Much like Brown v. Board of Education, Roe v. Wade had a circuitous journey to the Court. There were actually two cases, considered together: Roe, which challenged a 19th-century Texas statute criminalizing abortions other than to save the life of the mother; and Doe v. Bolton, which challenged a Georgia statute that had additional exceptions for pregnancies that resulted from rape, that involved a “serious defect” in a fetus, or that risked “injury” to the mother’s “health” (which had been interpreted to include psychological well-being). Physicians, not mothers, were targeted—and physicians themselves had little claim to privacy, which made the appeals different from Griswold and Eisenstadt. Both cases were initially argued in December 1971. But with two Court vacancies unfilled—and with substantial internal disagreement among the seven justices over the constitutional defects in the laws, and how far a woman’s right to privacy ought to go in the context of “bearing a child”—rulings were deferred.
Justice William Brennan suspected they might also have been postponed because of presidential politics. According to his case histories, Harry Blackmun and Warren Burger were “concerned about the impact” Roe and Doe could have on the 1972 race between Richard Nixon and George McGovern. The cases were reargued the following year, with newly appointed Justices Lewis Powell and William Rehnquist in their seats.
The Court knew the abortion issue was brewing. Since the late 1960s, about a third of the states had either expanded their range of exceptions or repealed their abortion laws at least up to a certain stage in a pregnancy. Meanwhile, pro-choice advocates began looking to federal courts to achieve what legislatures had denied. Not only did the courts offer the prospect of victory, but if that victory had a constitutional dimension, it would be invulnerable to legislative interference. In early 1971, the first of those cases, United States v. Vuitch, made it to the Supreme Court. “Here we go in the abortion field,” Blackmun declared in a memo to himself. He offered a tentative view of where he would come down. “I may have to push myself a bit,” he wrote, “but I would not be offended by the extension of privacy concepts” to abortion. But the justices ended up avoiding the key question of whether there was a constitutional right to abortion (disposing of the appeal on other grounds). On the Friday after the Court ruled in Vuitch, however, it agreed to hear Roe and Doe.
In the 14 months that passed between December 1971, when the cases were first argued, and January 1973, when the decisions were handed down, Blackmun, their author, evidently paid no attention to whether the Court ought to be the branch to resolve the abortion debate. Nor did he seem to have especially strong views about a constitutional right to privacy or to personal liberty. That was more Brennan’s passion. Instead, Blackmun conceived of his role as a benevolent, paternalistic expert committed both to ending the indiscriminate criminalization of abortion and to giving physicians greater discretion to treat their patients. After all, he had been in-house counsel to the Mayo Clinic before becoming a judge. He had even spent a week during the Court’s summer recess of 1972 at the clinic’s library researching the history of abortion. Who better to sort out the issue? Why have the unending back-and-forth disputation of the political arena when he, and the Court, could solve it once and for all?
On January 22, 1973, American constitutional law changed. That was the day Roe v. Wade came down. Knowing it would be a historic Monday morning, Blackmun had invited his wife to the Court. With the self-drama that Anthony Kennedy would display two decades later, Blackmun had already reckoned in private musings that the Court would be promptly “excoriated” for its ruling, though his opinion contrasted strikingly with Warren’s effort in Brown to win public acceptance of the decision. For this day, Blackmun had prepared a summary of his majority opinion. That wasn’t unusual. His intention to distribute it to reporters, however, was. Brennan, backed by other justices, talked him out of it.
From his seat on the far right end of the bench, Blackmun read his summary: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy…of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training…are all likely to color one’s thinking.”
There wasn’t any mention of constitutional law, but it was a refreshingly candid admission of both the difficulty of the case and the fallibility of any justice. They were words one might have expected from storied jurists like Oliver Wendell Holmes Jr. or Learned Hand, who always worried about interceding. They were words that might have advised circumspection, as well as respect for legislatures that presumably had more experience dealing with “sensitive and emotional” controversies, and “absolute convictions,” in diametric opposition. But not for Harry Blackmun or the other justices who joined his 7-to-2 opinion that declared abortion to be a fundamental right under the Constitution—thereby short-circuiting legislative debate, which was born of different “philosophies,” “experiences,” “exposure to the raw edges of human existence,” and “religious training.”
In his full 52-page ruling, Blackmun first reviewed the history of attitudes toward abortion since the Persian Empire, emphasizing that restrictions dated only to the 19th century. Next, he ran through the range of cases that touched on notions of privacy. There was Justice Louis Brandeis’s celebrated dictum in a 1928 dissent about the “right to be let alone.” There was Skinner in 1942, about the sterilization of felons, as well as cases on parents’ rights to educate their children as they saw fit. There also was Loving v. Virginia, which in 1967 struck down state bans on interracial marriage chiefly on equal protection grounds. In that unanimous decision, the justices said antimiscegenation laws, even though applying equally to blacks and whites, were an “odious” and “invidious” racial classification. And there were the recent Griswold and Eisenstadt rulings on contraception.
