GREENHOUSE: My thoughts on this go back and forth. Five years ago, the [Supreme Court] voted to uphold the federal Partial Birth Abortion [Ban] Act only seven years after they had struck down almost the identical law from the state of Nebraska. The only thing different was that Justice Sandra Day O'Connor had retired; Justice Samuel Alito had taken her place. I thought, 'Well, if they'll be so openly cynical with this particular regulation of abortion, what will make them stop from overturning Roe v. Wade in its entirety?' That's what I thought then.
My sense is that the mood has kind of changed. If you track the ebb and flow of the fortunes of Roe v. Wade, and map those onto what's been happening politically in the country, they track pretty closely. A Wall Street Journal/NBC poll [in mid-January] asked if people would like to see Roe v. Wade overturned, and 70 percent said no, a higher percentage than ever before. I think the atmosphere is turning a little. I think Roe is going to stay on the books.
LAW TRIBUNE: What else did you learn about the period before Roe?
GREENHOUSE: What we found really interesting was what was going on in the various religious denominations. Now, of course, we see conservative Christian groups allied on the right-to-life side, and we assume it was ever thus. Actually, it wasn't. The book has documents from the Southern Baptist Convention, the National Association of Evangelicals every denomination felt, as abortion reform was starting to move through the country, that they had to take a position on abortion. Obviously, the Catholic Church was categorically opposed. But that was the only religious denomination that was categorically opposed. The Southern Baptist Convention, and the evangelicals, they basically endorsed a reformed position that was advocated by the American Law Institute, which was: abortion should be available if the pregnant woman had certain types of problems certifiable by doctors. The position that those groups have come to, as a categorical opposition to abortion, was a post-Roe phenomenon, not a pre-Roe phenomenon...
The other point I wanted to make is that people think everything was peaceful up until Roe, and that once the court ruled, we've had conflict over abortion ever since. But what we show in the book is that there was a great deal of conflict over abortion before the court ruled. Conflict that had nothing to do with courts, because the first stirrings came about in the legislative arena....Did adjudication [in the Supreme Court] create a special backlash that is somehow unique to courts? We argue in the new afterwords of the book that there is no evidence that there is a special kind of conflict that grows out of adjudication. That's relevant to the same-sex marriage case today.
LAW TRIBUNE: Litigating tough cases isn't just opening a Pandora's box…
GREENHOUSE: I think we saw that in California, in the Ninth Circuit. The same-sex marriage case there, far from engendering a backlash, seems to have encouraged others to step forward. There were four different referenda in different states, all of which ended up endorsing same-sex marriage. You can't assume danger lurks every time someone makes an argument to a court.