helped to mobilize religious conservatives who successfully defeated the ERA and undercut the women’s movement. William Eskridge elaborates on the way in which Roe empowered traditionalists in the pro-life movement who resisted any change to women’s roles. In the view of Eskridge and his colleague John Ferejohn, Roe’s reasoning moved pro-life traditionalists to more extreme positions and embittered the abortion battle.
Beyond backlash arguments have influence outside the legal academy. Beginning in the 1980s, leading pro-lifers have used these arguments as a reason for overruling Roe. For example, in 1981, Dr. John Willke, a leading abortion opponent since the preRoe period, argued that Roe should be overruled because of its impact on American politics: “[W]e live in a Nation that is totally polarized on this issue,” he asserted. “Unlike other issues in the body politic, there is no middle ground, there is no compromise.”
Justice Antonin Scalia has made beyond backlash arguments a part of American constitutional law. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the majority used post-Roe backlash in explaining the need to hold fast to Roe’s “essential” holding. Were the Court to hold otherwise, the Casey majority suggested, the Justices would signal their vulnerability to political pressure.
Scalia responded that maintaining Roe, just like deciding it, would make the abortion battle more dysfunctional. Scalia explained:
Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level …. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption […] that the Court’s new majority decrees.
In Scalia’s view, Roe created a politics of violence, radicalization, and hostility to the Court. The opinion’s unconvincing, resultoriented reasoning angered a public that demanded principled decision making. Furthermore, the Court’s imposition of a single, national solution precluded any meaningful effort to find consensus on the abortion issue. Only overruling Roe, Scalia 46. See id. at 995 (“Roe’s mandate for abortion on demand destroyed the tells us, would offer any opportunity to create a more productive dialogue about abortion.
Beyond backlash arguments speak to courts as much as to social movement members. These contentions ask courts to consider the impact their decisions will have not just on a particular cause but also on the larger geography of American politics. Roe serves as a warning about the harm that courts can do in exercising judicial review.
As importantly, beyond backlash arguments offer a compelling narrative about the world Roe produced. In this account, opposing movements responded to Roe by taking more extreme positions and became less flexible in their gender politics. Possible partnerships on related issues, including family planning, sex discrimination, and maternal rights, became impossible.
What features of Roe supposedly produced this stalemate? Some scholars point to the decision’s timing. Michael McConnell has described Roe as a decision “that cuts off deliberation and debate, that makes compromise impossible, and that eliminates political solutions.” William Eskridge and John Ferejohn similarly describe Roe as an effort “to close off active democratic deliberation through activist judicial review.” In 1985, Justice Ginsburg pioneered such an argument about Roe’s timing. Before the opinion came down, Ginsburg asserts, the pro-choice movement had made impressive progress in the states. Because the Court decided too much too soon, the pro-life movement was able to reverse this trend and introduce new abortion restrictions. Because the public did not yet support the expansive abortion rights Roe announced, the opinion unnecessarily angered abortion opponents and radicalized discussion of the issue.
Others emphasize the sweeping holding and rationale Roe offered. Cass Sunstein, whose minimalist theory urges an incremental approach to judicial decision making, describes Roe as “a large mistake.” Richard Posner’s judicial pragmatism also appears incompatible with Roe’s far-reaching holding.
Arguments about Roe’s consequences figure centrally in conversations about the role played by the courts in American democracy. Scholars use Roe as a case study of the unexpected harms produced by judicial review. Some, like Sunstein and Posner, rely on Roe as an illustration of the relative disadvantages of particular modes of constitutional interpretation. Even within the Court, Justices Scalia and Ginsburg turn to Roe’s effects in reasoning about the best path forward in American abortion law. In stories about the power of the courts, Roe serves as a cautionary tale. Scholars urge judges to consider this history before issuing decisions with damaging consequences.
Parts III and IV use original archival evidence to test the beyond backlash hypothesis. A number of scholars have argued that conflict over abortion began well before Roe, as activists mobilized to change state laws. This Article breaks new ground by showing that opportunities for compromise remained after the decision. Part III examines one effort of this kind-an antiabortion effort to create a new right of reproductive choice.
III. The Pro-Life Movement and Reproductive Freedom
In the mid-1970s, both pro-choice and pro-life activists offered a capacious new understanding of reproductive freedom. Although they disagreed profoundly about abortion and the nature of motherhood, opposing activists believed that reproductive choice lost meaning if women did not have the financial means to raise children without sacrificing their careers, educations, or health. Many feminists argued that reproductive choice required access to and funding for abortion, whereas most abortion opponents favored an amendment that would ban abortions performed by private as well as state actors. While pro-lifers often saw motherhood as women’s natural role, feminists wished to separate women’s reproductive capacities and social obligations. Nonetheless, those on opposing sides of the abortion issue collaborated successfully in campaigning for protections for adolescent mothers and bans on pregnancy discrimination. These activists agreed that true choice would require state assistance.
Trauma, Abortion, and Unintended Pregnancy
Pro-life arguments about reproductive choice emerged from earlier dialogue about the impact of abortion on women’s mental health. Beginning in the mid-1960s, a handful of states reformed their abortion laws to make the procedure legal on the basis of mental health, among other reasons. Looking to the model statute adopted by the American Law Institute (ALI), these reform states also permitted abortion on a variety of grounds. Nonetheless, as the number of abortions performed annually increased, psychiatric abortions became the most accessible. Women infrequently reported cases of rape, incest, and fetal abnormality, and with improvements to obstetric and gynecological care, fewer physicians could fit abortions within physical-health exceptions. Between 1963 and 1968, a published study reported a seven-fold increase in the number of psychiatric abortions performed.
