After Roe: The Lost History of the Abortion Debate. By Mary Ziegler. Cambridge: Harvard University Press. 2015. Pp. xxiv, 367. $39.95.
The petitioners in last year's historic same-sex marriage case cited most of the Supreme Court's canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control (1) and the right to guide the upbringing of one's children, (2) was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. (3) Not once, however, did the petitioners or the majority in Obergefell cite the Court's most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade. (4)
To understand why both sides in Obergefell treated Roe as a negative precedent for judicial recognition of same-sex marriage, it is necessary to look beyond Roe itself to the familiar narrative--about judicial activism, countermajoritarianism, and backlash--in which it is embedded. As Chief Justice Roberts recounted in his Obergefell dissent: by intervening in the debate over abortion in 1973, the Court got out ahead of the American people and short-circuited the democratic process. (5) In the early 1970s, "[t]he political process was moving" (6) on abortion; states were beginning to repeal statutory bans. But just as this process was getting underway, the Court stepped in, finding in the Constitution a right to abortion not previously recognized there. The Chief Justice, quoting his colleague Ruth Bader Ginsburg, explained that such "[h]eavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." (7) That is a mild version of the claim. Here is a stronger one: "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...." (8)
One can understand, in light of this story, why proponents of same-sex marriage might have wanted to distance their case from Roe. Roe functions today, for the Left as much as the Right, as a cautionary tale--a parable about what happens when the Court steps in too soon, does too much, and shuts down democratic debate on an issue about which Americans are deeply divided. Many on the left have concluded that Roe was in fact counterproductive because it "spawned a right-to-life opposition which did not previously exist." (9) This oppositional movement is credited with fueling the rise of the New Right and paving Ronald Reagan's path to the White House. (10) The moral of this story, many have concluded, is that progressives should proceed with caution where courts are concerned. (11) Better to pursue progressive ends through the legislature, where victories are democratic and the risk of backlash is lower. As Roe shows, winning via judicial fiat is often not worth the cost.
This story about Roe is so well ingrained in popular and scholarly discourse that it has persisted despite increasingly compelling evidence that it is not true. Take, for example, the claim that Roe triggered a major backlash because the Court got out ahead of the American people. Polls in the decade before the decision show a dramatic increase in support for the legalization of abortion. (12) By the time the Court entered the fray, a solid majority of Americans believed abortion should be legal; a Gallup poll taken six months before the decision reported 64 percent in favor of legalization. (13) Polling after Roe indicated that the Court's decision did nothing to reduce support for this position. (14) Noted pollster Louis Harris concluded in (1975) that "[t]here is no doubt that the U.S. Supreme Court decision solidified public support for legalizing abortions." (15)
Furthermore, many of the constituencies associated with the pro-life backlash Roe purportedly caused were far from uniformly anti-abortion at the time of the Court's decision. (16) Until the end of the 1970s, Republicans in Congress voted pro-choice more often than their Democratic colleagues; (17) among the American people, Republicans did not become more pro-life than Democrats until a decade later. (18) The Republican Party's critique of the Court in its 1976 platform was mild and called for a continuation of public debate on abortion, apparently recognizing that the party was not united behind a pro-life position. (19) Nor were conservative Protestants--including Southern Baptists and other evangelicals--committed to, or even particularly involved in, the pro-life cause in the years immediately following Roe. (20) Jerry Falwell, founder of the Moral Majority, did not begin preaching on abortion until the late 1970s, (21) and the Southern Baptist Convention did not profess categorical opposition to abortion until 1980. (22)
If Roe did not spark these developments, what did? Over the last few years, in a series of articles (23) and a book entitled Before Roe v. Wade, (24) Linda Greenhouse and Reva Siegel have argued that abortion-related backlash predated Roe and was a response to the actions of state legislatures rather than the Court. In the late 1960s, a small handful of states repealed their abortion statutes and in so doing mobilized an embryonic but determined pro-life movement. This movement brought the trend toward the liberalization of abortion laws to a swift halt, even though opposition to abortion remained concentrated among Catholics and most Americans continued to support increasing access to the procedure. The movement's success attracted the attention of Republican strategists on the lookout for issues they could use to entice traditional Democratic voters--particularly Catholics--to switch their party affiliation. By 1972, Greenhouse and Siegel argue, these strategists had already made abortion a national political issue. Within a decade, through the skillful deployment of abortion and other issues, they had fostered one of the greatest political realignments in American history.
Part I of this Review focuses on common assumptions about Roe and abortion-related backlash that Greenhouse and Siegel upend. They show, for instance, that Roe was not countermajoritarian--that, in fact, the Court's decision brought about majoritarian change that could not occur in state legislatures because lawmakers had grown reluctant to oppose a passionate, well-organized, minoritarian interest group. (25) They also show that the real backlash--the backlash that gave rise to the pro-life movement and inspired a political strategy that put abortion at the center of American politics--came in reaction to changes made by democratically elected state officials, not by courts. This backlash occurred before and independent of judicial review of the abortion question.
Part II examines why and how, given this history, so many Americans have come to believe the story about Roe Chief Justice Roberts tells in Obergefell. For answers to this question, Part II turns to Mary Ziegler's new book, After Roe: The Lost History of the Abortion Debate. (26) As her title suggests, Ziegler focuses on the decade after the Court's decision. Greenhouse and Siegel have shown that the incentive structure that prompted Republican strategists to go after Catholic and other potential "values" voters, and to use abortion to do it, existed prior to Roe and was strong even without the decision. Ziegler's primary contribution to this history is to show how Republican strategists deployed accusations of judicial activism--not at the time the Court issued its decision, but years later--to link anti-abortion politics to other threads of New Right politics and thereby unite the various constituencies they were courting behind a new common enemy: the Court. Over time, and due to the remarkable success of this new brand of conservatism, the portrayal of Roe as countermajoritarian--a portrayal more ideologically driven than historically accurate--assumed the mantle of truth.
Part III examines the stakes of these new revisionist accounts of Roe. What if the backlash narrative, long taken for granted by people across the political spectrum, does not withstand historical scrutiny? What if, in fact, that narrative began life as a political construct--an ideological claim, an organizing tool--but came over time to be taken as a description of historical reality? At the very least, it would mean that this is not the only story we might tell about Roe--that there are other accounts of Roe that might cast the case and its implications in a different light. The only way to evaluate these possibilities is to put what we think we know about Roe to one side and look again at the history. If progressives, in particular, are going to draw consequential lessons from Roe about the dangers of pursuing their aims in court, they had better be sure they've got the story right.
THE NEW SCHOLARSHIP
The notion that Roe triggered a substantial popular backlash has persisted for years in the face of evidence that would seem, at the very least, to suggest the need for a second look. Greenhouse, Siegel, and Ziegler are not the first to note that polling data from before and after Roe reveal strong majoritarian support for the decision and that abortion was not the polarizing issue in 1973 that it later became. (27) A quick glance at the opinion itself reveals that seven of the nine Justices on the Burger Court, including three Nixon nominees who were self-avowed supporters of judicial restraint, supported the outcome in Roe. As Justice Blackmun has noted, "Roe against Wade was not such a revolutionary opinion at the time." (28)
One reason the backlash narrative has retained its hold over the popular--and the scholarly--imagination despite countervailing...