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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Reading Michael Klarman’s and Gene Burns’ posts, I encountered a commonly-held view of the pre-history of Roe. I want to take issue with two misconceptions. One is that the 1960s was a politically meek and reformist period, dedicated simply to securing therapeutic abortions and leaving it at that. Often enough, the corollary is that the ‘real’ fight only began when feminists jumped into the fray in 1969, and that the only “real” arguments emanated from that moment. This misunderstanding of the history has consequences: it erroneously promotes a ‘backlash’ thesis, misconstrues the nature and breadth of support for Roe, and, over time, helped narrow feminists’ own understanding of the roots of pro-choice politics and the necessity of entertaining arguments outside a relatively narrow band of opinion.
The movement for the repeal of the abortion ban began in 1964 and occasioned steady and serious debate through the 1960s. It was broad-based along a spectrum from liberal to moderately conservative, and succeeded in favorably publicizing its views in many mainstream venues (including Life magazine). The rightness and justice of abortion drew support from zero population growth advocates to physicians concerned with the health effects of illegal abortion to liberal ministers to liberal churchwomen. Some were motivated by eugenic concerns, some by ideals of family planning and companionate marriage, still others by women’s right to choose (a slogan which originated with Garret Hardin, spokesperson for Zero Population Growth , in 1964). The coalition was extremely successful in mobilizing a variety of constituencies
There were divisions within the legalization movement, to be sure, but overall activists favored a repeal of the abortion ban and differed about how to get it. Therapeutic laws were the ‘half-loaf’ that one faction believed would bring the full loaf. Activists were able to secure therapeutic laws in some thirteen states,not simply in the South (indeed I’m not sure which Southern states Gene Burns is thinking of, since a quick look at David Garrow’s book reveals that Alabama failed to pass any legislation, Texas law, of course, remained draconian [Roe v. Wade originated there], Virginia’s and South Carolina’s statutes were passed late in the game after many others; Mississippi passed nothing; etc.).
Contrary to what Burns argues, legislators were well aware of the legalization arguments and the pressures brought to bear on them. True, the debate these therapeutic laws occasioned among these men (remember they were virtually all male) was not the debate we have today. It was much milder, because abortion itself was less contested and the opposition not altogether up and running—it’s a mistake to project back “our” debate and assume that because it wasn’t occurring, people were uninformed about what they were doing.
By 1970, as Catholic forces geared up, the tenor does become more familiar: one Catholic legislator in the New York debate stood up to read “The Autobiography of a Fetus,” the testimonial of a dead fetus about what it felt like for his mother to kill him. A Colorado representative identified the fault line that year—the public was comfortable if the question was put in terms of balancing two rights, between the woman’s health and welfare and the potential life of the fetus. But as for woman’s “unfettered right” to abortion, the answer was no. These demurrals are strikingly similar to the ‘line’ many moderates draw today.
By 1970 two things were clear: the therapeutic laws were untenable (for reasons we can discuss at the conference) and the Catholic Church would stop at nothing to roll back even therapeutic laws. This is why the movement shifted to a legal strategy for total repeal, to move the fight to the courts where Catholics had no power. In 1970, repealers mounted a national campaign of what amounted to civil disobedience—the wave of challenges and litigation that led to Roe (scores of cases were in the courts that year). It was at this point that feminists entered full force, introducing electrifying new tactics and new litigants (hundreds of women joining to challenge state statutes in NY, Connecticut, and elsewhere).
Contrary to Klarman, the historical evidence simply does not support the view that Roe was an opinion out of tune with its times. Americans moved toward, not away from legal abortion in the period leading up to Roe. Mainstream Protestant denominations began to come around—even the Baptist General Convention called for change. Physicians overwhelmingly supported legalization—the AMA went on record. The decision itself was greeted with widespread approval from many quarters, as any sampling of the major newspapers shows. Opinion polls showed 65% of the country favored the decision—a proportion that amazingly, remains more or less steady up to our own time.
The broadness of this historical moment provides lessons for today, in the breadth of common ground which a principled pro-choice movement can stake out. People can support abortion rights for different reasons. Over time, anti-abortionists have discursively tried to undercut the 2/3 consensus by altering the grounds of agreement—“yes, Americans agree that abortion should be legal, but if you ask them if a woman should be able to get an abortion because she doesn’t want to ruin her figure, the number drops to 1/3.” Or, more to the point these days, “yes, Americans agree, but if you ask them if she has a right to allow a doctor to dismember horribly a baby and tear it out of her, the number drops to….”
But the opposition has come up against certain core beliefs: not that abortion should be ‘free and on demand’—possibly the worst slogan the women’s movement ever invented—but that women should be granted the dignity to make such a choice. There are multiple registers in which to express that view. Here I resonate with Reva Siegel’s new work, which elucidates an intuition I have long held about something deeper at work in the solidity of support, beliefs that mesh women’s rights with a popular sense of the Constitution. Posted
by Guest Blogger [link]