To avoid legal liability, physicians had to fit a variety of social and economic decisions into the category of psychiatric abortions. In 1970, Studies in Family Planning found that a majority of psychiatric abortions were not “strictly psychiatric” but rather justified on the basis of “impulsive behavior, misjudgment, [and] environmental factors like alcoholism, drug use, and some types of adolescent behavior.” In diagnosing a woman as depressed or suicidal, as other studies reported, physicians took into account a woman’s socioeconomic or marital status.
Providers justified a wide variety of abortions-including those chosen for social or economic reasons-on psychiatric grounds. By extension, the emerging pro-choice movement suggested that legal abortion would prevent a great deal of psychological trauma. In a strategy memorandum to pro-choice activists, leading advocate Larry Lader wrote: “Cite cases of how women’s lives were ruined by being forced to bear an unwanted child … [and] the tragedy of the unwanted child, possibly leading to the battered child and infanticide.” Similarly, the official debate manual of the National Association for the Repeal of Abortion Laws (NARAL, later known as the National Abortion Rights Action League) described the psychological harms averted by legal abortion. Liberalizing archaic laws would “decrease the number of unwanted children, battered children, child abuse cases, and possibly subsequent delinquency, drug addiction, and a host of social ills associated with neglectful parenthood.” The manual also counseled activists on how to respond to allegations that abortion would psychologically damage women. The response was: “While many women are known to be hospitalized with mental illness following childbirth, such severe psychosis following abortion is virtually unknown.”
Beginning in the 1960s, scholars opposed to abortion responded by arguing that abortion caused psychiatric distress. Legal scholar Dennis Mahoney explained: “[T]herapeutic abortion … carries with it a degree of emotional trauma far exceeding that which would have been sustained by continuation of the pregnancy.” Another scholar went further in outlining the damage done by abortion: “Social reasons can never be held sufficient to warrant the dangers of emotional trauma that… [women] will subsequently experience. ‘[Abortion] cannot be to prevent mental illness, for abortion is not a prophylactic against psychosis, but rather a precipitant.”
When the American Medical Association debated abortion reform in 1967, one antiabortion physician contended that “all clinical experience shows that abortion is a mental wound as well as a physical wound.”
Roe borrowed significantly from discussion of the relationship between pregnancy and trauma in explaining the constitutional significance of the abortion decision. In explaining why women had a privacy interest in abortion, the Court stressed the psychological impact unintended pregnancy and childbirth had on women:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
Pregnancy signaled mental problems and “a distressful life and future.” Women, whom the Court assumed to be caretakers, would have their mental health taxed by childcare, as would unwanted children. These harms followed inevitably from a woman’s sexual decisions. Women became victims of their own choices, suffering on account of the “continuing stigma of unwed motherhood” and the “[psychological harm” associated with unwed motherhood.
Vulnerable Mothers and Reproductive Choice
Because Roe foregrounded the question of mental illness, the opinion reinforced social-movement interest in debating the relationship between trauma, pregnancy, and abortion. In the aftermath of the decision, a circle of moderate pro-life activists offered a new legal argument about post-abortion trauma. Central to this effort were members of American Citizens Concerned for Life (ACCL), a group the National Organization for Women (NOW) described as a pro-life, “pro-birth control, pro-sex education” organization. Marjory Mecklenburg, one of the organization’s leaders, helped to formulate a theory addressing the relationship between trauma, motherhood, and abortion. Mecklenburg became better known for her later role supervising federal family planning programs under the Reagan Administration, but her role in the abortion debate was far more complex. A former home economics teacher, Mecklenburg became one of the most powerful women in pro-life politics, serving as the chairwoman of the nation’s largest national antiabortion organization, advising Gerald Ford’s presidential campaign, and influencing national debate on a variety of gender issues.
Mecklenburg’s AC CL argued that both abortion and unintended pregnancy created psychiatric distress. Partly for this reason, the organization supported mainstream pro-life initiatives, including a constitutional amendment that would prohibit private and public actors from performing abortions. However, these activists argued that the state could fairly ban abortion only if it provided far-reaching rights for pregnant women, mothers, and postnatal children.
Over time, these moderate activists formulated a new understanding of the right to choose. While not acknowledging any constitutional protections for abortion, these advocates insisted that reproductive choice required both financial and symbolic support for childbirth and childrearing.
The AC CL first used this understanding of reproductive choice during the campaign for a fetal-rights amendment in the mid-1970s. Members of Congress had two constitutional amendments under consideration. The Buckley Amendment, proposed by Senator James Buckley (Conservative-NY), stated: “With respect to the right to life, the word ‘person’… applies to all human beings, including their unborn offspring at every state of their biological development.” Representative Larry Hogan (R-Md.) offered an amendment describing: “Neither the United States nor any State shall deprive any human being, from the moment of conception, of life without due process of law.”
While endorsing such far-reaching bans on abortion, Mecklenburg focused on what the state owed mothers: “We need to ask what are the conditions of life which confront women who are troubled by an unintended pregnancy but who do not choose abortion. What are their rights? What is society’s duty to them and to the children they will bear?”
Mecklenburg formulated a new understanding of reproductive choice. The Supreme Court had set forth an idea of choice that mostly involved liberty from the state. Mecklenburg instead saw choice as inextricably linked to the idea of welfare rights. If the state recognized a right to choose to bear a child, as Mecklenburg argued, then the state had to guarantee women the means to raise that child. She asked Congress to support child care, sex education, family planning, and programs to encourage young girls to continue to pursue education in the setting of their choice.
