Beyond Roe

It took a lot more than one Supreme Court decision to sour the debate on abortion rights.

Pro-life activists try to block pro-choice activists as the annu
Pro-life activists try to block pro-choice activists as the annual March for Life passes in front of the Supreme Court on Jan. 22, 2015, in Washington.

Photo by Alex Wong/Getty Images

The conventional wisdom around Roe v. Wade is that it might have served women better to wait longer for reproductive rights—that the nation simply wasn’t ready for it. When the Supreme Court decided Roe in 1973, this line of thinking goes, it inadvertently spawned a startlingly successful anti-abortion backlash and a vitriolic culture war that we still haven’t escaped 40-plus years later.

But legal historian Mary Ziegler argues that we overestimate Roe’s hold on our current abortion politics. Her new book, After Roe, which looks at dozens of key players in the pro-life and abortion rights camps of the 1970s and ’80s, shows that it took a lot more than a single Supreme Court decision to polarize the nation and sour our public conversation about abortion. What’s more, according to Ziegler, it didn’t have to be this way. There were—and maybe still are—opportunities for civility and collaboration, as Ziegler explains in this interview, which has been condensed and edited.

Slate: Why did you decide to write this book?

Mary Ziegler: A lot of law classes deal with the question of whether you can use law to change society—which is really important now, especially as we come to what might be the end of the struggle for marriage equality. The questions are: Is this the right move? Has it worked in the past?

Roe is always the cautionary tale. If you’re fighting for equality for transgender individuals or whomever, people will hold up Roe and say, “Well, going through the courts might not be such a good idea.” But no one had actually studied how much Roe did. The warnings about social change through courts that come from Roe are mostly myths. People think that the Supreme Court bestowed this upon us, but the reality was really messy.

Your book dives into the history of the anti-abortion movement’s “incrementalist” legal strategy of chipping away at abortion rights.

Incrementalism means that instead of directly asking for the recognition of fetal rights or outright bans on abortion, you argue that a lot of restrictions are actually compatible with Roe. The newest generation of restrictions is a little bolder, but it’s an extension of a larger, long-term incrementalist strategy.

For most contemporary observers, incrementalism kind of seems inevitable. Actually, it took a long time for abortion opponents to turn to incrementalism, and it’s still very controversial [within the movement]. In the past few years, the movement for personhood amendments to state constitutions has been a mutiny in the ranks of pro-lifers who think that incrementalism is weak, a compromise.

When incrementalism developed, it was really because anti-abortion activists couldn’t get what they wanted: a constitutional amendment that recognized a right to life. Only when they thought they couldn’t overturn Roe did they turn to something else.

What most surprised you in researching the book?

Many anti-abortion activists in the ’70s didn’t believe that they were legal or political conservatives. When they were first talking about fetal rights, they thought unborn children were the next logical minority. They would talk about illegitimate children and unwed mothers and cite constitutional law doctrines associated with the left, not the right. They weren’t particularly concerned about judicial activism.

What was also surprising to me was that there was a very different path the movement could have taken, especially in terms of legal strategy and incrementalism. They wanted to be the next civil rights movement. In the ’70s there were a lot of ways to be pro-choice or pro-life, and over time that became harder. A lot of people had to go along with the changing times or be left out. In the ’80s, when it was much easier for the pro-choice and pro-life movements to see which political party would support them, both movements changed as a matter of political survival.

You write that, early on, women’s groups didn’t frame their arguments in support of abortion rights around women’s autonomy or freedom. Why not?

You have to remember— this is the ’60s and early ’70s. Women weren’t taken seriously in the workplace, or sometimes in political movements too. They had to make what they saw as the most broadly appealing argument. So instead of saying, “Women should have the right to do this,” they said, “If women have the right to do this, there will be all these desirable consequences.”

They latched onto population control. It seems weird now—and it’s been discredited and associated with racism since—but at the time, population control was mainstream and resonated with people on both sides of the aisle. George H.W. Bush was a big population-control guy, but so were many Democrats. Population control meant different things to different people. For feminists who used the rhetoric, population control meant a support for environmentalism and an unapologetic sexuality. But it did have a broad appeal.

It was only after Roe and after population control became discredited that you began to hear this language about women having a right to an abortion no matter what the consequences—about abortion as a liberty all women should have, not a means to a social end.

How did the pro-choice framework come about in the early ’80s?

At that time, the ideas of welfare and the government helping people were becoming really unpopular with Republicans and Democrats. So [abortion rights advocates] were looking for a way to talk that would reach voters. In that context, “choice” seems awesome. “Choice” gets rid of the word abortion, which anti-abortion groups had stigmatized. Second, by emphasizing choice, they’re saying, “We just want the state to leave us alone,” which is the same language Ronald Reagan was using at the time to condemn the welfare state.

Now, “leave us alone” is great if you’re middle class or up and you have the means to terminate a pregnancy or raise a child. But if you’re poor and those decisions aren’t available to you in meaningful ways, then talking about freedom from the government is just not realistic. Feminists understood this back when they started talking about “choice,” but they were doing what they thought they had to do to survive politically, not because they weren’t interested in the rights of poor women.

You describe how advocates in the group Feminists for Life tried to collaborate with women’s groups on other issues but were rebuffed.

Some of that was strategic. It’s a lot easier to have a political opponent who is discredited and irrational than one that is diverse and nuanced. Both sides did a lot of [discrediting of their opponents]. People who were pro-choice were “baby-killers”; people who were pro-life were anti-woman. Part of it was that people believed very strongly in their end goal and did what they needed to do to get there.

But is there any indication that camps on either side of the debate can ever collaborate, maybe on an issue like subsidized child care or early education?

The only possibility that sort of seems alive is around pregnancy discrimination. Last year the Supreme Court decided a case on pregnancy discrimination [at UPS]. A striking thing about it was that pro-life groups got involved to call for more protections for pregnant women. The issue had been pretty important in the ’70s, and I was surprised to see it happening again, because generally anti-abortion groups are now aligned with the Republican Party, which is not generally in favor of anti-discrimination protections at work.