Before the Culture Wars


Review of After Roe: The Lost History of the Abortion Debate, by Mary Ziegler

Cambridge: Harvard University Press, 2015

This term, the Supreme Court will hear the first significant challenge to abortion regulation in almost a decade.  In Whole Woman’s Health v. Cole, it will evaluate the constitutionality of a Texas law that would dramatically reduce access to abortion.  In their briefs and in public debate, the opposing camps in the abortion wars are assembling along familiar lines.  Abortion rights advocates are asking the Court to invalidate the statute’s onerous restrictions on abortion providers because they impinge on women’s “fundamental liberty” to terminate a pregnancy prior to viability.  Meanwhile, defenders of the Texas law are urging judicial deference to the state’s asserted interest in protecting women’s health and safety.

Readers who regard these established positions as inevitable outcrops of the Supreme Court’s 1973 decision in Roe v. Wade should reconsider their views in light of Mary Ziegler’s new book, After Roe: The Lost History of the Abortion Debate.  As Ziegler deftly demonstrates, the notion that anti-abortion groups greeted Roe with an outcry for judicial restraint is a post hoc invention. “In the decade after the ruling, pro-lifers did not blame the Roe Court for taking the abortion issue away from the American people,” Ziegler explains. On the contrary, “most leaders of the antiabortion movement believed that the Court had committed the opposite error, failing to protect a constitutional right to life from the uncertainties of democratic politics” (xiii).

Ziegler’s book is packed with corrections and clarifications of this kind. More than forty years after Roe v. Wade was handed down, the Court’s decision remains a focal point in the culture wars. It has also played an outsized role in academic debate. It has fueled critiques of constitutional litigation as a social movement strategy and cast doubt on judicial capacity to protect counter-majoritarian values or stimulate social change.  According to Ziegler, scholars engaged in normative and theoretical projects have accepted assumptions about Roe and its aftermath that are often incomplete and sometimes incorrect. As a result, “we have attributed too much of what followed to the Supreme Court’s decision” (xii).

Drawing on more than one hundred oral histories and a vast array of archival materials, Ziegler offers a more complete account of abortion rights advocacy in the decade after Roe.  She links social movement strategies to the broader political and cultural shifts of the 1970s and early 1980s, including the realignment of the Republican and Democratic parties, the rise of the Religious Right and the New Right, changing perceptions of population control and civil rights, and Ronald Reagan’s embrace of neoliberalism. The book is framed around a series of six “major historical questions that preoccupy commentators across the ideological spectrum” (xix).  Chapter by chapter, Ziegler identifies the “core scholarly conclusions” that have emerged in the literature (xii) and exposes each as an oversimplification or outright fiction.  Indeed, After Roe might have been titled Six Myths about Roe v. Wade, or, Why Everything You Thought You Knew about Roe Was Wrong.

Among the myths Ziegler dispels is the notion that Roe channeled efforts on behalf of reproductive rights into a narrowly focused birth control and abortion campaign, supplanting a robust agenda that also encompassed childcare, education, and health care.  In Ziegler’s telling, the single-issue focus of the mature prochoice movement responded to the demands of electoral politics, not the Supreme Court. Far from constraining movement ambitions, “the Court’s rhetoric served as an important weapon for those seeking a radical reordering of reproductive-health law” (129). During the 1970s, activists insisted that meaningful choice required protection from sex discrimination and forced sterilization, as well as state support for women and families. Only in the early 1980s, when the Equal Rights Amendment failed and neoliberalism and the New Right gained ascendency, did abortion-rights advocates link the language of choice to privacy and autonomy instead.

Ziegler also maintains that the “conventional account of post-Roe polarization … is fundamentally flawed” (xii).  To be sure, some polarization followed the opinion, just as some polarization preceded it.  But in Ziegler’s assessment, scholars have exaggerated the extent of pro-life backlash. Many pro-lifers advocated for sex equality and anti-discrimination laws until the New Right and Religious Right remade movement priorities in the late 1970s and early 1980s. On the other side, some abortion rights advocates were initially open to limited protections for fetal rights, including the regulation of fetal research.  In time, however, they rejected compromise in order to “present[] the opposition as anti-woman rather than pro-life” (212) and to “convince politicians of the intensity and inflexibility of voters’ support for reproductive freedom” (216).

To legal scholars, two of Ziegler’s claims will be especially provocative. First, Ziegler refutes the conventional wisdom that the Supreme Court “intervened prematurely” in the abortion battle, short-circuiting the democratic process (183).  She argues that experimentation survived the Court’s decision, with advocates working “to shape citizens’ views of the Court and its reasoning” (158). That is, democratic deliberation continued unabated, even if it took a different form. In the decade after Roe, activists waged an interpretive battle over the meaning of the Court’s decision.  Eventually, they converged on the understanding that Roe protects a woman’s right to choose. That interpretation attracted new supporters and donors to the competing movements and, presumably, influenced the Court’s resolution of future cases in turn.