In the same period, reproductive-rights activists in organizations like the Reproductive Rights National Network (R2N2) and the Committee for Abortion Rights and Against Sterilization Abuse (CARASA) connected state support and reproductive freedom. These groups formed to offer a more radical alternative to the pro-choice movement-one that would fight for a more transformative agenda. In the late 1970s, CARASA, a New York-based reproductive-rights organization, described reproductive choice as the “[r]ight to decide when and whether to have/not have children; and [the] material possibility of making that choice.” For that choice to have meaning, CARASA argued, women needed access to birth control, child care, decent health care, and a decent income. In 1980, R2N2 argued that reproductive freedom required that the state do more than leave women alone. True freedom required “a multi-issue approach to abortion … capable of fighting for all the economic and social conditions necessary for true reproductive freedom.”
Mecklenburg and the ACCL took a strongly different position on abortion. Just the same, some moderate pro-life activists and feminists agreed in significant part about the meaning of a right to choose. Mecklenburg believed that the state had an obligation to protect and honor mothers-both by banning abortion and by providing concrete support for caretaking. Some feminists agreed that real choice required social justice as well as liberty.
Mecklenburg elaborated on this idea during the fight for the School-Age Mother and Child Health Act of 1975, a comprehensive program that would have set aside funding for pregnancy testing, comprehensive healthcare for newborns and toddlers, family planning, day care, continuing education, and adoption assistance. Pro-choice activists endorsed the reform, as did the ACCL. In testifying in favor of the bill, Mecklenburg elaborated on her idea of reproductive choice: “[M]any poor women, pressed by financial circumstances presently have only the ‘freedom’ to abort…. Surely, advocacy of the ‘right of a woman to choose’ does include the right for her to choose to continue the pregnancy.”
The School-Age Mother and Child Act of 1975 failed to pass, but the ACCL revived its campaign for reproductive choice in lobbying for the federal Pregnancy Discrimination Act (PDA). Feminists viewed pregnancy disability reform quite differently than did Mecklenburg’s allies, presenting it as part of a larger project to separate women’s biological and social roles. Those involved in the temporary disability struggle worked “to realize economic security for childbearing workers, without reinforcing sex-role stereotypes.” Significantly, leading feminists often opposed any special protection for mothers. Describing pregnancy discrimination in this manner presented it as part of a larger effort to end women’s subordination in the family and the larger society.
In seeking to free women from sex stereotypes, feminists also presented publicly funded, universal day care as a fundamental right. By the early 1970s, feminists made some progress in the quest to secure this right, when the Comprehensive Child Development Act of 1971 garnered significant support. The ultimately unsuccessful law would have offered affordable child care services to families across the socioeconomic spectrum.
Moderate pro-lifers supported both protections against pregnancy discrimination and federally mandated childcare programs, albeit for different reasons. The ACCL took up the issue of pregnancy discrimination after 1976, when the Supreme Court concluded that pregnancy discrimination did not constitute impermissible sex discrimination under the federal Civil Rights Act. In the 1973 Supreme Court case Geduldig v. Aiello, the Court upheld a California disability policy that excluded pregnancy, concluding that such laws did not violate the Equal Protection Clause. Several years later, in General Electric v. Gilbert, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964 provided no relief. In the wake of Gilbert, a coalition of feminist and labor activists vowed to pass a law changing the result of the Court’s decision.
Feminist advocacy for the PDA spoke “to sex equality, to women’s socioeconomic independence, and to the eradication of sex-role stereotypes.” By contrast, in lobbying for the PDA, the ACCL elaborated on the connection between sex discrimination and reproductive choice:
[Pregnancy discrimination] has a severe impact upon lowincome workers who are forced to take unpaid maternity leave at precisely the time when expenses are increased ….
When a worn [a] n is faced with losing her income for several weeks or months and perhaps with losing her job because of pregnancy, her decision to abort cannot be said to be the product of free choice of economic coercion.
In advocating its own idea of reproductive choice, the ACCL ultimately joined feminists in supporting a version of the PDA that would require employers to fund leave after an abortion. Abortion opponents in Congress, including Senator Thomas Eagleton (D-Mo.) and Representative Edward Beard (D-R.L), had sought to amend the PDA to ensure that employers would not have to support employees receiving post-abortion care. The ACCL publicly endorsed the bill with or without such an exception. As ACCL member Dorothy Czarnecki explained: “I think a woman should be given her choice. This bill is good because it encourages people to remain pregnant rather than coerces them to abortion, but this [decision] would [depend on] a woman’s feelings. It is a matter of a woman’s choice that we would be allowing.”
If the Constitution truly protected a right to reproductive freedom, as the ACCL argued, that right included government assistance with the reproductive decisions women made. This claim united pro-choice and pro-life activists dissatisfied with the Court’s reasoning in both Roe v. Wade and Maher v. Roe. Roe described a right to privacy broad enough to encompass decisions about abortion and contraception. Maher, a case on the constitutionality of state bans on the public funding of abortion, clarified that this right involved only a freedom from state interference rather than any entitlement to state support. For influential activists on either side of the abortion issue, the freedom to choose had to include government support for caretaking.
Mecklenburg and the ACCL also demanded accommodations, rather than mere equal treatment, for unwed mothers. The group lobbied consistently for a “comprehensive approach … [that would] provid[e] both medical care and psycho-social support.” Eliminating discrimination against unwed mothers would require the creation of government programs ensuring access to healthcare, education, and employment.
Key sponsors of the PDA echoed this idea of reproductive choice. Pro-life Senators like Thomas Eagleton argued that sex discrimination could effectively coerce women into terminating a pregnancy. Representative Ronald Sarasin (R-Conn.) similarly argued that reproductive choice could not require a woman to sacrifice her career. In the past, Sarasin suggested, women had to choose “between having children and working.” The PDA gave a woman “the right to choose both, to be financially and legally protected before, during, and after her pregnancy.” The legislative history of the PDA suggested that the law would “facilitate a woman’s choice to conceive and bear children without facing undue economic hardships.”
