In 2010, Linda Greenhouse, the Pulitzer Prize-winning journalist who spent three decades covering the Court for The New York Times, and Reva Siegel, Professor of Law at Yale, published Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling. (SCOTUSblog’s Q&A with both authors is here.) The authors recently released a second edition of the book, which is available for free from the Yale Law Library or can be printed on demand ($10) from Amazon, with proceeds going to the Yale library.  The second edition includes a new afterword, Before (and After) Roe v. Wade: New Questions About Backlash, in which Greenhouse and Siegel use the source materials republished in the book to challenge the conventional wisdom that, “if the Court had stayed its hand or decided Roe v. Wade on narrower grounds, the nation would have reached a political settlement and avoided backlash.” Once again, Linda Greenhouse has graciously agreed to answer a few questions about her work on this subject.

In the new afterword, you and your co-author Reva Siegel mention a Gallup poll, found in Justice Blackmun’s files, taken the summer before the Court’s decision in Roe. The poll showed strong support among both Republicans and Democrats for leaving decisions about abortions to women and their doctors. The public’s attitude thus seems to be reflected in the outcome of the case. Do you think that the constitutional basis that the Court chose for the ruling — due process and liberty interests, as opposed to women’s equality or another rationale — was equally responsive to public opinion?

When people suggest that Roe should have been decided on an equality/women’s rights basis, they forget that in 1971-72, when the Justices were working on the opinion, the Supreme Court didn’t yet have a jurisprudence of women’s rights. Except ambiguously in Reed v. Reed in 1971, the Equal Protection Clause didn’t have anything to say about sex discrimination. While there were, of course, leading feminists (Betty Friedan, most notably) who by then had made the link between reproductive freedom and women’s equality, and briefs submitted to the Court (which we excerpt in the book) made this argument, that does not appear to have been the general public framing by the time Roe was decided. The Gallup Poll in the summer of 1972, to which you refer, asked people whether they agreed with this statement: “The decision to have an abortion should be made solely by a woman and her physician.” Sixty-four percent of all respondents (and sixty-eight percent of Republicans!) agreed. The woman-and-doctor context was one the public, as well as the Court, was comfortable with.

At the end of the 1960s, according to your research, legal abortions were viewed primarily as advancing four different goals: public health, environmental consciousness and population control, sexual freedom, and “feminist voices.” The Court’s opinion in Roe does not use any of these as justifications for abortion, however. Instead, the Court began from the foundation that abortion is in the public interest, an assumption that you describe as having been hotly contested by a Catholic minority before the opinion was issued.  Given the way the opinion later figured into the political landscape, do you think that backlash would have been minimized or further exacerbated if the Court’s opinion in Roe had done more to acknowledge the social currents to which the majority of the public was responding in their support for liberalized access to abortions?

I don’t think it’s accurate to say that the Court deemed abortion to be “in the public interest.” Rather, the Court weighed a woman’s interest in being able to terminate a pregnancy against the state’s interest in protecting potential life, and found that the balance of those interests shift over the course of the pregnancy; hence, the famous trimester framework. Given that Reva and I believe the evidence refutes the widely held “Roe caused backlash” narrative, I don’t think that a different means of expression by the Court would have changed anything. The public response described as backlash was initially a response to pre-Roe legislative reform, having nothing to do with the Court or with any particular form of argument. As for the opinion itself, very few people either then or now actually read it. And of course in 1992, in Planned Parenthood v. Casey, the Court shifted the balance toward state regulation, and that didn’t exactly lower the temperature of the abortion debate.

You and Reva describe the Republican strategy before Richard Nixon’s 1972 election as a “two-fer”: by opposing the liberalization of abortion laws, Nixon was able to both siphon single-issue Catholic voters away from the Democratic Party and signal social conservatism. In your description, it seems quite clear that opposition to abortion was taken up primarily for pragmatic reasons rather than for ideological reasons having to do with the sanctity of fetal life You also mention that it was not until quite a bit later, at the end of the 1970s, that the abortion reform strategy was expanded to include evangelical Christian voters, many of whom previously viewed abortion as “a Catholic issue.” Does the pragmatic nature of this evolution in strategy provide us with any clues as to how the future of the Republican Party would be shaped by the abortion question?  Relatedly, what was the effect of the Republicans’ strategy on the public’s view of abortion as advancing the four goals mentioned in the last question?

