an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
While many opponents of abortion do not care about legal and constitutional niceties, there is a line of criticism in both the academic and political worlds that ties the criticism of “judicial activism” with an implicitly “states’ rights” argument about how to build political consensus and a viable community. The academic argument that is probably best known came from Mary Ann Glendon over twenty years ago. The political significance and staying power of this argument is exemplified by a recent statement by John McCain, quoted by Lisa Hirshman in Slate (http://www.slate.com/id/2199132/): “Sen. McCain says ‘Roe v. Wade is a flawed decision that must be overturned ... returning the abortion question to the individual states’ where pro-life groups ‘can help build the consensus necessary to end abortion at the state level.’”
Note the multiple claims implied in such a statement: (1) Roe is a constitutionally and/or morally “flawed” decision usurping states’ rights, so that the issue must be “returned” to the states. (2) Abortion should and (3) can be dealt with by the states because (4) the states are places where a pro-life consensus can be built.
As a sociologist who came to study the legislative politics of pre-Roe abortion laws not so much for its own sake but because of my interest in moral conflict and reproductive politics, I am not sure how much legal scholarship focusing on state law and state politics influences the scholarship focusing on constitutional (federal) law. As my interdisciplinary college has a political theory major dominated by conservative faculty, I have seen many discussions of federalism in both academic and politicized contexts that simply (that is, simplistically) laud the democratic possibilities of state and local politics. So rarely is mentioned the somewhat obvious point that discussions that are kept local can of course simply reflect local prejudice. So rarely is mentioned the fact that the Civil War that so violently put into question the rights of states resulted appropriately in constitutional amendments which could expand rights and freedoms only by restricting the powers of states, quite explicitly in the language of the 14th and 15th Amendments, and implicitly in the 13th.
It is then striking that “states’ rights” language can be invoked today without embarrassment, as if it were so obviously democratic. There is apparently widespread lack of knowledge, as well as willful avoidance, of the fact that “states’ rights” language became popular as the barely coded language of racism. Roe has been a central rallying cry for “states’ rights” that were supposedly usurped by judicial activism; the abortion debate probably helped conservatives obscure the racial origins of states’ rights arguments.
States can indeed be laboratories of legal change, as was the case for pre-Roe abortion laws. But the idea that national legislation is vastly removed from the populace, and that the state legislative process is, instead, one of democratic debate and the process of building a just consensus, is dramatically falsified by the patterns of those pre-Roe state laws. One of the very interesting puzzles that arises in looking at those laws is that disproportionately, in the period 1966-1970, it was Southern states that liberalized their abortion laws. A common hypothesis, which I initially shared, is that Southern states liberalized their abortion laws because they wanted to encourage African-American abortions. Instead what state legislative records indicate was that Southern states that passed the type of abortion “reform” laws recommended by the American Law Institute typically did so with little debate and did not envision much of a quantitative change in legal abortions. The evidence overwhelmingly indicates the state legislatures thought these laws would be an uncontroversial reform of the laws governing medical practice. In short, the more states debated those proposed laws–which gave physicians wider latitude to allow what were then called “therapeutic” abortion–the less likely they would pass such a law. The states that passed reform laws generally did so without any significant public discussion, and without even extended discussion or debate in the legislature. They did not think of these laws granting any “right” to abortion; and indeed the laws did not. The new laws focused instead on the authority of doctors to allow abortions for women in sympathetic circumstances. As Kristin Luker documented in her now-classic 1984 book, Abortion and the Politics of Motherhood, women were not considered subjects in these debates. Doctors were. (Luker also noted that the Supreme Court probably did not see itself as particularly activist and probably greatly underestimated how controversial Roe would be. To the Court at the time, the decision looked like a sensible one in a direction supported by wide segments of the legal and medical communities.)
It appears that the South was particularly likely not to experience controversy before Roe because, in the South, there was no significant presence of feminist groups challenging restrictive abortion laws. And there was almost no one raising pro-life arguments of the type that would become much more common after Roe: At the time, what little pro-life activism that existed was almost entirely Catholic. It was not until a few years after Roe that Evangelical and fundamentalist Protestants got involved. And so, especially in the South, but also in a number of other states, the new 1960s laws were about medical practice, not about women’s rights or about fetuses. To give a sense of how dramatically different the politics were, less than two weeks before the 1968 presidential election, Curtis LeMay (George Wallace’s running mate), stated he was in favor of legal abortion. And nobody noticed. (The New York Times buried the story on p. 40.) Wallace and LeMay won five states in the South, again a region where consciousness of any “abortion debate” was then almost entirely absent.
In 1970, repeal laws were passed in four states (including Alaska, home of then-six-year-old Sarah Palin), putting into state law something much closer to what Roe v. Wade (and Doe v. Bolton) would bring nationally. It appears that the debate in New York state, especially, brought the abortion question into national consciousness, in an increasingly polarized way. Still, a couple Southern states still passed reform laws in 1970, and, again as Luker noted, large national mobilization did not occur until after Roe (January 1973).
The debate over repeal laws was considerably more vociferous and polarized than was the debate over reform laws, though it also worth noting that in states where proposals for reform laws elicited extended legislative debate and public discussion, the proposals typically failed. And once the repeal law debate in several states in 1970 initiated a more national-level debate, states stopped passing any type of new abortion law.
In short, the lesson is that on such a polarizing issue as abortion, states did not handle true debate very well. Mary Ann Glendon and other conservatives have misread the legal and political history to assume that states passed moderate “reform” laws because people worked out their differences and passed a compromise. No, state legislatures passed laws that they did not think of as compromises at all. State legislatures that passed reform laws were not aware that any compromise was needed, because there was no extended debate or public discussion that preceded their enacting such laws.
State legislatures, for the most part, could not handle a true abortion debate. Many could pass what they thought was medical reform (not a law about women’s or fetal rights) because they had not heard from the advocates of abortion rights or from pro-life Catholics. Probably most legislators who passed such laws between 1966 and 1970 were not even aware that such activists existed. And as the debate started to take on a national level, states stopped passing new abortion laws. In some cases, attempts were made after 1970, but polarizing debate prevented any new legislation. In many states it was also probably the case that legislators were happy to punt, because they knew constitutional challenges had started to make their way through the federal courts. Better to punt than be forced to vote on a law where some constituents were going to be so infuriated that they would be highly motivated to work against the reelection of that legislator. Better to make constituents happy by building bridges and funding the police and fire departments; why touch the hot potato that abortion had become?
So, if the John McCains of the world get their way, what should we expect? States overwhelmed by the abortion debate and many probably taking the path of least resistance: If for instance they can get something like a 1960s law reinstated simply by doing nothing, that is probably what many will do. Don’t expect any warm and fuzzy state-level process of building consensus.
It is no longer 1787, and thank goodness, it is no longer the era that preceded the victories of the Civil Rights Movement. Truly important debates are national; it is amazing that the mythology of states as distinct communities continues to be vociferously asserted. Posted
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