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Greenhouse and Siegel reflect on “Before Roe v. Wade” | Hunter of Justice

Greenhouse and Siegel reflect on “Before Roe v. Wade”

by on September 28, 2010  •  In Reproductive rights

Journalist Linda Greenhouse and law professor Reva Siegel recently published Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling.  Following are excerpts from an interviewer by Erin Miller of SCOTUSblog about what they learned in writing the book:

Q – Linda, as a journalist, you’ve been reporting on the legal battle over abortion for a long time.  Your book reprints an article you wrote on the subject for the New York Times in 1970.  How did your experience inform your writing of the book?

My early reporting experience gave me a passing acquaintance with some of the main players, but I can’t say that it really informed the writing of the book. Don’t forget, our book ends with Roe, which was decided on January 22, 1973. As a very young reporter in the early 1970s, I didn’t have the perspective to understand fully what I was witnessing, frankly, and many important events remained in my peripheral vision. I found the experience of reconstructing what was actually going on in those days rather humbling. I wish I had understood then what I know now!

Q - Reva, as a legal scholar, you’ve written extensively on abortion and the law.  How was your approach to the book different than Linda’s?

In writing about debates over abortion, race, and gun rights, I have been examining how social movement conflict can provoke and guide constitutional change.  I had written on the antiabortion movement after Roe, and feminist abortion rights claims before Roe, but in this work on “Roe’s Roots” I had only begun to explore the debate over decriminalization of abortion that feminists joined in the late 1960s. So it was fascinating to reconstruct how arguments for and against legalization of abortion evolved in the decade before the Court decided Roe.

Oddly enough, my recent work on gun rights proved important as well. Since writing on the Court’s changing interpretation of the Second Amendment, I have been interested in the ways that movements and political parties interact in shaping constitutional law.  When we noticed that Richard Nixon shifted position on abortion, we asked why, and uncovered evidence of the Republican Party’s earliest efforts to use abortion in the service of party realignment. In the years before Roe, Kevin Phillips and Pat Buchanan advised Republicans to appeal to abortion to court Catholics and social conservatives who had historically voted with the Democratic Party. A variety of documents in the book explore the roots of political polarization around abortion…

Q – After doing the research for your book, did your thinking about the Roe opinion, or the public debate after Roe, change?  If so, how?

One aspect of Roe that is rather frequently commented upon is the physician-centric nature of its argument. The opinion reads in some ways as if the case was about the rights of doctors rather than the rights of women. And neither does the Court really acknowledge the claims being made on behalf of the unborn. One might ask whether these arguments were simply not made to the Court, or whether the Justices were simply unable to hear them. In the book, we include excerpts from the merits briefs as well as the amicus briefs – and, clearly, it was all there.  In addition, we show that these feminist and right to life arguments were regularly asserted in the several years before the Court ruled.  . So the silences in Roe itself present something of a mystery. We suggest ways in which the Court’s silence might be understood as an effort to diffuse conflict—but in the end leave the question open, as an invitation to debate and further research.

Our book doesn’t really treat the evolution of the public debate after Roe, but some of the material we include certainly raises questions about the widely accepted “backlash” theory – that it was the Supreme Court that created today’s conflict over abortion.. With other historians, we show that courts are not required for conflict: a Catholic-led antiabortion movement energetically opposed decriminalization before Roe. We go on to identify another institutional basis for political polarization around abortion, offering evidence of abortion’s entanglement in party realignment in the period before Roe.  We show that before Roe, Republican strategists working toward Richard Nixon’s reelection in 1972 were pushing opposition to abortion as a way to pry Catholic voters away from their traditional home in the Democratic Party and to use the issue as an instrument of party realignment. Older readers might remember the “triple-A” label that the Republicans pinned on George McGovern, the Democratic nominee – for amnesty, acid, and abortion (although McGovern was actually no abortion-rights crusader.) In an afterword to the book, we draw on work that Reva along with Robert Post published in an article called “Roe Rage” [42 Harvard Civil Rights-Civil Liberties L. Rev. 409 (2007)] to show that, in the decade after Roe, appeals to abortion in the service of party realignment continued. In 1979, conservatives who supported Ronald Reagan’s election helped broker a new coalition of Protestants and Catholics to oppose abortion, in the name of family and faith. Our work points to crucial shifts in the shape of abortion conflict in the years before, and decade after, the Court’s decision.

The Supreme Court’s decision in Roe is commonly viewed as the cause of backlash. Our work identifies another institutional locus of conflict in party realignment—a form of conflict that does not require Supreme Court rulings and can play an important role in shaping their interpretation. Our research on the decade before Roe thus raises questions about the decades after: In what ways was Roe a cause and in what ways a symbol of political polarization?  . We explore the implications of our research for  “Roe-caused-backlash” claims in “Before (and After) Roe v. Wade,” forthcoming in the Yale Law Journal.

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