Before (and after) Roe v. Wade: new questions about backlash.

AuthorGreenhouse, Linda

FEATURE CONTENTS I. ABORTION'S MANY MEANINGS: CLAIMS AND FRAMES BEFORE ROE A. Public Health B. Environment and Population C. Sexual Freedom D. Feminist Voices II. CONFLICT BEFORE ROE A. The Catholic Church's Opposition to Legislative Reform B. Party Realignment: Republican Efforts To Recruit Catholic Votes in the 1972. Presidential Campaign C. Abortion and Party Realignment III. BLAMING ROE: JURICENTRIC AND POLITICAL ACCOUNTS OF CONFLICT A. Claims About Roe B. Court-Centered and Political Accounts of Conflict: Some Questions CONCLUSION When asked to name a case that the Supreme Court has decided, most Americans who can name one point to Roe v. Wade (1)--a case that they are eight times more likely to name than Brown v. Board of Education. (2) Roe has become nearly synonymous with political conflict. Hearing closing arguments in California's same-sex marriage case, the presiding judge, Vaughn Walker, worried about provoking backlash and pointed to the Court's abortion decision, which he suggested had engendered conflict that had "plagued our politics for 30 years." (3) Like many, Judge Walker attributed political polarization over abortion to the Supreme Court's decision in Roe. David Brooks charges: "Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-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." (4) Yet few who invoke "Roe rage" (5) have actually examined its roots. What might the conflict over abortion before Roe reveal about the conflict that escalated after the Court ruled?

We have recently published a documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling, (6) that offers a fresh perspective on the genesis of the abortion conflict. This paper draws on pre-Roe sources that we collected for out book, as well as some evidence from the decade immediately after the decision, to raise questions about the conventional assumption that the Court's decision in Roe is responsible for political polarization over abortion. (7) By examining the conflict in the period before the Court ruled, we can see how the abortion conflict changed in meaning, structure, and intensity as it was joined by a successive array of advocates--not only social movements (8) and the Catholic Church (9) but also strategists for the Republican Party seeking to attract traditionally Democratic voters in the 1972 presidential campaign. (10) The evidence that we uncover of abortion's entanglement in party realignment before the Supreme Court handed down its decision in Roe demonstrates that the competition of political parties for voters supplies an independent institutional basis for conflict over abortion. Where proponents of a Court-centered account of backlash offer reasons that adjudication distinctively causes political conflict, the history that we analyze identifies forms of political conflict that could engulf adjudication.

In the summer before Roe, a newspaper column about a new Gallup poll preserved in Justice Blackmun's case file reported that sixty-four percent of Americans (and fifty-six percent of Catholics) agreed "with the statement that 'the decision to have an abortion should be made solely by a woman and her physician'"--with "a greater proportion of Republicans (68 per cent) ... than Democrats (59 per cent) holding the belief that abortion should be a decision between a woman and her physician." (11) Consistent with these findings, Roe was an opinion written and supported by Justices whom a Republican president had recently appointed. (12) Indeed, it was at the urging of one of Richard Nixon's most recent appointees, Justice Lewis F. Powell, Jr., that the seven-Justice majority in Roe extended constitutional protection from the first to the second trimester of pregnancy, until the point of fetal viability. (13) To say the least, these legal-political alignments invert contemporary expectations, in Alice-in-Wonderland fashion.

How have we moved from a world in which Republicans led the way in the decriminalization of abortion to one in which Republicans call for the recriminalization of abortion? The backlash narrative conventionally identifies the Supreme Court's decision as the cause of polarizing conflict and imagines backlash as arising in response to the Court repressing politics. (14) In contrast to this Court-centered account of backlash, the history that we examine shows how conflict over abortion escalated through the interaction of other institutions before the Court ruled.

