Wednesday, February 03, 2021

Blaming the Wrong Rights

Guest Blogger

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Laura Weinrib

Mary Ziegler’s Abortion and the Law in America is an impressive and important book. Expertly interweaving analysis of the social, political, and cultural contestation over abortion in the years since Roe v. Wade, it links debate about abortion regulation to such varied developments as declining confidence in medical professionals, the advent of no-fault divorce, the war on drugs, the rise of HMOs, and the ascent of neoliberalism. But the heart of the book is Ziegler’s distinction between rights-based arguments—a woman’s “right to choose” and a fetal “right to life”—and the workaday arguments about social policy that have dominated abortion litigation for the past few decades. At least since Planned Parenthood v. Casey, Ziegler explains, the “costs and benefits of both abortion and laws regulating it” have been at the “center of constitutional discourse” (119), and they have “splintered” the competing factions (56).

Ziegler’s core argument is that the clash over policy was just as divisive as the clash over rights. “Rather than illuminating possible common ground,” she tells us, “arguments about the policy costs and benefits of abortion made compromise even more unimaginable” (60). The two camps disagreed not only about the consequences of abortion, but also the “basic facts” (198); stymied by unhelpful medical and scientific research, antiabortion groups explicitly cultivated “the development of new sources for abortion data” to support their alternative understandings of the procedure (75). According to Ziegler, this trajectory was not inevitable. In the immediate aftermath of Roe, accommodation of opposing positions appeared attainable—a point that builds from Ziegler’s eye-opening 2015 book, After Roe: The Lost History of the Abortion Debate. But that moment of possibility was fleeting: “By the early 1980s, these middle ground solutions had come to seem politically impossible” (209). In Ziegler’s view, the culprit was neither Roe nor rights. Instead, it “reflected factors beyond the Court’s decision, including political party realignment and the rise of the Religious Right and the New Right.” Moreover, the Court’s doctrinal shift to “undue burden” analysis—which involved balancing the costs and benefits of abortion, and which moved the battleground from absolute protection or prohibition to incremental restrictions on access and funding—only exacerbated polarization. “The recent history of the abortion conflict gives us reason to be deeply skeptical of claims that overturning Roe will make the abortion battle less polarized,” Ziegler concludes.

Ziegler’s thesis is smart and provocative, if not entirely convincing. To begin with, Roe’s detractors have blamed the Court not simply for focusing on rights claims (though they have certainly criticized the particular privacy-based formulation it adopted), but for usurping the legislative process. Given that the debate over abortion regulation since Roe has remained in the courts and on constitutional terrain, Ziegler’s evaluation of the shift to policy arguments is not fully responsive to the counterfactual of judicial deference to state legislatures. What I want to explore here, though, is a different line of critique. Ziegler’s account appears to collapse the rights-policy distinction with opposing attitudes toward absolutism and incrementalism. Those who championed a fetal right to life or an unfettered right of women to choose were “absolutists,” on her telling, while those who pursued policy rationales were “incrementalists” or “pragmatists.” But rights claims can also be incrementalist. And speaking pragmatically, they can also be incredibly effective. Indeed, even as the antiabortion movement suspended its early efforts to inscribe a fetal right to life into the constitution (through judicial interpretation or constitutional amendment), it never gave up on a strong form of constitutional rights-claiming. It simply shifted to a different bucket of rights: rights to the free exercise of religion and freedom of speech. It pursued in particular a right to influence the political process through campaign spending and the election of sympathetic judges—an effort which attracted broader support than the right to life in the short term and which, aggressively implemented, had the potential to manufacture a new constitutional consensus on abortion in the long term. In my view, Ziegler is correct to reject the argument that Roe’s rights framework single-handedly undermined the possibility for durable and meaningful access to abortion, secured through the legislative process. But I think she’s too quick to reject the polarizing role that the judicial enforcement of constitutional rights claims has played. Roe’s critics, I want to suggest, have been blaming the wrong rights.

First, on policy and purism. Ziegler’s argument is premised on the assumption that advocates on both sides of the abortion debate turned away from a strong form of rights claiming (rights to unfettered bodily autonomy or gender equality, on the one hand, and to a fetal right to life on the other) in favor of more “pragmatic” arguments about welfare costs, social mobility, and the health of women and families. As Ziegler acknowledges, those arguments had a long pedigree pre-Roe; unsuccessful rights claimants have often fallen back on arguments about the social costs and benefits of regulation or mobilized such arguments on behalf of their rights claims. There is also a long tradition of invoking evidence of social harm (sometimes, as with the “Brandeis Brief” in Muller v. Oregon, drawing on contested appeals to science and public health) to undermine abstract constitutional rights. In the abortion context, however, Ziegler hopes that the retreat to arguments about women’s health and the social costs and benefits of abortion will bear on an inquiry, central to constitutional scholarship about Roe for almost five decades, about whether court-centered constitutional rights-claiming is more divisive than (ostensibly) policy-oriented legislative reform, where compromise is thought to be achievable. Given this focus, she tends in the book to equate rights-claiming with absolutism, and policy-oriented arguments with incrementalism. That’s a move that often rings true in the period she discusses, at least in the core abortion regulation cases. As they struggled to hold their ground in the 1980s and 1990s, the leadership of NARAL, Planned Parenthood, and the ACLU asked whether a health-oriented justification for increased access would compromise essential commitments to reproductive autonomy. For their part, many antiabortion activists worried that it was both unethical and counterproductive to emphasize the social costs of abortion instead of fetal rights, even if it secured concessions in the short run.

