Reinterpreting Roe v. Wade
Harvard Magazine, November 5, 2010
Americans asked to name any Supreme Court decision are eight times more likely to name Roe v. Wade than Brown v. Board of Education. "Why? It comes to mind because over the past 37 years, Roe versus Wade has become synonymous with political controversy and has generated profound social conflict," Linda Greenhouse '68 explained in a speech November 4 at the Radcliffe Institute for Advanced Study.
But this was a conflict that had emerged before the Supreme Court said a word, argued Greenhouse, the longtime Supreme Court reporter for the New York Times (and now a member of Harvard's Board of Overseers), and Reva Siegel, a legal historian at Yale who gave the Rothschild Lecture alongside Greenhouse. The two speakers' recently published collaboration, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling, anthologizes original documents from the early 1960s to 1973, and suggests reconsidering the conventional narrative of the court case and the backlash it created. "We have some real questions about that," said Greenhouse.
"It's assumed today that a group of feminists woke up and said, 'We want the right to abortion. Let's go to court,'" she continued. The development of abortion discourse, however, was much more complex. Greenhouse reminded the audience that at the founding of the country, abortion was not a crime, and that several states legalized the practice again during the buildup to the landmark January 1973 court decision.
According to Greenhouse and Siegel, public-health concerns first prompted an inquiry into allowing legal abortion. During the decade before Roe v. Wade, there were as many as two million illegal abortions a year, and "The impact of this practice fell disproportionately on women of color and poor women," said Greenhouse. The early environmental movement also stepped into the abortion dialogue, advocating for a way to separate sex from procreation because of population-control concerns.
"The feminist claims came in rather late and were different in character," Greenhouse explained: as the discussion shifted from public-health considerations to demands for recognition of women's dignity and authority, the social meaning of abortion changed, too. Understanding this development is also key to understanding the counter-mobilization to legalized abortion. "It was not a response to the Court," said Greenhouse. The first outcries against abortion came from the Catholic Church—not Evangelical Christians, who, Greenhouse pointed out, "were open to modest reforms."
The opposition movement gained traction, Siegel then explained, as the Republican Party began using abortion as a strategy for winning over Catholic voters, who had historically voted Democratic. Richard Nixon (counseled by his adviser Pat Buchanan) used the abortion issue to provoke anxiety about changing societal values and expand the party's voting base.
Abortion's current status as a deeply partisan issue is a recent development, Siegel noted, citing a Gallup poll from August 1972: 64 percent of voters agreed that the decision to have an abortion should be made solely by a woman and her physician. More Republicans than Democrats, she said, affirmed the statement.
A reconsideration of the lead-up to Roe v. Wade has important implications for both the history of abortion law and the history of judicial review itself, according to Siegel. Over the ensuing decades, she said, abortion has become more and more political, and this is conventionally assumed to have been a product of the court decision: many legal historians and commentators have pointed to Roe v. Wade as an overly divisive case. New York Times columnist David Brooks once wrote: "Justice Harry Blackmun did more inadvertent damage to our democracy than any other twentieth-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since."
But there are "many unexplained facts" about the case, Siegel stressed—from the fact that it was supported by justices whom Nixon nominated to the Court, to the fact that large-scale campaigns against abortion did not become a focus for the Republican Party until the late 1970s.
The speakers said they hoped that reconsidering these facts would help future scholars understand the role of courts in a constitutional democracy. "We are inviting scholarly inquiry into how courts do matter," said Siegel. "There's a lot of historical reconstruction to be done here."