Saturday, February 06, 2021

Response to the Symposium on Abortion and the Law

Guest Blogger

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

Mary Ziegler

At what is undoubtedly a crucial point in the history of abortion law, I’m especially honored by the attention paid to my book, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge 2020). Jack Balkin has brought together four brilliant contributors whose work in this field has influenced my own. I am grateful to Jack and to each of the contributors for such a rich discussion of my book.

In different ways, the commentaries on Abortion and the Law all grapple with questions that keep me up at night: how can historians write about a topic as divisive as abortion, especially after any consensus about the basic facts has broken down? What is—or should be—the relationship between history and advocacy?

Of late, the stakes of these questions seem higher. In the summer of 2020, at the height of protests of the murder of George Floyd, historians and journalists reconsidered what objectivity means. Journalist Wesley Lowery has argued that the very idea of objectivity is a lie—that fairness and transparency about one’s own biases better serve readers than a flimsy claim to objectivity.

Of course, Lowery is right. In writing and researching Abortion and the Law, I could not escape my own experiences and opinions. In varying ways, the contributors ask what fairness means for an historian like me, writing about a topic like this, at a time like this, when large percentages of Americans persist without a shred of reliable evidence in believing the election to be stolen. David Garrow praises the book for being “consistently fair-minded.” Mark Graber sees my focus on policy-based claims as a reflection of the “constitutional trench warfare [that] has structured debate over abortion rights.” Linda Greenhouse worries that the book’s “even-handedness . . . imposes a veneer of equivalence to claims about abortion that are simply not equivalent by any measure.”

Fair historical scholarship on abortion has become a much more difficult enterprise since I published my first book on the subject (After Roe: The Lost History of the Abortion Debate) in 2015. Writing After Roe made me hopeful for debates about reproductive rights in the United States. Some of the nation’s most respected scholars argued that Roe had hopelessly polarized debate at the state and federal level, eliminating promising compromises on everything from pregnancy discrimination to programs to improve maternal mortality. I found instead that for the better part of a decade after the decision, the political parties’ positions on abortion were fluid. Influential antiabortion activists battled for laws protecting pregnant workers, expanding access to birth control, or reducing discrimination against children born out of wedlock. Though compromise on abortion itself seemed out of reach, After Roe illuminated lost possibilities that made the ugliness of today’s debate feel less inevitable.

Writing Abortion and the Law felt anything but hopeful. From the beginning, those on opposing sides of the abortion debate have disagreed about basic facts—whether abortion was safe, whether abortion access protected mental health, even when human life began. Yet in recent decades, fights in the courts and legislatures have increasingly focused on what abortion in the United States is really like. With this turn in the debate, polarization has deepened; opposing movements no longer inhabit the same factual universe, with disastrous consequences.

Many of the antiabortion activists studied in Abortion and the Law believed sincerely in claims about the health effects of abortion rejected by the National Cancer Institute, the American Cancer Society, the American Medical Association, and the American College of Obstetricians and Gynecologists. Time and again, antiabortion Americans dismissed experts with whom they disagreed because they saw those sources as biased. Abortion foes believed that the medical establishment and mainstream media had made up their minds to support abortion and simply manipulated the facts to suit that narrative. Some readers of this blog no doubt see this accusation as a projection: antiabortion leaders could not stomach facts that contradicted their beliefs about abortion.

In writing this story, I came to see abortion as the canary in the coalmine, part of a larger story of how many Americans gave up on the very idea of facts. The activists in Abortion and the Law embraced a twisted version of Lowery’s point about objectivity. Not only was perfect objectivity or fairness impossible. To many in my story, it seemed unnecessary and undesirable.

Writing a history of movements and individuals that view reality so differently is hardly straightforward. I don’t claim a monopoly on what fair history means, but I’ll say a word here about why I wrote Abortion and the Law the way I did.

First, I grappled with the nature of effective advocacy and its relationship to history. Historical scholarship on abortion bears an almost unique relationship to advocacy. Feminist legal historians have long been trailblazers in the field, including Sara Dubow, Linda Gordon, Reva Siegel, Rickie Solinger, and Greenhouse herself.

