Ask the Author: Before Roe v. Wade

Journalist Linda Greenhouse and law professor Reva Siegel recently teamed up to publish Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling.  The book is a compilation of original materials from the political dialogue about abortion leading up to the famous 1973 ruling.  The co-authors kindly agreed to answer my questions (below) about their book.

*Greenhouse, the longtime Supreme Court correspondent for the New York Times, teaches at Yale Law School. She writes a bi-weekly “Opinionator” column on law for the Times website.  *Siegel is Nicholas deB. Katzenbach Professor at Yale Law.  In addition to Before Roe v. Wade, one of her other recent publications is The Constitution in 2020 (with Jack Balkin).

1. First, the obvious question: why focus on the debate before Roe?  What did you want to convey about that period?

We had two motives for writing a book about the period before Roe – a book that’s not a history of the case itself.  One was to satisfy our own curiosity: having thought about and written about the abortion issue over the years, we were interested in trying to reconstruct the roots of today’s conflict over abortion – social and political as well as legal. The other motive was to transmit what we knew and what we hoped to learn to a new generation that, if it thinks about abortion at all, only sees the issue in today’s terms, in black and white, rather than as the fluid conversation and the several shades of gray that the documents we collected reflect.

2. 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!

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.

3. The book is a compilation of original source materials with only brief editors’ notes.  Were all of these documents publicly available?  How did you decide which to include?

We could easily have produced a book twice as long (it ended up at 262 pages, not counting the Appendix, which consists of excerpts from the amicus briefs filed in Roe.) So it was a process of winnowing down the rich documentary material that exists. Some of the material was obviously public, in the sense that it was published in books, magazines, and journals. Some material was nominally public, in the sense that documents like Betty Friedan’s speeches and Patrick Buchanan’s memo to President Nixon are housed in documentary collections that are open to researchers who know where to look. Reva’s previous research helped us target these, as well as some of our material that was never public, such as the memorandum discussing strategies for challenging Connecticut’s abortion law, in the fascinating case that became known as “Women v. Connecticut.” That case, actually called Abele v. Markle, became moot when Roe was decided, and basically disappeared from public consciousness. We obtained the strategy and organizing material from participants in the litigation. We also have briefs and other material from the case that is no longer publicly available, and we plan to put it up on a Yale Law School web site.  It is remarkable how many nominally public record documents from litigation of the period are now missing. It is our hope that recovering some of this material will prompt others to reconstruct and preserve the record of litigation before Roe.

4. You note in the book that several of the documents you reproduce were in Justice Harry Blackmun’s files while he was writing Roe.  Among those, is there any particular document that most struck you, and why?

Three documents that were in Justice Blackmun’s collection interested me very much. The first two I had found when I was researching my 2005 biography, “Becoming Justice Blackmun.” One of those was a clipping from the Washington Post of a column by George Gallup reporting in the summer of 1972 a new Gallup poll on abortion. The headline was “Abortion Seen Up to Woman, Doctor,” and the column reported that a majority of Americans in all demographic groups believed that “the decision to have an abortion should be made solely by a woman and her physician.” The surprise was that more Republicans (68%) than Democrats (59%) agreed with that statement. (We reprint the column in the book.)

The second document that was already familiar to me was an article printed in the October 1970 issue of the Mayo Clinic alumni magazine by Dr. Jane E. Hodgson. Dr. Hodgson, an obstetrician in St. Paul, Minn., was about to be put on trial for performing an illegal abortion on a patient who in early pregnancy had contracted German measles, a disease that has a high likelihood of causing serious birth defects. The young woman wanted to terminate the pregnancy and agreed to let Dr. Hodgson make her situation a test case with which to challenge Minnesota’s abortion prohibition. Dr. Hodgson, who was later convicted, concluded her article with this sentence: “Some day, abortion will be a humane medical service, not a felony.” I don’t know whether Justice Blackmun, who was from St. Paul and who retained close ties to the Mayo Clinic, where he had served as general counsel, ever met Dr. Hodgson. In the book, we include an excerpt from the article as well as excerpts from the Minnesota state court record in Dr. Hodgson’s case.

The document in Justice Blackmun’s file that was new to me when I revisited the Library of Congress last summer was an article from the October 1970 issue of the Journal of the Louisiana State Medical Society by Dr. Robert D. Knapp Jr., a friend of the Justice’s from their years together at the Mayo Clinic. Dr. Knapp was strongly opposed to abortion, and his article, entitled “Similarly I Will Not … Cause Abortion,” (a quotation from the Hippocratic Oath) was an argument about why doctors should not perform abortions. It was one of several similar communications that Dr. Knapp sent to Justice Blackmun while Roe v. Wade was pending. Justice Blackmun replied to these transmissions in a friendly way, reminiscing about their days at Mayo, without acknowledging their content. We include an excerpt from the article in the book. Just to add a poignant note – Justice Blackmun’s file also includes a telegram, dated just days before the decision in Roe was issued, informing him that Dr. Knapp had been killed in a private plane crash.

5. 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.