Tuesday, February 02, 2021

The Benefits and Burdens of Mary Ziegler’s Account of Abortion 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).

Linda Greenhouse

            While this is Mary Ziegler’s third book about abortion (following After Roe: The Lost History of the Abortion Debate, Harvard 2015, and Beyond Abortion: Roe v. Wade and the Fight for Privacy, Harvard 2018), what it most resembles is a book published before Professor Ziegler was even in high school – a measure of the longevity of the abortion debate and of scholars’ efforts to understand it. That book is David J. Garrow’s 981-page Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (MacMillan, 1994).[1] In my comparison lies both a compliment and a critique.

            First, the compliment. Ziegler’s post-Roe account matches Garrow’s pre-Roe narrative in its granular comprehensiveness (while at one-third the length). Both authors interviewed everyone who was still alive and who might conceivably have something to say, and both unearthed and consulted a breathtaking array of primary sources. In my own work, I’ve gone back repeatedly to Liberty and Sexuality.  Future scholars of the post-Roe period will undoubtedly turn to Abortion and the Law in America and its 720 footnotes.

            But like Garrow’s book, Ziegler’s contains the vice of its virtues. Facts piled upon uninflected facts march across its pages, not only making for tough reading but crying out for some ordering principle, some suggestion of hierarchy. I’m guessing that Ziegler felt obliged to quote everyone generous enough to have given her an interview, with the result that numerous obscure characters and organizations are mentioned once or twice, never to be heard from again. It’s history as inventory.

            There’s a deeper problem. An apparent goal of the book is to give the players on all sides of the abortion debate their voice, depicting them largely as they saw themselves, with minimal authorial intervention. The result is an even-handedness that imposes a veneer of equivalence to claims about abortion that are simply not equivalent by any measure, including accuracy and intellectual honesty.  What, for example, are we to make of this passage: [p. 197]          

Pro-life groups contended that the procedure cost women their psychological health, forced unborn children to suffer tremendous pain, and took away the rights of conservative Christians to act in accordance with their religious beliefs. Pro-choice organizations responded that abortion had important benefits, both in terms of the health outcomes women achieved and the life goals that many could pursue.

          I don’t want to be unfair. The book centers on an account of what happened  once abortion opponents bowed to reality and by 1983 had given up the idea of overturning Roe by amending the Constitution. They chose instead an incremental strategy that would make abortions ever harder to get and that just might change hearts and minds along the way by shifting the focus from the fetus to the woman. Ziegler aims to show that the struggle evolved from the initial rights-based “clash of absolutes”[2] to a more layered debate over the costs and benefits of allowing abortions or restricting them. In that context, the words “cost” and “benefits” in the passage quoted above, from near the end of the book, are less jarring than might appear to a reader encountering them for the first time.

            But even in context, I find the passage – and, indeed, the construct – puzzling. Legal abortion obviously conveys a “benefit” in a comparative sense: not abortion as an absolute good but legal abortion as compared to a back-alley butcher or to state-enforced child-bearing. Those are the alternatives, aren’t they? A pro-choice argument might also focus on the additional factor captured by Reva Siegel’s phrase “the dignity of autonomous decision-making” in her foundational 2008 article about the rise of strategically designed “woman-protective” abortion regulations.[3] Assuming that Ziegler understands abortion’s “benefit” to incorporate these indisputable elements, it still seems odd to label abortion a benefit to be placed on a scale opposite psychological harm and fetal pain, claims that she categories as “costs” without making clear that these claims are not supported by evidence.[4]

            Whether from an effort to be non-judgmental or simply because her emphasis is elsewhere, Ziegler soft-pedals the questionable role played by some of the anti-abortion activists largely responsible for constructing the “cost” side of the cost-benefit abortion equation. For example, she describes one Vincent Rue only as a “veteran pro-life witness.” [p. 94] In fact, Rue, a marriage therapist without medical training, is credited with concocting the false “post-abortion syndrome” and has been sharply criticized by several federal district judges for his role in coaching or ghostwriting testimony for state witnesses defending challenged abortion regulations.[5]

            On the other hand, Ziegler seems to me unduly suspicious of the defensive strategies pursued by pro-choice organizations. “Why did the abortion-rights movement focus on claims about the health benefits of abortion access?” she asks, [p. 129] referring to the years in the early 1990s following the Supreme Court’s decision in Planned Parenthood v. Casey. Her answer is that the health issue was a motivating tool, useful for fund-raising during the post-Casey period when Bill Clinton was in the White House and the right to abortion appeared to many to be safe.