Without question, there are insincere, even manipulative characters in my story who said and did what they needed to do to win. My commentators wonder if my effort to be fair to these characters inadvertently validates claims that are unsubstantiated or outright false. Not calling out the lies in my story, in turn, might undermine current advocacy work.

Three books into studying this issue, I am not afraid of what evenhanded history means for effective advocacy. I’m reminded of an oral history I took from an abortion opponent in 2014. I’ve spoken to those who have bombed clinics or justified the cold-blooded killing of people who perform abortions, but this interview was the most chilling. Without any prompting, this man volunteered that he opposed the murder of abortion doctors, though not on moral grounds. He complained that murder was ineffective because women could simply go to another provider.

In telling this story, I could interrupt to tell you that I felt frightened or horrified by what was said, but then the story becomes part of an effort to persuade you. As an historian, I do not set out to be a judge. As I see it, that is my readers’ job. If history works in service of advocacy, that advocacy is most effective when it relies on unvarnished facts—and when those accused of dishonesty or worse hang themselves.

My attempt at fairness has what I see as a more basic explanation. Abortion and the Law explores how disagreement about the facts produces and reflects the polarization that cripples our debate about abortion. Disagreement about the basic reality of abortion has intensified its own brand of negative partisanship. Those who disagree intensely about abortion tend to demonize one another. A lack of consensus about simple facts advances this dehumanization: people with different views tend to see one another not as simply wrong but as fundamentally dishonest. As the events of January 6 remind us, this kind of dehumanization easily feeds into violence. I did not want to perform this polarization myself in documenting its rise. In writing the book, I tried to understand those who shaped our contemporary abortion politics and thereby identify exactly how efforts to dismantle abortion rights have unfolded (and where they may go next). And letting the characters speak for themselves drove home how dire our lack of consensus about the facts has become.

Enough about how I wrote the history. David Garrow wonders if I am too quick to give up on Roe. Like Laurence Tribe, Marc Spindelman, and other commentators, Garrow sees the glass as half full, especially when it comes to this summer’s decision in June Medical Services v. Russo. Garrow highlights Chief Justice John Roberts’ commitment to stare decisis, and like Spindelman, believes that Roberts’ concurrence in June Medical made Casey harder to overturn. With Melissa Murray, Leah Litman, and others, I saw the glass half empty. Garrow acknowledges that Roberts gutted the version of the undue burden test established in Whole Woman’s Health v. Hellerstedt but suggests that the chief justice’s apparent commitment to precedent counts for more than the demise of Whole Woman’s Health. But what are we to make of paeans to stare decisis written by a man who in the next breath largely overturns a major precedent? As Garrow notes, Republican judges certainly see Roberts’ praise of precedent as a mere rhetorical flourish.

In any case, Roberts alone cannot change the fate of Roe anymore. Garrow suggests that Brett Kavanaugh may cast the deciding vote to save abortion rights. Admittedly, any predictions about Kavanaugh’s vote will rest on quite a slender reed. In his time on the Supreme Court, he has written very little about abortion. But what Kavanaugh has said does not clearly suggest that he will ride to the rescue of abortion rights. In June Medical, Kavanaugh joined Samuel Alito’s dissent, which seemingly equates rational basis and the undue burden test. In a separate dissent, Kavanaugh called for additional factfinding.

It may be that Kavanaugh hesitates to pull the trigger when the fate of Roe and Casey are on the line. But we know now only how he proceeded when John Roberts was the swing justice. Now, Kavanaugh may well hold the deciding vote himself. Even if Kavanaugh still prefers a more gradual approach, a more subtle unraveling of abortion rights could be potent. If fewer Americans understand what the Court has done, any backlash will be that much fainter. This student of the Court’s abortion jurisprudence is not sure what the future holds, but I remain convinced that it is a question of when, how, and how much the Court erodes abortion rights, not if.

Like Greenhouse, Mark Graber believes that Abortion and the Law spends time “mucking around in the weeds of abortion policy.” But Graber thinks that the book has simply followed the abortion debate into the trenches. He correctly notes that despite a longstanding focus on the federal judiciary, the Court will never give either side what it seeks. Even in the case of a sweeping victory, Roe’s aftermath instructs us that any victory in the courts is likely temporary, and trench warfare will probably resume.

