Originally uploaded at SSRN.

Abstract

In a recent Yale Law Journal article, Linda Greenhouse and Reva Siegel question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. The evidence they highlight shows that political conflict over abortion predated the Roe opinion, spurred by the Catholic Church and by Republican Party strategists seeking to foster party realignment. This enriched picture of the political and social landscape at the time of the decision undermines any simplistic suggestion that Roe served as “the sole cause of backlash” or “single-handedly caused societal polarization and party realignment around the question of abortion.” Careful evaluation of the Court’s handiwork in Roe requires a sophisticated understanding of forces contributing to the abortion conflict, an understanding the authors advance through their research. But such an evaluation also demands a sophisticated understanding of the Roe decision itself, particularly the choices the Justices made in writing the opinion, choices that hampered any stable political resolution of the abortion issue. Supreme Court files from Roe and Doe show that Justice Blackmun circulated successive draft opinions staking out three distinct and increasingly expansive positions on the constitutional right to abortion. The Court ultimately gravitated to the most far-reaching of these formulations, recognizing a right to abortion for any reason until the fetus becomes viable (i.e., able to live outside the womb). This viability rule extended constitutional abortion rights through the second trimester of pregnancy, even though Justices in the majority recognized that resolution of Roe and Doe did not require an opinion on the duration of abortion rights, an issue neither briefed nor argued by the parties. The Court’s unnecessary, unexplained and almost casual adoption of the viability rule created a regime of abortion rights offering far less potential protection for fetal life than most other countries of the world. The Court’s adoption of the viability rule in Roe did not initiate political conflict over abortion, but it did channel and exacerbate the nascent conflict in ways that make a stable resolution difficult to attain. By greatly restricting the range of permissible legislative action, the viability rule disabled legislative bodies from negotiating political compromises like those worked out in other countries. At the same time, the decision facilitated pro-life mobilization, putting abortion rights advocates in the position of defending methods of abortion “susceptible to gruesome description,” as Justice Ginsburg once rather delicately framed the matter. While the political system might have adjusted to a more limited constitutional right, Roe’s extension of abortion rights through the second trimester of pregnancy created a structural misalignment between constitutional law and popular sentiment, given that a large majority of the public believes second trimester abortions should be presumptively illegal. Absent a fairly seismic shift in public opinion about late-term abortions - something that has not occurred in the nearly four decades since Roe - the viability rule made it impossible to enact abortion laws even roughly approximating the views of a majority of Americans. The result has been an intractable battle over abortion, centered on the future of the Court.

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