Conventionally, scholars believe that Roe short-circuited the kind of partnership the ACCL successfully pursued. The PDA represented a successful post-ifoe collaboration between abortion opponents and pro-choice activists. The version of the bill endorsed by the ACCL-one without a ban on abortion fundinggarnered the support of NARAL and NOW. Similarly, the ACCL partnered with Planned Parenthood in lobbying for the Adolescent Health Services and Pregnancy Prevention and Care Act, a law funding family planning, sex education, and child care for teenagers.
What can the ACCL’s campaign for reproductive choice tell us about post-ifoe ideological entrenchment? First, the ACCL’s story shows that post-ifoe politics created some incentive for compromise. Internal documents from the late 1970s suggest that ACCL members believed that pro-lifers could not be truly credible or influential unless they worked with the opposition to make abortion less necessary. In order to be taken seriously, the argument went, pro-lifers had to be consistently concerned about vulnerable members of society, including pregnant women.
Second, the ACCL’s experiences complicate our understanding of post-ifoe extremism. At first, it seems to make sense to connect Roe to the radicalization of all gender politics. By putting off limits many state compromises on abortion, Roe removed any reason for pro-lifers to settle for second-best solutions. As the ACCL’s story makes apparent, however, some activists believed that absolutist positions on abortion required compromise on other gender issues. Seeking out common ground in this way would reduce the need for abortion and strengthen society’s commitment to mothers’ rights.
Later, as Part IV contends, it became more challenging to form alliances of this kind. The radicalization we blame solely on Roe occurred gradually. Polarization, moreover, took place partly without the influence of the Court. Moreover, as Part III shows, pro-choice as well as pro-life activists responded to Roe by working to find shared legal solutions.
IV. Fetal Rights Beyond Abortion
In Roe v. Wade, pro-choice amicus curiae briefs argued that, in any conflict between women’s rights and fetal rights, the woman’s interest in autonomy should prevail. After 1973, members of the abortion-rights movement had to consider whether support for legal abortion precluded any recognition of fetal rights.
Pro-choice activists debated these questions in the wake of legal struggles over fetal research. In contemporary politics, organizations like NOW consistently oppose most regulations on fetal research, suggesting that restrictions tend to curb medical progress and endanger abortion rights. In the immediate aftermath of Roe, by contrast, the relationship between abortion and fetal research-and even fetal rights-appeared far more fluid. Members of Congress and some organizations supportive of abortion rights endorsed limited protections for fetuses that did not conflict with a woman’s abortion decision. Pro-choice activists debated the propriety of fetal rights in the context of scientific experimentation and late-term abortion.
Only gradually did pro-choice support for fetal rights come to seem a contradiction in terms. Again, the Court did not serve as the primary source of polarization. Instead, as the pro-life movement scored a string of victories in state legislatures, supporters of abortion rights began to reject any law that could set a precedent for recognizing fetal personhood. For their part, abortion opponents often began to include laws on fetal research or “born alive” fetuses in multipart laws restricting abortion. For reasons having little to do with Roe, fetal rights seemed nothing more than an excuse for banning abortion.
Fetal Research and Vulnerable Human Subjects
In July 1973, several members of the National Institutes of Health urged the recognition of “human rights” for the aborted fetus, particularly in the context of fetal research. Surprisingly, the lawmaker at the center of a campaign for fetal rights, Senator Edward Kennedy (D-MA), led the effort to protect abortion rights in Congress. Before Roe, Kennedy, a devout Catholic, had come out against the complete repeal of abortion restrictions. NABAL had singled him out for criticism. By 1974, however, Kennedy became one of the pro-choice movement’s strongest allies. He helped to engineer the defeat of the Bartlett Amendment, a failed ban on Medicaid funding for abortion. In later years, Kennedy would maintain his alliance with the prochoice movement.
Nonetheless, like other commentators, Kennedy saw some form of fetal protections as compatible with abortion rights. In May 1973, the generally pro-choice New York Times hinted at the complexity of the relationship between fetal research and abortion: “[D]oes anyone have the right to research on it without consent-and whose consent? The mother would ordinarily be the one to ask, but she has already asked for an abortion. Can she be said to have the best interest of the fetus at heart?”
When Congress held hearings on the subject of fetal research, Kennedy questioned “where if at all, [the] issue overlap [ped]with the abortion issue.”184 Just the same, Kennedy framed fetal research as one example of unregulated and often harmful human experimentation. In the 1970s, a number of medical scandals had attracted national media attention. One such scandal emerged in July 1972, when the Associated Press ran a story revealing the details of the Tuskegee study, a project begun forty years before on the effects of untreated syphilis on African-American men. The 400 men involved in the study had no idea what the study involved, and no test subject had received proper treatment. Other concerns surrounded public revelations about involuntary sterilizations. To some observers, fetal research represented another example of victimization through human experimentation.
In 1974, congressional hearings made apparent the distinctions between fetal research and abortion. Pro-life witness Andre Hellegers reasoned: “The case can no longer be argued under slogans such ‘Every woman has a right to control her own body’ since the fetus is no longer inside her body …. In brief, there is no longer any possible conflict between the fetus and its mother.”
In the absence of a conflict, could the fetus have any rights? Dr. Richard Behrman, a champion of fetal research, argued that decisions about fetal research “should be made by an uncoerced and reasonably adequately informed individual or individuals whose interests are substantially overlapping or identical to those of the proposed subject.” Kennedy believed that true protection required the establishment of a permanent scientific commission that would supervise all human experimentation, including any concerning fetuses.
The 1974 hearings raised a number of difficult questions for the pro-choice movement. Did pro-choice activists logically have to oppose restrictions on fetal research? Could activists reconcile fetal rights with women’s interest in reproductive autonomy?
