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A Fresh Look At Roe v. Wade
The Connecticut Law Tribune
When Pulitzer Prize-winning New York Times reporter Linda Greenhouse ended her 30-year career covering the U.S. Supreme Court, Chief Justice John Roberts, a Harvard graduate, wished her well in her new job at "one of the best law schools in New Haven."
Now, on the 40th anniversary of the high court's history-making abortion decision, Greenhouse and Yale Law School co-author Reva Siegel have produced Before Roe v. Wade. This collection of historic materials and commentary takes the reader back to the political, religious and popular thinking of the time. Greenhouse found that the issue then wasn't seen in 1973 as it is now as a womens' rights issue, or a fetal life matter but more of a decision about professionalism and progress. The judges didn't see why their medical counterparts had to face criminal charges for undertaking some of that profession's most difficult treatment decisions.
Greenhouse, Yale's distinguished journalist in residence, is married to Law Tribune Editorial Board member Eugene R. Fidell, a Yale Law School lecturer. She spoke recently with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: What is the objective of this new book about Roe?
LINDA GREENHOUSE: What we were trying to do was recreate the landscape on which Roe landed in 1973. We look back on that period through a lens that I think is distorted by what has happened subsequently. For instance, people assume that the abortion rights movement was anchored in the feminist activity of the late '60s. Actually that's not true. The early stirrings of reform came from the public health community, and the elites of the legal profession. It became part of the feminist agenda only as the '60s moved toward the '70s. That's kind of interesting, and another part is how the justices were responding. How do these five Republican guys find a right to abortion in the Constitution without getting into the doctrine? I think it was clear that they were responding to their elite peers in the [medical and legal] professions.
LAW TRIBUNE: Mostly men, also.
GREENHOUSE: Yes, and those were the voices that resonated with them, and most of them said these criminal abortion laws, anchored in the 19th century, that drive women to the back alley and force doctors to practice medicine at their peril, don't make sense anymore in the second half of the 20th century. That was what the court was responding to, we think.
LAW TRIBUNE: You've collected the amicus briefs. Which are the most interesting?
GREENHOUSE: They're all very different. There were strongly feminist briefs that were presented to the court, but those were not reflected in the ultimate opinion. There are very strong theologically-grounded right-to-life briefs that were presented to the court, and those aren't reflected either. The two dissenting opinions in Roe William Rehnquist's and Byron White's are not based on the fetal life concerns that we now associate with the right-to-life movement, but rather with judicial activism concerns.
LAW TRIBUNE: Do you get the feeling that America is close to reversing Roe v. Wade?
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.