Graber illuminates the stakes of my story for constitutional law scholarship. I’m especially pleased that Graber takes a pedagogical lesson from the story I tell. If we are teaching students about abortion, he suggests, we should pay more attention to how the Court approaches findings of fact—those made by legislators, by lower court judges, and even by the justices themselves.

Graber is right that the collapse of consensus about the facts reaches beyond the abortion debate—and even beyond constitutional law. “[C]onstitutional trench war over abortion,” he writes, “is between those who accept contemporary medicine and those who think abortion rights advocates have corrupted contemporary medicine.” There is something profound in this observation. The antiabortion activists in my story almost systematically rejected conclusions drawn by the scientific establishment not only because those conclusions did not suit their agenda but also because the establishment drew those conclusions. Often, antiabortion activists believed that elite universities, mainstream media outlets, and leading medical organizations had rigged the rules in favor of Roe.

What to do about this loss of faith in the scientific establishment is not obvious. In the abortion context, however, leaders of larger organizations may have begun to second-guess the merits of anti-establishment sentiment for its own sake. To begin with, the antiabortion movement has an establishment, one that has woven itself into the contemporary GOP, one that has dominated strategy for nearly five decades. In the Trump era, the antiabortion establishment’s hold on power (and ability to promote the most effective strategies) has broken down. In 2019, heartbeat laws and absolute bans spread without the blessing of larger, richer antiabortion groups. This should be no surprise: if one thinks that establishments are fundamentally biased, why would the antiabortion movement be any different?

Some abortion foes are also rethinking their participation in the demise of the GOP establishment. Antiabortion leaders long saw establishment Republicans as unreliable allies who would ignore the abortion issue when it suited them. For this reason, after some initial hesitation, the movement cheered on Donald Trump, who seemed to have taken a hammer to the establishment. In the aftermath of the January 6 insurrection, movement leaders have to reckon with what it means to trade reliance on a party establishment for reliance on a single man.

Moreover, in the long term, embracing dubious scientific claims will not clearly do the antiabortion movement any favors. Historians from Daniel K. Williams to Jennifer Holland have shown that the pro-life movement’s turn to rights broadened its appeal. Defining the movement in opposition to the American Medical Association will limit, not expand, its reach. Just the same, I’m not optimistic. The antiabortion movement has made short-term gains by dismissing the scientific establishment, including in the Supreme Court. As long as the movement puts Roe’s demise first, the problem Graber describes will likely continue.

Laura Weinrib’s critique focuses less on what will happen to Roe than on the roots of our polarization. Abortion and the Law argues that the conflict escalated for reasons beyond the Supreme Court. Weinrib argues that I have downplayed the role played by court-centered constitutionalism in getting us into this mess. Like Weinrib, I think the importance of court-centered constitutionalism is hard to overstate, but I’m not sure we agree on the precise role played by the Court in producing the litigation strategies she spotlights. In 1992, Antonin Scalia implied that our fights about abortion would likely be far more peaceable if the justices “got out of the [abortion] area.” Last year, in the pages of the New York Times, the brilliant Joan Williams made much the same point. These narratives suggest that by choosing to preserve abortion rights—or to say anything about abortion—the Court has taken responsibility for our court-obsessed politics and the litigation strategies they inspire.

Roe certainly intensified antiabortion organizing, but from there, court-centered constitutionalism has taken on a life of its own. Conservative public interest groups, including pro-life ones, expect the Court to deliver desired policy outcomes well beyond the overturning of Roe. Rightwing movements use court-centered constitutionalism to get voters to the polls, to pilot new models of campaign spending, or to entrench changes that popular majorities may reject. All of that means that court-centered constitutionalism sometimes operates independently of the justices themselves.

For the Court, then, no matter what Justice Scalia thought, getting out of the abortion fight will not be so easy. If the justices reverse Roe, pro-choice groups will seek to change the balance of the Court and reinstate abortion rights. Abortion foes, who have never wanted to leave the question to the states, will return and seek recognition of a right to life that would ban all abortions. No matter how central Roe has been to our debates, the justices alone cannot put an end to our present dysfunction. In the abortion debate, court-centered constitutionalism has become an industry with many players. It is unclear whether any single decision from the Court can shut that industry down. Court-centered constitutionalism has become untethered from Roe.