Unlike the Catholic Church, the various Evangelical denominations did not have a position of categorical opposition to abortion at the time Roe was decided. The Evangelicals and Catholics joined forces not over abortion as such, but in a “pro-family” coalition in response to the pendency of the Equal Rights Amendment and the social and cultural revolutions sweeping the country. Opposition to abortion became a plank in the pro-family platform that the Republican Party embraced. The original arguments for abortion reform that had originally attracted many Republicans (two-thirds of whom supported decriminalization on the eve of Roe) were effaced during a decades-long process of party realignment.

 

Justice Brennan, a Catholic Democrat who voted with the majority in Roe, was appointed to the Court in 1956 by Republican President Dwight Eisenhower, who was campaigning for re-election at the time along with his Vice President, Richard Nixon. Another Democrat who sided with the majority, Justice Lewis Powell, was appointed by President Nixon in 1972. It seems that Justice Brennan and Justice Powell especially, and their colleagues to a greater or lesser extent must have had some awareness of the political strategizing going on around them and at least a vague sense of how they figured into it. Do you know whether the Justices reflected at all on how the opinion in Roe might play into such strategizing?

I think the Justices were almost entirely oblivious. The jurisdictional statement in Roe reached the Court in 1970, some two-and-a-half years before the case was actually decided. (The case was first on hold for other cases, and then was argued twice.) It was during this unusually long period that the politics of abortion were heating us, and I haven’t seen evidence that the Justices were particularly aware of what was happening on the outside.

The sterile medical language of Justice Blackmun’s opinion lends it an air of political neutrality, but do you think that advancements in medical technology after the opinion was written played any role in fanning the flames of the Roe backlash? One interesting figure on this point is Bernard Nathanson, an abortion provider whom you credit with bringing abortion onto the women’s movement radar. In 1984, Nathanson narrated the influential “Silent Scream,” which shows abortion “through the victim’s perspective.” Nathanson explains to viewers how the ultrasound, which shows not only the image of the fetus, but its motions, caused him to abandon his earlier position as an abortion rights supporter.  He also points out that ultrasounds became widely used in the United States in 1976, which was of course three years after the Court’s decision. Do you know whether any of the Justices, worried about writing such a medical opinion knowing that future technologies could shift the perception of abortion?

I think the Justices were focused on the case in front of them. The elites of the legal and medical professions supported decriminalization, and from the Court’s point of view, it was time to let doctors perform those abortions they deemed to be in their patients’ best interest without risking criminal prosecution and prison. That was the link the Justices saw between medicine and abortion.

Although it did not initially emerge as a civil rights issue for women, abortion eventually came to be viewed as such. Remembering the consistent pattern of the efforts to dismantle the legal structure of racial segregation, has the abortion rights movement followed a similar pattern of consistency?  What variables were consistent across Roe and Brown v. Board of Education that contributed to political and legal backlash in both instances?

I think it’s a category error to extrapolate from the anti-integration backlash of the 1950s to the conflict over abortion that both preceded and followed Roe. They aren’t the same phenomena. A majority of the public has consistently supported access to legal abortion, at least in some circumstances, and in fact support grew in the immediate aftermath of the decision. That abortion became entangled in partisan politics tells us a good deal about politics but rather little about the ability of a court decision, by itself, to cause conflict.

 

Looking ahead to the Court’s pending review of the same-sex marriage cases, do you anticipate another round of backlash, and why or why not? 

Public support for same-sex marriage is growing with such unanticipated speed that I think all bets are off. I think there’s a good argument that the Perry litigation itself increased public support by causing people to take a fresh look at the issue. I think it’s most unlikely that this Supreme Court will adopt the fifty-state solution and require all states to adopt same-sex marriage. Anything short of that will be met with general approval, I expect.

Do you have any aspirations for how other researchers might advance the ball on the work you and Reva have done? Do the two of you have plans to do more work together on the subject?

There are other angles involving Roe’s reception that we have in mind to pursue someday. But I think the fascinating question for research now is how the gay rights movement has made so much progress so quickly.

 

Posted in Book Reviews, Featured

Recommended Citation: Kali Borkoski, Ask the author: Linda Greenhouse on “Before (and After) Roe v. Wade: New Questions About Backlash”, SCOTUSblog (Mar. 6, 2013, 11:10 AM), http://www.scotusblog.com/2013/03/ask-the-author-linda-greenhouse-on-before-and-after-roe-v-wade-new-questions-about-backlash/