These questions proved difficult for some pro-choice organizations. The American Civil Liberties Union (ACLU), a leading pro-choice organization, actually adopted a vision of fetal rights.
The ACLU and Fetal Rights
In the mid-1970s, the ACLU made a major contribution to the advancement of abortion rights. The organization’s Reproductive Rights Freedom Project, founded in 1974, led efforts to defend Roe in the courts. Nonetheless, the ACLU Privacy Committee proposed protections for fetal rights that its members believed to be consistent with Roe.
At a June 1976 meeting, the Committee members concluded that women’s interests took priority, but if a woman had nothing to lose from the choice of one procedure or another, the state should recognize fetal rights. The Committee focused on whether the Roe decision precluded any recognition of fetal rights: “Do we define abortion as relieving the mother of the pregnancy or as killing the fetus?” The question set the agenda for latter battles within the ACLU.
In October 1976, disagreement within the Committee intensified. One member present took the position that the Fourteenth Amendment created “an affirmative obligation to protect and support life.” A child welfare expert argued that the Committee should “adopt the position that the right to abort is the right to kill,” which was Roe’s “full implication[ ].” Others insisted that “the medical profession [should] make decisions” about the breadth of abortion rights.
In October and November, the Committee agreed to recognize fetal rights, all the while balancing them against a woman’s paramount right to reproductive freedom. While acknowledging that “the rights of the fetus can be limited by practical considerations,” the Committee concluded that “society must accept responsibility if the mother desires to be relieved of her obligation.” The Committee also recognized that the knowledge that the fetus would survive might chill women’s reproductive decisionmaking, particularly late in a pregnancy. Nonetheless, in November, the Committee concluded that women had no right to avoid knowing the “fate of the fetus,” given the importance of both fetal rights and the First Amendment interests of those who would otherwise speak out on the matter.
The Committee turned next to the issue of fetuses that survived an abortion procedure. Again, the Committee reasoned that fetal rights and women’s abortion rights could coexist. Without threatening legal abortion, the Committee believed, the state could give the fetus rights to medical care after the completion of an abortion. As importantly, in any state that restricted abortion, the fetus had a right to financial support.
In 1975, the federal government similarly tried to separate the issues of abortion and fetal rights. Congress chartered a group to study the question-the Department of Health, Education, and Welfare’s National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research-the Department of Health, Education, and Welfare-which approved regulations requiring the preclearance of any research that harmed a fetus. The Commission required researchers to use only fetuses under twenty weeks of age and to show that their research did not compromise the chances of fetal survival. Like the ACLU Privacy Committee, the Commission discussed fetal rights as a subject that could be separated from abortion.
This Article next examines some of the reasons that collaboration between pro-choice and pro-life activists became so difficult later in the 1970s. The ACCL’s project ran into difficulty as the pro-life movement forged a lasting partnership with the Republican Party. By the early 1980s, constitutional and political support for welfare rights had eroded, and the pro-life movement had adopted the social and fiscal conservatism of its new partners.
Political party realignment also undermined the kind of fetal rights proposal explored by the ACLU. The pro-life partnership with the New Right made its cause appear both antifeminist and anti-woman. In the same period, activists prioritized the passage of multirestriction laws, like those introduced in Akron, Ohio, and the State of Missouri. These laws limited access to abortion in a variety of ways, and many multirestriction bills also addressed fetal research, the choice of abortion procedure, or post-abortion fetal care. For pro-choice activists, these laws served as further evidence of pro-life desire to keep women in traditional roles. If all fetal-rights laws sought to keep women in their place, pro- choice leaders believed, there was no way to reconcile the rights of women and unborn children.
V. Radicalization Outside the Court
Scholars have attributed a great deal of post-Roe polarization to the Supreme Court’s sweeping decision. As Reva Siegel and Linda Greenhouse have shown, well before 1973, leaders of the Republican Party had their own reasons for escalating the abortion conflict. As this Part contends, the struggle ratcheted up after 1973 for reasons having little to do with the Supreme Court. Beginning in the mid-1970s, political party realignment accelerated. Socially conservative, evangelical Protestants mobilized to an unprecedented extent. Political operatives like Paul Weyrich and direct-mail guru Richard Viguerie used abortion to bring new voters into the Republican Party, as did then-presidential candidate Ronald Reagan. Pro-lifers had financial, ideological, and political reasons for partnering with the New Right. In forging a working relationship with social conservatives, abortion opponents took more extreme and consistently right-wing positions on a number of gender issues. In response, pro-choice leaders expressed skepticism about any effort to recognize fetal rights. For reasons having little to do with the Court, movement members, politicians, and political operatives deliberately and consistently made decisions that intensified abortion conflict.
Moving to the Right
As Daniel Williams has shown, the leaders of the emerging New Right viewed abortion as a promising wedge issue. The New Right, a name chosen by its leaders, emerged in the wake of the Watergate scandal. Weyrich, Viguerie, and their partners wanted to create a conservative movement outside the mainstream Republican Party. Social issues, like abortion, promised to win the support of Catholics, fundamentalist Christians, and others who conventionally voted for the Democratic Party.
The New Right intensified conflict about abortion for political ends. In 1979, Weyrich and Viguerie met with Jerry Falwell and other leading evangelical Protestants to craft a conservative political agenda that would suit the newly active base. In framing a pro-family agenda, Weyrich “proposed … that abortion be made the keystone of [a new] organizing strategy, since that was the issue that could divide the Democratic Party.” Weyrich and the New Right took a number of concrete steps to deepen public divisions about abortion. Weyrich helped to fund the formation of absolutist pro-life organizations, like the American Life Lobby, and a pro-life political action committee, the Life Amendment Political Action Committee (LAPAC), that worked to put abortion on the top of the national political agenda.
