After Roe:
The Lost History of the Abortion Debate
by mary ziegler
harvard university press, 400 pages, $39.95
On the 40th anniversary of Roe v. Wade, the Supreme Court’s 1973 decision legalizing abortion, Justice Ruth Bader Ginsburg announced her misgivings about the ruling. As a distinguished champion of what the left euphemistically calls “reproductive rights,” Justice Ginsburg was never going to critique the decision on moral grounds; the problem for Ginsburg, rather, was tactical. In her eyes, by running ahead of the people, the now-infamous 1973 decision gave “opponents of access to abortion a target to aim at relentlessly.”
Justice Ginsburg’s claim is one of the many post-Roe myths exploded by legal historian Mary Ziegler in After Roe. Perhaps the language of “myths exploded” is a bit strong— “inaccuracies revealed” is closer to the argumentative tenor of Ziegler’s work. But however we characterize it, the chief value of After Roe lies in the corrective it offers of various false or misleading narratives about our post-1973 abortion debate. Ziegler’s deep dive into the archives, like any good historical investigation, clarifies the causal relationships. The research conclusively shows that, contrary to popular convention and to the studied opinion of a Supreme Court justice who has made this issue a part of her life’s work, anti-abortion activists did not respond to Roe with charges of judicial overreach. Instead, they sought to constitutionalize their position through judicial embrace of a new right-to-life amendment. Ziegler writes: “[F]or the better part of a decade after the Court’s decision, the vast majority of lawyers, law professors, and grassroots activists in the antiabortion movement opposed efforts to strip the Court of its authority or to return the abortion question to democratic politics. . . . Indeed, pro-lifers wanted the courts to act boldly to protect fetal rights not spelled out in the text of the Constitution” (28).
The prevailing narrative about Roe is that by relying on judicial intervention, rather than normal legislative procedure, the parties arguing over abortion rights degenerated into what Laurence Tribe called a “clash of absolutes”—a scenario characterized by deep polarization organized around the pro-life/pro-choice division. Ziegler’s contention is that it wasn’t the Roe ruling by itself, but rather post-Roe decisions and actions on the part of activists that aggravated the debate. Several decisions and actions that were themselves spurred by broad social changes taking place at the time led to this deep polarization and partisan entrenchment. Although the Court’s decision did “help to reorient movement priorities,” Ziegler explains that the 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” (xv).
Ziegler shows that in the middle to late 1970s, a time in which party identification did not determine one’s position on abortion to the degree that it does today, Republican strategists realized they could make astonishing electoral gains by hardening the party’s stance against abortion. The fit between a Republican party increasingly gravitating toward a more robust conservatism and the pro-life movement seemed natural, and for party leaders, worth pursuing. Meanwhile, as the Republican party was courting swing voters with strong anti-abortion sympathies, these voters saw in great value in consolidating their political power into support for one party. Once the pro-life movement understood that the attempt to achieve constitutional protection for the unborn would not succeed, and as information came out that the Carter administration screened out judicial candidates opposed to abortion, pro-life advocates saw a need to reshape the Courts through the mechanism of presidential politics. So they coalesced around the Republican party and around Ronald Reagan, who in 1976 came out against abortion and in the 1980 election vocalized a strong pro-life stance. Ideologically, there had already existed an affinity between conservatism and anti-abortionism, but as Ziegler shows, these social currents strengthened and deepened the bond between the Republican party and the pro-life movement.
The historical process Ziegler outlines took an inverse form in Justice Anthony Kennedy’s reasoning in the recent Obergefell v. Hodges ruling. In Obergefell, Kennedy’s claim was that although historically the interpretation of a fundamental right to marry has not included same-sex couples, the “referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts” has led to an “enhanced understanding” of how the Due Process and Equal Protection clauses of the 14th amendment contain a right for same-sex couples to marry that was really there all along, though until now unseen. According to Kennedy, our deliberations have led to greater constitutional clarity. In the case of Roe, it was the decision that came first, which then, according to Ziegler, led to social movement realignment. Roe forced activists and politicians to develop their stance on a wide variety of issues concerning “human life, sex roles, sexuality, and the role of the judiciary” (xv).
If there is one gripe with Ziegler’s account, it’s that she doesn’t register continued moral and philosophical reasoning as a significant factor in the conservative embrace of the pro-life position. On pages 201-205, Ziegler explains the mature pro-life position as arising from political and financial exigencies, but this downplays the considerable power that theological reflection produces within the religious right’s self-understanding. Just two years prior to the Roe decision, the philosopher John Rawls had deployed a concept in his A Theory of Justice called “reflective equilibrium,” which largely has to do with the epistemological dynamics of arriving at a new, more “considered” belief in light of beliefs already held. When a social group or political party embraces a position and maintains its commitment to it beyond a threshold of faddishness, when a cause becomes permanently entrenched within a group’s self-understanding, a likely explanation turns to moral and philosophical grounds, not an embrace born and preserved out of expediency. It took a while for some to appreciate the contours of the debate, but in the decades after Roe v. Wade, there came to be a gradual appreciation of the deep connection between the Judeo-Christian framework and full-throated opposition to most forms of abortion.
In the end, conservatives were always going to arrive at this position; whether the catalyst turned out to be Roe v. Wade, as popular belief has it, or the political allure of appealing to electorally useful social blocs, as Ziegler suggests. Whatever the mechanism taking them there, as soon as religious conservatives would begin to consider the intricacies of the abortion question, they would eventually (and, indeed, inexorably) arrive at an ardent anti-abortionism.
Berny Belvedere is a professor of philosophy and a writer based in Miami, Florida.
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