There is now a small but growing body of scholarship questioning whether abortion backlash has been provoked primarily by adjudication. Gene Burns, David Garrow, Scott Lemieux, and Laurence Tribe show that, in the decade before Roe, the enactment of laves liberalizing access to abortion provoked energetic opposition by the Catholic Church. (15) We offer fresh evidence to substantiate these claims, as well as new evidence about conflict before Roe that points to an alternative institutional basis for the political polarization around abortion--the national party system.

Through sources in out book and in this paper, we demonstrate that the abortion issue was entangled in a struggle over political party alignment before the Supreme Court decided Roe. As repeal of abortion laws became an issue that Catholics opposed and feminists supported, strategists for the Republican Party began to employ arguments about abortion in the campaign for the 1972 presidential election. We show how, in the several years before Roe, strategists for the Republican Party encouraged President Nixon to begin attacking abortion as a way (1) to attract Catholic voters from their historic alignment with the Democratic Party and (2) to attract social conservatives, by tarring George McGovern, Nixon's opponent in the 1972 presidential election, as a radical for his associations with youth movements, including feminists seeking ratification of the Equal Rights Amendment (ERA) and "abortion on demand." (16) In reconstructing this episode, we show how strategists for the national political parties had interests in the abortion issue that diverged from single-issue movement actors, and we document some of the bridging narratives that party strategists used to connect the abortion conflict to other controversies.

The material that we present contributes to the history of the abortion debate in the decade before Roe. At the same time, it sheds light on the conflict over abortion that grew in the decades after the Court ruled. We do hot contend that conflict before Roe caused conflict after Roe. Rather, the pre-Roe history that we chronicle is significant, among other reasons, because it demonstrates the motivations that different actors had for engaging in conflict over abortion at a time when their engagement cannot be construed as a reaction to the Court. As different groups joined and changed the stakes of the abortion conflict, conflict escalated without the intermediation of judicial review.

Understanding the dynamics of conflict before Roe changes the questions that we might ask of the record after Roe. The dynamics of conflict before the Court ruled suggest many reasons to explore the role played by nonjudicial actors and institutions in helping make the Supreme Court's decision notorious as a source of polarization. In particular, it raises the question of how the competition of the national political parties for voters might have shaped reception of the decision. "Roe" is now a shorthand reference for positions staked out in long-running debates over gender, religion, and politics. But is the decision a cause or a symbol of these conflicts? We conclude the paper with a call for scholarly inquiry, in the hope that this history of the abortion conflict before Roe demonstrates why facts matter in any conversation about Roe as an exemplar of the possibilities and limits of judicial review.

Part I of the paper offers a brief account of the genesis of the abortion controversy in the decade before Roe, in which we show how abortion's meaning shifted continuously as new participants joined the conflict in the 1960s, moving the argument from public health frames to environmental and population concerns and finally to feminist claims for outright repeal of laws criminalizing abortion. Part II examines how, in the years before Roe, these successive waves of arguments prompted growing public support for liberalizing access to abortion--and, in turn, provoked political reaction, first by the Catholic Church and then by strategists for the Republican Party seeking to persuade Democratic Catholic voters and social conservatives to vote for Richard Nixon in the 1972 presidential election. Even so, as Part II demonstrates, with the interruption of Watergate it was not until the late 1970s that Republican strategists resumed their focus on the abortion issue as a strategy for recruiting Democratic voters and it was not until the late 1980s that partisan conflict over abortion assumed its now-familiar shape, with more Republicans than Democrats opposing abortion.

It is now widely taken for granted that Roe caused escalating conflict over abortion. Part III surveys expressions of this "common-sense" understanding in the popular media and the academy, where Roe is regularly invoked as the sole and sufficient cause of political polarization around abortion. The history of abortion conflict in the years before Roe offers a rich counterpoint as it illustrates motives for conflict emanating from institutions other than the Court. Attuned to these alternative institutional bases for conflict over abortion, we can pick out features of the post-Roe landscape that raise deep questions about the sufficiency of Court-centered accounts of...

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