The abortion conflict also intensified as both political parties cemented their positions on abortion. During the 1976 presidential primary, incumbent Gerald Ford had identified as a moderate, refusing to take any position on a fetal-life amendment to the Constitution. By contrast, Ford’s opponent, Ronald Reagan, took a strong pro-life position, drawing on movement rhetoric and endorsing a fetal-life amendment. Although Ford defeated Reagan in the primary (and ultimately lost the election), Reagan’s commitments made him a “darling of abortion opponents.” His unsuccessful primary run made clear the potential of abortion as an election issue. Promising pro-life voters dramatic constitutional and social change would, the argument went, bring Republicans a large and energetic group of new voters.
Why was an alliance with the New Right and the Republican Party appealing to a diverse pro-life movement? As Part III suggests, some movement members endorsed welfare rights for women that would more easily fit in the Democratic, rather than Republican, party platform. Nonetheless, by the late 1970s, movement leaders had reason to join a larger conservative alliance. Financially, the New Right promised abortion opponents unprecedented support. Organizations like the Moral Majority and Christian Voice had an impressive financial record. At one point, in the late 1970s, the Moral Majority raised as much as $1 million a week. In 1978, the NRLC, the largest national pro-life organization, had debts as large as $25,000. Working with social conservatives promised to make the pro-life cause financially stable.
Political influence also seemed likely to follow from a partnership with social conservatives. After 1976, pro-life leaders like Carolyn Gerster of the NRLC and Paul Brown of the Life Amendment Political Action Committee began complaining about the difficulty of winning new Democratic supporters in Congress. By contrast, because of the influence of social conservatives, the Republican Party nominated Reagan, a pro-life stalwart, during the 1980 election season and endorsed an antiabortion constitutional amendment.
Working with the New Right and the Republican Party reshaped the pro-life movement’s agenda. Before partnering with social conservatives, many pro-life organizations took no formal position on the ERA. Later in the 1970s, convinced by antifeminists and New Right leaders that the Amendment would make it impossible to overrule Roe, pro-lifers condemned the Amendment. As other members of the New Right coalition worked to undo the impact of decisions by the Warren and Burger Courts, pro-lifers took up the cause of opposing judicial activism, signaling opposition to decisions on matters from school prayer to busing.
Political party realignment made the ACCL’s project much more challenging. For many in the pro-life movement, common ground involved the provision of welfare rights for women. Abortion opponents like Mecklenburg believed that women who chose abortion were vulnerable and deserving of state support.
During the 1980 election, however, Ronald Reagan tapped into public anxieties about the size, cost, and inefficiency of the welfare state. As Governor of California, Reagan had pioneered a “required work” program designed to cut the cost of entitlement programs, and during the 1980 election, both Reagan and incumbent Jimmy Carter agreed that the “welfare burden” had become “too onerous for local governments to bear.” Following his election, Reagan called for “fundamental reform” of entitlement programs, making support available only to the “truly needy.” In allying with the Republican Party and the New Right, the pro-life movement signed on to a small government agenda.
As importantly, the vision of women’s rights advanced by social conservatives differed dramatically from the ideas Mecklenburg had promoted. Later in the 1970s, in the campaign for the ERA, the New Right developed a different idea of women’s rights. Like Mecklenburg’s allies, ERA supporters believed that women and men were not yet equal. Led by antifeminist Phyllis Schlafly, the New Right instead contended that sex equality would harm, rather than help, women. In 1975, Schlafly contended that the ERA would “take away from women the rights they already have, such as the right of a wife to be supported by her husband, the right of a woman to be exempted from military combat, and your right, if you wanted it, to go to a single-sex college.” Pro-lifers gravitated toward this vision of women’s rights partly because Schlafly successfully argued-contrary to what many feminists maintained-that the ERA would strengthen abortion rights. Schlafly explained in 1977 that feminists would soon learn that ‘”the equal rights amendment and abortion are antifamily goals, and not what the American people want.”‘ That year, prominent abortion opponents began attending anti-ERA rallies and adopting a larger antifeminist agenda. ERA politics left little room for the vision of women’s rights advanced by pro-lifers seeking common ground. Schlafly’s battle suggested that abortion opponents could not compromise with feminists without sacrificing the unborn.
In this new climate, pro-life attorneys worked to redefine what reproductive choice meant to the movement. Rather than seeking other reproductive freedoms for women, pro-lifers could use the language of choice exclusively to undercut Roe. Beginning in the late 1970s, Americans United for Life (AUL), the pro-life movement’s leading public interest litigation firm, elaborated on this strategy in a string of victories in the courts. The AUL’s strategy assumed that Roe was good law but sought to narrow its protections. Describing abortion as a right to choose, in this account, meant that the state had a broader power to regulate abortion so long as women retained the ultimate decision. As the AUL’s brief explained: “If the abortion decision is so private… it follows that government shall not itself be compelled to respond to the demand of the exercise of that right.”
In the new pro-life movement, moderates’ campaign for reproductive choice appeared anomalous. Mecklenburg and her allies had demanded protections against sex discrimination, while the New Right argued that equality would be a step down for women. Advocates like Mecklenburg fought for the expansion of the welfare state that Reagan and the New Right intended to attack. Roe did little to undercut pro-life efforts to seek out compromise. However, later in the decade, changes to the political landscape made these efforts to find common ground more challenging.
As Part IV demonstrates, some in the pro-choice movement also sought consensus, exploring ways in which the state could protect fetal rights without undermining reproductive autonomy. By the early 1980s, pro-choice leaders viewed any fetal-protective law with much more skepticism. Two developments undermined any pro-choice interest in fetal rights. First, the New Right and the Religious Right made abortion part of a broader antifeminist agenda. In the new political climate, supporters of abortion rights more often saw fetal-protective laws as a vehicle for enforcing traditional gender roles. In the same period, abortion opponents promoted multirestriction laws designed to decrease access to abortion. These laws often included measures that protected fetuses outside the abortion context. Pro-choice activists began to oppose any fetal protective law, viewing such measures as an attack on Roe.
