Bridging the great divide - a response to Linda Greenhouse and Reva B. Siegel's 'Before (and after) Roe v. Wade: new questions about backlash'.

• Author: Inniss, Lolita Buckner
• Position: Yale Law Journal, vol. 120, p. 2028, June 2011

1. Introduction

   I agree with Linda Greenhouse and Reva B. Siegel's assertion that identifying Roe v. Wade (1) as the inchoative point of the abortion debate trajectory misapprehends the full scope and nature of the debate and unduly focuses on judicial actors. (2) However, the before and after model that they embrace is perhaps not the most efficacious way of diagramming what has occurred in relation to abortion politics in the United States. The question is not only, I suggest, what happened before or after Roe. A more encompassing inquiry focuses on what factors are imbricated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. Two significant factors in the bigger picture are race and class.

   It is true that Roe has become generally synonymous with political conflict. (3) It is also true that Roe is frequently cited as the source of political polarization over abortion and therefore functions as the "great divide" in addressing the social and political tenor of women's reproductive rights in the United States. (4) Thus, one of the most frequently occurring themes in discussing legal access to abortion is the dichotomy between conditions before abortion was made available throughout the United States via Roe and conditions after the ruling. (5) Because before and after themes often signal the ameliorative or pejorative dimensions of a process or cause and effect, this type of thematic address primes the reader for a linear, temporal account of change. Greenhouse and Siegel adopt such a theme in their recent Article. In doing so, however, they seek to de-center Roe, contending that partisan politics before Roe, and not disagreement with the Supreme Court's decision after Roe, is significantly responsible for the contemporary backlash against abortion. (6) They offer a political and historical account of what is frequently expressed in legal terms, explaining that the legal ruling in Roe was not the catalyst of the social and political storm surrounding abortion. Instead, Greenhouse and Siegel aver, the decision in Roe is part of the broader conflict over abortion that existed before Roe was decided. (7)

   At the heart of Greenhouse and Siegel's argument is the claim that in the years immediately before Roe, strategists for the Republican Party encouraged President Nixon to attack abortion and to articulate antiabortion positions. (8) The purpose of the attack was in order to draw Catholic voters away from their traditional Democratic alliances. Republican embrace of anti-abortion stances was a method of attracting social conservatives, especially Catholics, who eschewed "radical" groups and policies supported by Democratic candidates. (9) Greenhouse and Siegel, as they make clear in their Article, do not urge that the Supreme Court's decision in Roe played no role in the abortion conflict. (10) Rather, they assert that pre-Roe abortion conflicts, and the resulting shifting alignments of political actors, are important keys to understanding the United States abortion debate. (11) Hence, write Greenhouse and Siegel, these matters and related issues in the period before Roe are worthy of further scholarly examination. (12)

   By naming party politics and the Catholic Church, the authors posit two crucial elements that shaped the abortion debate. However, what is not discussed in their Article is the way that numerous other factors have figured into the debate, race and class being two of the most salient. Race, class, and abortion have interacted in complex and numerous ways throughout United States history. While this interaction in some respects can be described via a linear, historical approach, it is not fully explicated by a single dichotomous before/after analysis centered on Roe. Instead, race, class, and abortion are constantly interacting, sometimes co-constructed, constituent parts of a much greater social, cultural, and political conversation in the United States.

   In the Article, the authors propound their arguments in three parts. In Part I of their Article, they consider four claims and frames that shape the way in which abortion was discussed before Roe: public health, concerns for the environment and population, sexual freedom, and finally feminist voices. (13) In Part II, the authors describe how abortion politics became a part of a political strategy as Republicans, who had often been among the supporters of abortion liberalization before Roe, began to articulate antiabortion points of view. (14) This shift, they explain, was largely in order to attract socially conservative and/or religious voters away from the Democratic Party. (15) Finally, in Part III of the Article, the authors survey popular and academic commentary that position the Roe case as the legal and political polestar of the debate on abortion. (16) I suggest that if national party politics and the Catholic Church are important aspects of the development of the United States narrative on abortion, then race and class are telling and even compelling subtexts in that narrative. Giving attention to these subtextual strands may offer valuable additional insights.

2. The Discourse of Abortion

   In Part I of their Article, the authors point out that although most contemporary meanings of abortion center on Roe, the discursive import of abortion changed in structure, meaning, and intensity well prior to Roe. While...