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
In the short term, Brown v. Board of Education (1954) retarded racial progress in the South and radicalized southern racial politics, advancing the careers of extreme segregationists such as Bull Connor and George Wallace. Miranda v. Arizona (1966), in the face of rapidly rising crime rates, facilitated Richard Nixon’s victory in the 1968 presidential election on a law-and-order platform. Furman v. Georgia (1972), by threatening to extinguish the death penalty, produced a dramatic resurgence in support for capital punishment, as thirty-five states enacted new death penalty legislation within the next four years. Roe v. Wade (1973) generated a politically potent right-to-life movement that has significantly influenced national politics ever since. Goodridge v. Department of Public Health (2003) resulted in more than twenty states enacting constitutional bans on same-sex marriage, cost a couple of Democratic senators their seats in 2004, and possibly enabled George Bush to win Ohio’s electoral votes, without which he would not have won a second term.
I am writing a book that seeks to explain this phenomenon of backlash—prominent Court rulings that, at least in the short term, seem to retard the causes they purport to benefit. In my contribution to this symposium, I shall examine the backlash phenomenon in the context of abortion.
The main cause of backlash is the failure of Court decisions to arrive at compromise positions that appeal to most voters. Relatively small percentages of Americans favor the extreme positions on abortion—that it is always or never permissible. Most people favor a woman’s right to abortion with qualifications. By adopting a position near the extreme pro-choice end of the abortion spectrum, Roe almost inevitably generated backlash.
The Justices in Roe had available two compromise positions that probably would have minimized backlash. Opinion polls reveal far broader support for early-term than late-term abortions. One 1970s poll found that 64 percent favored a woman’s right to abortion in the first trimester, while just 26 percent favored that right in the second trimester. Justice Blackmun’s initial draft in Roe would have limited the right to the first trimester. Justice Powell convinced him to expand the right through the end of the second trimester. This change was undertaken casually. It may have proved enormously important in terms of generating backlash.
Second, most Americans support abortions for a limited set of reasons. Between 1967 and 1971, thirteen states adopted “therapeutic” abortions laws that permitted abortion when the woman’s life or health (often including mental health) were in jeopardy, when fetal deformity was likely, or when the pregnancy had resulted from rape or incest. Opinion polls showed overwhelming public support for abortion in these situations. But in Roe’s companion case, Doe v. Bolton, the Court invalidated such therapeutic abortion laws, holding that a woman’s reasons for seeking abortions could not be restricted by the state. Yet opinion polls showed relatively little support for abortions undertaken for certain other reasons: a desire not to have children outside of marriage, to delay child bearing, or for sex selection. By protecting “abortion on demand,” as opponents termed it, Roe invited backlash.
There are other reasons that Roe generated backlash. Supreme Court decisions are often more salient than other legal events: More people were made aware of dramatic changes in abortion attitudes and law as a result of Roe than as a result of state legislative reforms that had been occurring for the previous half a dozen years. For many people who were uncomfortable with unrestricted access to abortion, it was Roe that forced them to take a position on the issue.
Court rulings like Roe may inevitably generate backlash by changing the political dynamics of an issue: After Roe, abortion opponents had no choice but to mobilize politically across the country, while supporters of abortion rights let down their guard, relying on the Court’s decision for protection rather than continuing to mobilize politically. In addition, Roe enabled some politicians to shift their stance toward opposing abortion, secure in the knowledge that the Court’s decision would render any antiabortion legislation purely symbolic.
Finally, a Court ruling such as Roe may shift the political dynamics of an issue by ensuring that a different set of images/examples becomes salient. When abortion was largely illegal, the media directed public attention to women dying from botched illegal abortions. After Roe, attention shifted to the fact that 1.5 million legal abortions were taking place in the country, that abortion had become the nation’s most common surgical procedure, and that some women were having abortions for reasons—e.g., backup birth control—of which most Americans disapproved. This dynamic may suggest there is no long-term stable equilibrium on the abortion issue: Whichever side triumphs in the short term is bound to face difficulties maintaining its advantage as the balance of salient images/examples shifts against it. Posted
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