Pro-Life and Antifeminist
Before the late 1970s, the pro-life movement had an ambiguous relationship with second-wave feminism. Major organizations like the National Right to Life Committee (NRLC) took no position on major feminist reforms like the ERA. Other organizations, like Feminists for Life, actively campaigned for the Amendment and laws allowing married women to take credit in their names. Even pro-choice activists viewed the pro-life movement as theocratic rather than antifeminist, imposing one set of religious beliefs on the rest of the country.
In working with the New Right, the pro-life movement radically revised its positions. In the late 1970s, organizations like the NRLC came out against the ERA and campaigned against funding for feminist conferences like the one celebrating International Women’s Year. Pro-lifers’ alliance with the New Right made antiabortion activism appear synonymous with social conservatism. Pro-choice activists began to conclude that antifeminism motivated abortion opponents rather than religion or fetal rights. In a January 1978 fundraising letter, for example, NOW President Eleanor Smeal warned of “[a] major attack on [women’s] rights.” In a New York Times editorial in June 1978, former NARAL leader Larry Lader presented the pro-life movement as an offshoot of far-right radicalism. In 1980, Planned Parenthood President Faye Wattleton described abortion opponents as “an increasingly vocal and at times violent minority which seeks to deny all of us our fundamental rights of privacy and individual decision-making.” To many in the pro-choice movement, pro-lifers’ partnership with the New Right made fetalrights rhetoric appear to be nothing more than an effective repackaging of sexist views.
The new strategy adopted by pro-lifers reinforced this impression. Beginning in the mid-1970s, abortion opponents worked harder to promote multipart laws restricting access to abortion. Statutes and city ordinances required informed consent, spousal and parental consent. Other laws prohibited saline abortions, required life-saving fetal care after an abortion, or defined fetal viability more narrowly than had the Roe Court. These laws framed all fetal-protective measures as efforts to ban abortion.
These efforts raised concerns that pro-lifers would use any recognition of fetal rights to attack Roe. If fetal-protective laws set a precedent for efforts to undermine abortion, the pro-choice movement could not support fetal rights without weakening the foundation for abortion rights.
Immediately after Roe, activists on both sides of the abortion issue believed that compromise was both possible and desirable. The escalation of conflict came later, with little input from the courts. In the late 1970s, political party realignment that began before Roe accelerated. With the emergence of the New Right and the Religious Right, the Republican Party adopted a robust social conservatism, and the pro-life movement gained powerful new partners. Political reordering created new obstacles for those seeking common ground.
The history of Roe’s aftermath spotlights the influence of nonjudicial actors on post-Roe polarization. If we focus less exclusively on the Court, what difference does it make to contemporary scholarship? Part VI takes up this question next.
VI. Roe and the Consequences of Judicial Review
Backlash arguments address the consequences of asking too much of the courts. Backlash theorists use history to caution social movements against overreliance on the courts. Roe, however, serves as an example of the dangers faced by courts as well as by activists. Using Roe as a paradigm, beyond backlash arguments illustrate the harms that judicial decisions can do to both the authority of the Court and to the larger society. In particular, scholars point to post-Roe polarization as a cost of judicial intervention in abortion politics. By moving too fast, the Court alienated the pro-life movement, undid promising compromises, and hopelessly radicalized discussion.
Reasoning from Roe, legal scholars have developed a compelling account of the political costs of different interpretive methods. Richard Posner sees Roe as an example of the damage done by courts that reject or misunderstand pragmatism. Pragmatism asks the courts to consider, among other things, how to formulate opinions with desirable consequences. A more pragmatic Court, Posner predicts, would have arrived at a solution that would have commanded widespread support. Cass Sunstein similarly uses Roe to showcase the benefits of an alternative theory that he calls minimalism. Because Roe came down at a time when abortion was still divisive, the Court made a mistake by issuing a broad and philosophical ruling. Roe’s sweep undercut a process of state-by-state negotiation that could have lowered the temperature of debate and provided more opportunities for compromise.
William Eskridge also views Roe as a prime source of polarization. Eskridge advises the courts to craft decisions that lower the stakes of ordinary politics and facilitate democratic deliberation. In issuing a far-reaching decision before any consensus formed, Roe convinced pro-life Americans that they could not accomplish their goals through working in ordinary politics. By alienating so many activists, Eskridge suggests, Roe unnecessarily escalated the abortion conflict.
Scholars like Eskridge, Sunstein, and Posner further use Roe in issuing prescriptions for courts concerned with the social and political costs of judicial review. As the Article has shown, however, the narrative on which they rely is flawed. The radicalization of abortion politics occurred gradually and in response to more than the Court’s decision. In the late 1960s and 1970s, abortion became a national political question, and leading Republican operatives used it to court new voters. Other scholars have shown that Roe alone did not produce hopelessly divided abortion politics. This Article adds a new dimension to the discussion by showing that, for almost a decade after the decision, abortion politics little resembled the bitter, dysfunctional debate with which so many have found fault.
To activists on both sides of the abortion issue, compromise seemed not only possible but strategically crucial. In the 1970s, pro-choice activists conducted a thoughtful conversation about whether and how fetal rights and women’s rights could coexist. Supporters of abortion rights imagined fetal rights to financial support, informed consent by proxy, and a chance of survival. At the same time, these advocates reaffirmed their support for women’s right to the safest abortion procedure available. Roe did not obscure potential differences between abortion and questions of fetal rights ex utero.