From these cases, Blackmun announced without further explanation, emerged a “right of privacy” that was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” That right burst forth from the Due Process Clause of the Fourteenth Amendment—its “concept of personal liberty,” according to Blackmun (though he seemed as much interested in the liberty of physicians, his fellow professionals, as in that of women). And that was it. With a wave of the judicial wand, without more of an accounting of why, abortion was placed in the pantheon of sacred American freedoms, with such rights as expression, religion, jury trials, and unsegregated public schools. Those rights, and others, had a basis in constitutional text or structure or history. Abortion did not, so it had to be read into a constitutional “concept of personal liberty.” This was substantive due process, no doubt well intentioned, with a vengeance. The justices were discovering rights that seemed very distant from text or structure or history.
Nor could Blackmun attempt to root Roe in Footnote Four of Carolene Products and its explanation for why the Court should examine certain legislation more skeptically. Abortion didn’t involve rights specifically mentioned in the Constitution. Abortion laws didn’t single out “discrete or insular minorities,” unless one suggested women were still firmly in that category. And the restrictions on abortion didn’t interfere with regular political processes or the power of discontented citizens to find redress through them.
Having declared abortion a constitutional right ipse dixit—and, by doing so, invalidating the laws of 46 states—all that was left for Blackmun, at least in his own mind, was to map out a medical regime that the Court concluded would balance the irreconcilable interests of the woman and the fetus. Blackmun’s only hint of humility was that he wouldn’t be settling “the difficult question of when life begins.” Conceding that “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus,” he said, “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” But apparently, it was in a position to devise detailed regulations, as if Blackmun had become a hospital administrator. In Brown, by contrast, the Court had proceeded gingerly, declining to order school desegregation right away; instead the justices asked parties for guidance, ordered another argument, and waited a year to come up with “all deliberate speed.”
Guided by Brennan, as well as by four other justices who had indicated they would vote to void the Texas and Georgia statutes, Blackmun used his medical proficiency to codify a sliding-scale trimester approach. During the first trimester, the abortion decision would be left to the mother and her physician. Thereafter, government could regulate abortion to keep it safe for the mother. And only after viability, then generally thought to begin at the start of the third trimester, could government—in the name of the unborn—prohibit abortions, except when they were necessary to preserve the mother’s life or health. Even if advances in technology would make viability a changing line of demarcation—a decade later, Sandra Day O’Connor, newly on the Court, would warn that the trimester framework was “clearly on a collision course with itself”—in political terms this sounded like an estimably balanced solution. One could imagine this type of proposal being worked out in a hospital committee or in a Senate cloakroom. The written negotiations between Blackmun and his colleagues had all the attributes of a legislative markup.
But as a matter of constitutional law, it was preposterous. There are various doctrinal containers on the ship of judicial interpretation: deference to other governmental branches; respect for legislatures as laboratories of experimentation; conscientious analogy to past rulings when recognizing new rights; an inclination toward the narrow over the broad; and fidelity to neutral principles, regardless of the result they dictate in a particular case. The canons are general and can even be in conflict: Deference, for example, can collide with neutral principles that necessitate judicial action. But Blackmun tossed all of them overboard.
Why was viability the “magic moment” at which a state’s interest in the fetus prevailed? Blackmun’s reply: “The fetus then presumably has the capability of meaningful life outside the mother’s womb.” But as John Hart Ely wrote, that seemed “to mistake a definition for a syllogism.” In his own notes, Blackmun acknowledged that a constitutional rule built on trimesters was “arbitrary.”
There were other analytical deficiencies in the opinion. Unlike in Griswold, the Court didn’t try to ground its ruling in specific provisions of the Bill of Rights; the Due Process Clause, protecting “liberty,” was plenty for Blackmun. And Roe certainly couldn’t be justified as a decision barring the governmental snooping that was required to enforce the statutes in Griswold or Eisenstadt. A doctor’s office, regulated by the grant of a state license, may be private, but it’s not akin to the bedroom. Even if one accepts some generalized constitutional foundation for a “right of privacy”—penumbral or otherwise—just what is it exactly that puts abortion within its ambit? Saying the right “was broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” didn’t begin to constitute an argument.
In Blackmun’s Roe, “liberty” and “due process” created an interpretative smorgasbord from which the justices could choose the dishes they liked best. Carried to their extreme, those constitutional clauses appeared to give the justices free rein to obliterate laws simply because they happened to disagree with them. The Court clearly had not absorbed its own lessons about reading “liberty” and “due process” too expansively or uncritically. It was true that rulings invoking substantive due process dating to the early 20th century had said, for example, that states couldn’t limit foreign language education or require students to attend public school. But these rulings were as much about settled First Amendment principles. Roe was fixed in far less.