Second, Ziegler unsettles the proposition that Roe “provoked a major grassroots pro-life challenge to the legitimacy of the Supreme Court” (xi). Although conservative hostility to the judiciary in such areas as school prayer, busing, and criminal procedure was well developed by the time Roe was decided, abortion opponents were reluctant to malign the courts.  After all, many had argued against abortion on the basis of a fundamental right to fetal life secure from democratic interference—a claim they justified by reference to the Declaration of Independence, the Thirteenth and Fourteenth Amendments to the U.S. Constitution, international human rights law, and even the very substantive due process cases they would subsequently vilify as judicial law-making.

In the years after Roe, pro-lifers tried but failed to protect fetal rights against “the will of shifting majorities” (29).  With a few exceptions, the national prolife leadership resisted an approach premised on states’ rights or judicial restraint, which threatened to undermine the effort to secure a fetal life amendment to the Constitution. Of course, the prolife movement eventually courted powerful New Right partners by casting its resistance to Roe as an objection to judicial overreaching. But political exigencies, not innate opposition to a strong judiciary or the Rights Revolution, pushed pro-life advocates to align their cause with opponents of Warren court liberalism.  It was the Reagan administration that “channeled opposition to Roe into objections to judicial activism,” Ziegler explains (55). Until then, the problem with Roe was its faulty reasoning, not an activist Court.

After Roe was published in June 2015, the same month in which the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges. To Ziegler, writing before the Court’s decision, the stakes of misreading Roe were clear: “As the battle for marriage equality for gays and lesbians builds momentum, commentators across the ideological spectrum” were turning to Roe and its aftermath for guidance (220). In the standard narrative, Roe provoked backlash, polarization, and an impoverished version of reproductive freedom. Given Roe’s role as a “touchstone for those debating … when the Court can create social change”  (220), there was ample reason to highlight the many questions that the Court’s decision left unresolved.

Even as Ziegler disrupts the pat causality of the prevailing accounts of Roe, she accepts that “the Supreme Court’s decision marked a turning point” (221) and “helped to reorient movement priorities” (xiv). This is a crucial qualification. In post-Roe contestation over abortion, sometimes—more often than the existing literature acknowledges—Roe was ancillary or irrelevant. But sometimes it mattered, and sometimes it mattered a great deal.  Certainly activists were reacting to a range of cultural, social, and political factors, not merely to the Court’s decision. But Ziegler’s evidence suggests just how thoroughly Roe was entangled with these broader developments.  No doubt many veterans of the abortion wars would echo the appraisal of one pro-lifer Ziegler interviewed, namely, that Roe was among the most “memorable events of her life” (188).

Ziegler organized the book thematically to foreground her contributions to the literatures on “law and social change, women’s rights, reproductive freedom, and the courts’ influence on American society” (xix-xx). Had she proceeded chronologically instead, the interplay between the various actors and approaches she discusses might have been more apparent.  What was the relationship between abortion proponents’ embrace of women’s rights in the mid-1970s (Chapter 3) and the corresponding rejection of feminist goals among late 1970s pro-lifers (Chapter 6)?  Was the turn to incrementalism within the mainstream pro-life movement (Chapter 2) fueled by abortion advocates’ fallback to choice (Chapter 4)? Did opponents of abortion take up the banner of judicial restraint (Chapter 1) in response to movement reinterpretation of the Court’s decision as protecting a woman’s right to choose (Chapter 5)? And to what extent were the background political shifts Ziegler highlights throughout the book themselves reactions to perceived overreaching by the Court? After Roe invites further investigation of the process through which key players negotiated their many tactical and ideological differences.

That the path of abortion politics after Roe did not follow directly and ineluctably from the Court’s decision is worth stressing (221), but it is also unsurprising.  Rarely is historical change so neat or direct.  In After Roe, Ziegler has begun the project of reconstructing its messier course.  She has shown that advocacy for and against abortion remained fluid in the decade after the Court’s decision.  She has opened space to study how the many ways of favoring or opposing abortion narrowed and hardened into their familiar forms. The history of Roe has proven unduly susceptible to oversimplification, and there is much value in flagging its complexities.  Ziegler hopes that future scholarship will “separate[] the Supreme Court’s decision from everything that followed,” in order to explain how modern abortion politics in fact arose.

The major achievement of After Roe is to reveal the diversity and contradictions of social movement responses to the Court’s decision—the ways in which abortion advocates reacted to Roe and, in turn, redefined its lessons and legacy.  Ziegler’s extensive research and sharp critical analysis force readers to rethink Roe’s place in a much larger political and cultural transformation. After Roe enriches our evolving understanding of the Supreme Court’s decision and the broader contest over abortion in U.S. history.  Perhaps recovering the fluidity and uncertainties that marked Roe’s reception in the decade after the decision will help to reframe the intractable debate that advocates face today.

Posted on 7 December 2015

LAURA WEINRIB is Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School.