In broader context, however, the cleavage between rights-claiming and pragmatism or incrementalism does not entirely capture the universe of relevant litigation or the motivations or tactics of the actors Ziegler describes. This is true, preliminarily, in the rather mundane sense that it’s not always possible to disentangle rights and policy claims. To take two of Ziegler’s examples, an argument that D&X (“partial-birth abortion”) undermines human dignity by “coarsening attitudes toward human life,” which Ziegler classifies as expounding on a moral “cost” of abortion (152), is consistent with a rights-based (if incrementalist) approach to investing the fetus with human rights. By the same token, an argument that “without their health, women could never achieve equal citizenship,” which Ziegler describes as a “health-based argument,” is part and parcel of a claim to equal rights (127). More fundamentally, though, some rights claims are basically incremental in nature. Rights to influence the political process through freedom of speech or electoral representation are especially likely to take this form. And in retrospect, it seems that the genius of the antiabortion movement in the years after Roe was to seize upon those rights, with the goal of shifting both the legislative and constitutional landscape in their favor.

To develop this argument, I want to start with an observation. In the early chapters of Abortion and the Law, Ziegler repeatedly cites polling data indicating that legal abortion commanded majority support among both legislators and the general population. The level of that support dropped off steadily in the decades after Roe, until 2009, when a Gallup poll revealed that a majority of Americans identified as pro-life for the first time (187). I agree with Ziegler that Roe itself was not responsible for that shift. But I suspect that the broader constitutional litigation strategy of the antiabortion movement played an outsize role. I can’t fully flesh this out here, but I’ll offer an illustrative example, in the figure of James Bopp Jr. “The most pressing need,” Ziegler quotes Bopp as saying in 1992, “is to recapture public opinion on this issue” (144). Bopp is a pivotal player in Ziegler’s book, and rightly so. He engineered the early NRLC’s litigation strategy and has helped to shape conservatives’ constitutional agenda ever since. Bopp believed that the Court’s Republican-appointed justices had declined to overrule Roe out of concern for institutional legitimacy and out of deference to widespread public approval of abortion rights. To alleviate those concerns, abortion opponents would need to change the composition of the state and federal courts, strengthen relations with the Republican Party, and secure reliably antiabortion appointments to the bench.

Needless to say, a sweeping agenda like this required a multifaceted litigation campaign. The antiabortion movement sought simultaneously to reclaim the constitutional high ground and to carve out a path to institutional power. They did so by appealing to cherished American values like religious liberty and free speech, and by drastically expanding them to protect new forms of influence and access. Ziegler attends in the book to many components of this strategy: claims to accommodation by anti-abortion doctors and taxpayers, obstructive picketing by anti-abortion activists, and complaints about the purported censorship of antiabortion medical research. But conspicuous cases like Madsen v. Women’s Health Center, Inc. and Burwell v. Hobby Lobby Stores are just the tip of the iceberg. Bopp (as Ziegler notes) also helped to litigate Bush v. Gore. And he did much more. He was instrumental in establishing the right of candidates for judicial office to announce their views on controversial political issues (Republican Party of Minnesota v. White). He successfully defended the Susan B. Anthony list against a defamation suit for a false statement about a candidate’s support for abortion funding (Susan B. Anthony List v. Driehaus). And most importantly, he spearheaded the multi-decade First Amendment campaign to invalidate the regulation of election expenditures and contributions, first by the non-profit antiabortion advocacy groups that he represented, followed by for-profit corporations, with the ultimate goal (as he told the New York Times) of “dismantl[ing] the entire regulatory regime that is called campaign finance law.” Indeed, it’s plausible to describe the path to Citizen’s United v. FEC, which he litigated in the lower courts, as the central pillar of Bopp’s campaign to outlaw abortion.

It has not been lost on scholars and commentators that abortion opponents have lambasted “activist judges” for reading privacy into the Constitution even while they have demanded these strong and unprecedented forms of First Amendment protection. Bopp has done his best to square the circle. “[I]t is a grave offense to popular sovereignty and democracy to interpret the Constitution to add rights that were not present in that Constitution when the people ratified it,” he wrote in a 2007 article. “It is also a grave offense to write out of the Constitution rights that were in that Constitution when it was consented to by the people.” He associated the latter with the Court’s early decisions upholding campaign finance legislation, and the former, predictably, with Roe v. Wade.

When it comes to the abortion debate, I share Ziegler’s attraction to contingency. In fact, Ziegler’s work has persuaded me that the path to our present predicament had plenty of unpursued forks. But Abortion and the Law has not convinced me that “polarization of the abortion debate reaches much deeper than anything that can be explained by the Court’s intervention” (210). On the contrary, it has rendered even clearer the polarizing function that court-centered constitutionalism has assumed. Ziegler brilliantly illuminates the role of the antiabortion movement in the politicization of science and public health, which in turn fueled the rise of disinformation and extremism. The eventual endpoint was to repackage appeals to objectivity as assaults on constitutional rights. Thanks in significant part to newly protected campaign expenditures, the state and federal courts are amply stocked with judges who are unshakably devoted to the antiabortion agenda. Even allowing for a healthy dose of contingency—and notwithstanding concerns about judicial legitimacy—it isn’t hard to imagine that an incremental commitment to religious liberty and free speech will lead, before long, to a constitutional “right to life.” 

Laura Weinrib is Professor of Law at Harvard Law School and Suzanne Young Murray Professor at the Radcliffe Institute for Advanced Study.  You can reach her by e-mail at lweinrib at

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