Some pro-life advocates also sought common ground in response to Roe. Far from arguing that there was no right to reproductive choice, moderate abortion opponents instead reworked the idea of privacy advanced by the Roe Court. These activists rejected the idea that a right to choose covered abortion. In other ways, however, they demanded broader reproductive rights than those set forth in Roe. As moderates framed it, reproductive choice required state support for motherhoodpublic funding for day care, contraception, and health care, to be sure, but also protections against sex and pregnancy discrimination.
Legal scholars urge judges to use Roe’s history in measuring the consequences of any potential decision. As the Article shows, however, we have mistakenly blamed Roe for events that occurred later and partly without the influence of the courts. Insofar as Roe offers an example, beyond backlash arguments exaggerate the influence of judicial decisions, neglecting the impact, motives, and negotiations of nonjudicial actors. That is not to say that judicial decisions do not matter or that legal scholars should not study the consequences of different modes of decision making. If Roe teaches us anything, however, it is that the courts play only one part in a much more complex process.
More accurately assessing Roe’s significance makes apparent new questions about abortion law and judicial review. Did Roe have any negative impact on abortion politics, albeit one less central than we might have previously believed? How did we come to believe that Roe produced a depressingly radicalized debate so much earlier and so much more thoroughly than is the case? A better historical understanding of consensus-seeking efforts after Roe is only the beginning of this inquiry.
This Article suggests that any lessons offered by Roe’s history for students of judicial review are more complex and less predictive than we have often thought. On its own, the Court did not cause and could hardly have anticipated the polarization of gender politics in the early 1980s. If judges wish to learn from Roe’s aftermath, the lesson is not a simple one involving the costs of judicial decisions that do too much too soon. If anything, Roe’s history suggests that legal academics need to attend better to the influence of nonjudicial actors on constitutional politics and on the meaning of blockbuster judicial decisions.
The history of compromise in the wake of Roe also provides a much needed dose of optimism about the future prospects in the abortion wars. For different reasons, Justices Scalia and Ginsburg describe Roe as an obstacle to the creation of a more rational and collaborative abortion debate. Since the 1973 decision, the argument goes, nonjudicial actors have substantially less power to lower the stakes of abortion politics. The history examined here offers a more hopeful story. After Roe, activists on both sides of the abortion issue followed creative paths toward compromise. The Court did not make these projects impossible to pursue. By extension, when the abortion battle intensified, a variety of nonjudicial actors, including politicians, activists, and operatives, shared responsibility. The world of 1970s abortion politics is in many ways removed from our own. Nonetheless, the story of Roe’s aftermath suggests that we can do more than we think to lower the temperature of the abortion wars.
Finally, the history of responses to Roe foregrounds the importance of legal solutions related to, but separate from, abortion. In the 1970s, compromise-minded activists appeared as unwilling to negotiate about the scope of abortion rights as are any advocates today. Nonetheless, for many on either side of the issue, Roe made more urgent the search for legal solutions that would lower the stakes of the abortion wars. Abortion opponents primarily looked for ways to reduce the need for abortion, both by targeting discrimination against women and by ensuring that women had adequate resources to support themselves. Pro-choice advocates searched for ways to dignify fetal life that would not directly undermine abortion rights.
Both strategies may have some promise today. Since at least the 1990s, leading voices in the pro-life movement have argued for the importance of demonstrating concern for women as well as for unborn children. On the pro-choice side, some organizations representing abortion providers have called for a more nuanced discussion of fetal life and fetal dignity.
For the most part, however, activists have argued that the other side’s position on abortion has destructive effects. Recently, with the advent of what Reva Siegel calls woman-protective antiabortion arguments, pro-lifers have stressed the ways in which abortion harms women. Since the early 1970s, pro-choice activists have asserted that abortion bans are anti-life and antichild, harming children who are born to parents who do not want or cannot adequately provide for them. If anything, these arguments have exacerbated abortion conflict. Woman-protective arguments not only justify abortion restrictions but also draw on sex stereotypes that are offensive to many in the pro-choice movement. In turn, pro-choice arguments about the damage done to unwanted children do not square with pro-life claims that all lives, particularly those of the disabled, are equally worthy.
Social-movement responses to Roe suggest that compromise on related gender issues may be easier to achieve. Pro-life organizations like All Our Lives endorse access to contraception or legislation protecting women against domestic violence-goals endorsed by many feminist and pro-choice organizations. It may still be possible to create the kind of solution Roe supposedly destroyed.
VII. Conclusion
Can courts fuel social change? In answering this question, legal scholars and members of the Supreme Court turn to reactions to Roe. For backlash theorists, Roe illustrates the ways in which judicial decisions can set back a cause the Justices endorse. For other observers, Roe serves as an example of the damage judicial review can do the larger society. According to this account, opinions that do too much too soon produce polarization, undermine productive negotiations, and deform social-movement politics.
This Article offers a more nuanced perspective on the role played by the Court in gender politics. Far from putting an end to efforts to identify common ground, Roe intensified attempts made by some pro-choice and pro-life activists to find some form of consensus. When these efforts stalled, a variety of nonjudicial actors had at least as much responsibility as the Court.
Forty years later after it was decided, Roe remains one of the most iconic and impactful Supreme Court decisions of the past century-a touchstone for those seeking to understand the Court’s role in American politics. We are right to believe that Roe matters, but in attributing so much about contemporary politics to the Court’s decision, we have lost sight of the world left in Roe’s wake and the reasons for its disappearance. What, then, does Roe remind us? The lesson does not simply involve the influence of judicial review or the intractable polarization of the abortion debate. If Roe should serve as a symbol of anything, it is the complex interplay between party politics, social-movement strategy, and Supreme Court politics. By building on a deeper understanding of Roe’s history, we will better able to understand that complexity.