Beyond Backlash: Legal History, Polarization, and Roe V. Wade

Table of ContentsI. Introduction 970II. Beyond Backlash: Roe and American Politics 975III. The Pro-Life Movement and Reproductive Freedom 981A. Trauma, Abortion, and Unintended Pregnancy 983B. Vulnerable Mothers and Reproductive Choice 987IV. Fetal Rights Beyond Abortion 997A. Fetal Research and Vulnerable Human Subjects 999B. The ACLU and Fetal Rights 1002V. Radicalization Outside the Court 1005A. Moving to the Right 1006B. Pro-Life and Antifeminist 1013VI. Roe and the Consequences of Judicial Review 1015VII. Conclusion 1020I. IntroductionIn May 2013, Justice Ruth Bader Ginsburg, perhaps the strongest defender of abortion rights on the Supreme Court, suggested that Roe v. Wade1 "stopped the momentum that was on the side of change."2 As marriage-equality litigation continues to move into the Supreme Court, Ginsburg's comments have revived discussion of Roe's damaging effects. Most often, scholars focus on the ways in which Roe set back the abortion cause, undercutting the progress that the pro-choice movement had made.3 Conventionally, however, we believe that Roe's impact went much further. Scholars from Robin West to Jeffrey Rosen argue that Roe helped to entrench the ideological positions held by those on either side of the issue, precluding any form of productive compromise.4 The polarization produced by Roe spilled over into other legal conflicts about gender, helping to doom the Equal Rights Amendment (ERA), to energize the New Right and the Religious Right, and to put off potentially promising alliances in support of caretaking.5 Beyond backlash, Roe bequeathed to the American people what Emily Bazelon has called "the intractable, depressing national divide over abortion."6Whereas backlash arguments address the harm judicial decisions do to social-change movements, Roe's critics focus on the damage done by judicial intervention to the larger society.7 This criticism, which the Article calls the "beyond backlash" argument, has profound legal consequences. Justice Antonin Scalia has woven this argument into a demand for the overruling of Roe.8 In the broader legal academy, scholars believe that post-Roe polarization provides a powerful warning about the consequences of particular interpretive methods-particularly, when the Court decides too much too soon.9 Forty years after Roe, the decision serves as a central example of the dangers of judicial review.10This Article reevaluates the beyond backlash claim through a careful historical study of abortion politics in the decade after Roe. It unearths a surprising set of negotiations between activists who believed it possible to find common legal ground.* 11 Roe certainly intensified conflict, prompting a nationalization of pro-life activities and sparking an academic debate about judicial review.12 Nonetheless, as the Article argues, the ideological entrenchment we associate with Roe came later than we thought and emerged for reasons beyond the Court's decision.The Article chronicles a complex effort on the part of opposing activists to find consensus-if not on abortion, then on the gender issues associated with it.13 Moderate pro-life activists worked to redefine the legal right to choose, requiring government support for a range of reproductive choices.14 Some in the pro-choice movement supported some form of fetal rights, considering them in the larger context of debate about medical ethics, human experimentation, and human dignity.15 These stories show that judicial review did not intensify abortion conflict in the way we have often believed.Furthermore, the Article provides compelling new evidence that the polarization of the struggle increased at least partly "without the intermediation of judicial review."16 The dynamics of gradual political party realignment in the 1970s, the mobilization of the New Right and the Religious Right, the setbacks confronted by the pro-choice movement, the emergence of effective new pro-life litigation strategies, and the declining popularity of the welfare state all helped to undermine preexisting efforts to find common ground. …