Weinrib also suggests the distinction I draw between absolutism and incrementalism does not hold up. She asks if I “collapse the rights-policy distinction with opposing attitudes toward absolutism and incrementalism.” Here, it’s worth asking what we both mean by absolutism. I don’t mean that pragmatism took the antiabortion movement away from the courts. Most of the policy-based, “pragmatic” claims Weinrib discusses formed part of a complex strategy that very much had the Court at its center—one designed to elect more Republicans to office, increase the power of the antiabortion movement within the GOP, generate model abortion restrictions, and encourage the Supreme Court to ultimately undo Roe. Nor did pragmatists have different ambitions than the absolutists in my story. Both pragmatists and absolutists wanted to ban all or most abortions nationwide. The two factions disagreed about which strategies would best achieve that goal.

But what about the rights claiming of antiabortion pragmatists like James Bopp? Weinrib is right that efforts to rework the First Amendment figure centrally in a campaign to reverse Roe. Bopp and other abortion foes have participated in litigation to overhaul the Court’s interpretation of the Free Exercise Clause. But when it comes to the freedom of speech, the antiabortion movement was even more active. My fourth book, under contract with Yale, focuses almost entirely on that story. By the early 1990s, Bopp and other antiabortion leaders had joined the fight to undo campaign-finance regulations. Like his colleagues, Bopp argued that the antiabortion movement could never count on the GOP to pick judges who would reverse Roe unless the movement had more influence. More influence required more campaign spending—and more effort by activists like Bopp to help the GOP build a fundraising advantage. Abortion foes tried to persuade the GOP to oppose campaign-spending limits as a matter of principle. Alongside civil libertarians, GOP powerbrokers, and rightwing libertarians, Bopp spearheaded litigation to allow for unlimited, anonymous spending, especially by corporations.

But what does Weinrib mean when she says we are blaming the wrong rights? To what extent is the kind of court-centered constitutionalism she describes the work of the Court versus the work of social movements and political actors? Take Bopp’s campaign-finance work as an example. Bopp certainly relied heavily on arguments about the First Amendment, but he was only sometimes talking to the Court (or even focused on outcomes in the Court). Bopp’s campaign finance work often served to give wavering Republicans political cover. In the 1990s and 2000s, campaign-finance restrictions were popular, but GOP leaders could assert that if courts struck down spending reforms, there was no point in passing them, no matter what voters thought. Bopp’s first-amendment arguments often mattered at actual fundraisers: he helped to pioneer  super PACs and dark money organizations that gave the GOP a fundraising edge. And perhaps most important, Bopp and his allies set out to transform the GOP as much as the Court. By deregulating some forms of outside spending, Bopp hoped to cripple the GOP establishment and make the Republican Party more dependent on grassroots movements, including his own. Court-centered constitutionalism plays a central role in this story. Bopp remained committed to control of the Court and the reversal of Roe. But Bopp’s work went beyond litigation. He spoke to (and often prioritized) audiences beyond the Court. I agree with Weinrib about the polarizing effects of some forms of rights-claiming. But I still believe that the polarization of the abortion debate—and the campaign-finance debate—reach beyond anything that can be explained by the Court’s intervention.

Weinrib closes by observing that incrementalism will inevitably lead back to absolutism. This is true, of course: the shift to incrementalism largely reflected the strategic demands of the moment. Nevertheless, that tactical turn had consequences. The more important arguments about the reality of abortion became to abortion lobbying and litigation, the more antiabortion groups invested in the politics of science. The dichotomy between incrementalists and absolutists was never about substance. Activists like James Bopp have made no secret about the fact that they would gladly criminalize all abortions. As soon as they see no political cost in saying so, the savviest antiabortion lawyers will certainly return to defending fetal personhood and demanding recognition of a right to life. But the strategic focus on science and facts has done lasting damage just the same. If, as Greenhouse suggests, we return to the clash of absolutes, we will be further apart (and worse off) than when we began.

Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law. You can reach her by e-mail at mziegler at

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