            But isn’t another answer that the pro-choice side was responding to the TRAP laws (“targeted regulation of abortion providers”) then emerging, laws that imposed onerous and unnecessary regulations on abortion clinics and their doctors in the name of protecting women’s health? Clinic lawyers argued in court that far from protecting women’s health, regulations that shut down clinics for no medically justified reason harmed women by restricting access to reproductive health care.

            The Supreme Court accepted this argument in Whole Woman’s Health v. Hellerstedt, the 2016 decision that struck down the Texas law that required doctors who perform abortions to have admitting privileges at a nearby hospital. By the time the case reached the Supreme Court, the Texas law had closed half the abortion clinics in the state.

            Whole Woman’s Health was where an explicit cost-benefit analysis entered the court’s abortion jurisprudence. Justice Breyer’s majority opinion drew heavily on the approach that Judge Richard Posner had first applied in striking down a similar law in Wisconsin.[6] Judge Posner reasoned that the “undue burden” test the Supreme Court adopted in Casey required a comparative assessment of the benefits an abortion regulation conveyed and the burdens it imposed; how else was a judge to tell whether a burden was “undue”? (Oddly, given her own focus on costs and benefits, Ziegler does not mention Posner.) As Judge Posner had concluded in Wisconsin, Justice Breyer found that in Texas, the admitting-privileges requirement offered no measurable health benefit, despite the state’s assertion to the contrary, while making abortion demonstrably less accessible.

            Abortion and the Law in America was published last spring, shortly before the Supreme Court struck down Louisiana’s admitting-privileges law in June Medical Services v. Russo. Chief Justice Roberts withheld his fifth vote from Justice Breyer’s plurality opinion, concurring only in the judgment. Having dissented in Whole Woman’s Health, he now wrote that although that decision was entitled to stare decisis effect in an identical factual context, he still considered it wrongly decided. Its “balancing test” invited judges to weigh “imponderable values,” he said, and required them “to act as legislators, not judges” in assessing the benefit side of the cost-benefit equation.[7] All that mattered under Casey’s undue burden test, the chief justice insisted, was whether a challenged law imposed a substantial obstacle on a woman’s access to an abortion before fetal viability. The benefit side of the equation was off the table.

            In the months since June Medical Services was decided, federal circuit judges with anti-abortion leanings have had a field day declaring that Whole Woman’s Health is no longer good law.[8]  We have come full circle, it seems, back to the clash of absolutes.

Linda Greenhouse is Senior Research Scholar in Law at Yale Law School. You can reach her by e-mail at linda.greenhouse at

[1] I’m referring to the first edition. The second edition (University of California, 1998), which added material on LBGTQ rights, is 1,047 pages long.

[2] This phrase, now in common usage, was the title of Laurence Tribe’s 1992 book Abortion: The Clash of Absolutes.

[3] Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L. J. 1694, 1704 (2008).

[4] Brief of Amici Curiae American College of Obstetricians and Gynecologists et. al. in Support of June Medical Services, June Medical Services v. Russo at 8 n.12, 140 S. Ct. 2103 (2020) (Nos. 18-1323 & 18-1460),  (quoting Dadlez & Andrews, Post-Abortion Syndrome: Creating an Affliction, 24 Bioethics 445, 450, 452 (2009)).

[5] See, e.g. Emily Bazelon, Is There a Post-Abortion Syndrome? N.Y. Times Magazine, Jan. 21, 2007; Mary Tuma, Meet the Anti-Abortion “Wordsmith” Defending HB2: Did a State Consultant Act Unethically During This Month’s HB2 Trial?” Austin Chronicle, Aug. 22, 2014. Also see Linda Greenhouse and Reva B. Siegel, Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428, 1458-1460 (2016).

[6] Planned Parenthood of Wis. v. Van Hollen, 738 F. 3d 786 (2013). “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” 738 F. 3d at 798. As Justice Breyer explained in Whole Woman’s Health, the undue-burden test “requires that courts condier the burdens a law imposes on abortion access together with the benefits those laws confer.” 136 S. Ct. 2292, 2309 (2016).

[7] June Medical Services v. Russo, 140 S. Ct. 2103, 2138 (2020) Robert, C.J., concurring in the judgment.

[8] See, e.g. Hopkins v. Jegley, 968 F. 3d 912 (8th Cir., Aug. 7, 2020) (vacating a District Court injunction in an Arkansas case and remanding “…for reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical, which is controlling…); EMW Women’s Surgical Center v. Friedlander (6th Cir., Oct. 16, 2020) (upholding a Kentucky hospital transfer-agreement requirement “[u]nder the Chief Justice’s controlling opinion…”; Whole Woman’s Health v. Paxton (5th Cir., Oct. 13, 2020) (striking down Texas dilation and evacuation abortion ban, Willett, J. dissenting. Reh. en banc granted, Oct. 30, 2020).

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