The dissenters in Roe, along with a legion of scholarly critics in the decades since, feasted on its failings: the arbitrariness of the trimester approach; barely any discussion of a state’s obvious interest in the continuing existence of a fetus; the gratuitousness of throwing out the entire Texas statute rather than only its most restrictive features; and the hypocrisy of resuscitating Lochner’s substantive due process without admitting it. (Early in his Roe opinion, Blackmun even cited Justice Holmes in Lochner, somehow claiming he was following Holmes in not second-guessing state legislative judgments.)
Yet look closely at the Roe dissent by William Rehnquist and Byron White. “If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy,” Rehnquist wrote, there would be “little doubt” the statute would fall. But why’s that? Could not a legislature conclude, for example, that the interests of a healthy fetus override those of a feeble mother? What if she was carrying twins? To the extent that even Blackmun admitted the Court wasn’t going near “the difficult question of when life begins,” why would the dissenters not honor a legislature’s view that a fetus’s “right to life” generally took precedence over a mother’s interests? What if a legislature required abortions in the case of some fetuses—say, those that clearly wouldn’t make it till birth? It was all well and good for Rehnquist and White to call Roe “an improvident and extravagant exercise of the power of judicial review,” but the dissenters couldn’t avoid inserting their own values. Their disagreement with Blackmun seemed mostly about result.
Among law professors, Ely wrote the most cutting critique of Roe, not long after it was issued. It wasn’t just that Ely was a rising star in the legal academy—then at Yale, soon off to Harvard (and later dean at Stanford); he had been a prized law clerk to Chief Justice Warren, for whom he had earlier worked as a young staffer on the Warren Commission that investigated the assassination of President Kennedy. What rendered the Elysian evaluation so devastating was that it came from an acknowledged progressive who agreed with the outcome in Roe. Ely also had no problem with inferring a generalized constitutional right of privacy, “so long as some care is taken in defining the sort of right the inference will support.” The “problem with Roe,” he wrote, “is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business.”
In the most quoted section of his Yale Law Journal essay, “The Wages of Crying Wolf,” Ely admitted his progressive view—and stressed it didn’t matter. Roe, he said, is “a very bad decision. Not because it will perceptibly weaken the Court—it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s—it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” “Crying Wolf” proved to be greatly influential in academe—rightly so—and provoked other commentary from progressive scholars who might otherwise have let the faults of Roe go.
Twenty years after Roe and just three months before she was nominated to the Court, Ruth Bader Ginsburg—her generation’s champion of women’s rights—herself expressed laments about the ruling. The Texas statute criminalizing almost all abortions was among the most draconian. “Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on…to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force,” she wrote, to the consternation of pro-choice advocates. “Would there have been the 20-year controversy we have witnessed?” Had the justices chosen a narrower path, settling for “no grand philosophy”—one that opened “a dialogue with, not a diatribe against, co-equal departments of government [and] state authorities”—the Court might have avoided the polarization caused by “a well-organized and vocal right-to-life movement.”
According to Ginsburg, the justices also would have been wiser to ground Roe in a woman’s right to equal protection, rather than in the amorphous concept of a right to privacy. Was not “disadvantageous treatment of a woman because of her pregnancy and reproductive choice” a “paradigm case of discrimination on the basis of sex”? Unlike contraception, which both men and women could use, only women faced pregnancy and only they were being forced by government to use their bodies as incubators. Without some control of their reproductive lives, the argument went, women were not as able as men to participate fully in society. It would’ve been a much better argument in favor of the result in Roe than what Blackmun had advanced. For starters, it was an argument.
Among the 12 justices who’ve been on the Court since Roe v. Wade, Ginsburg wasn’t alone in criticizing the ruling. Two, Antonin Scalia and Clarence Thomas, in subsequent abortion decisions, urged the Court to overturn it completely. Other justices—and not just in the conservative bloc—have privately suggested they would never have voted for Roe in the broad way in which it was written. Of course, it’s easy to say that anonymously, without consequence.
The actual Roe opinion was so unimpressive in constitutional grounding that a cottage industry developed around rehabilitating it much in the way Ginsburg proposed. A group of 11 widely known law professors published an entire book of doctrinal do-overs, What Roe v. Wade Should Have Said. Richard Posner, the iconoclastic federal judge (now retired), called Roe the “Wandering Jew of constitutional law,” searching in vain for an explanatory “home.”
Though Blackmun had anticipated criticism, he misread its lasting repercussions. Three months before Roe came down, as he continued to redo his opinion, Blackmun reflected on the probable fallout. “It will be an unsettled period for a while,” he scribbled at the end of an outline. That prediction indicated either manifest naïveté or palpable vanity on the part of a justice far removed from the front lines of politics.
Roe turned the Court into a storm center ever after, though it took two presidential election cycles for the corrosive effects to set in. The ruling wasn’t even the top story the next morning. The headlines were about the death of a former president, Lyndon Johnson. A day later, the news turned to the announcement of a cease-fire in Vietnam. That war eventually ended, but in time Roe would alter U.S. society, politics and the Court.
Brown v. Board of Education provides an instructive contrast. The other branches and the public outside the South largely accepted that watershed ruling, even as segregation persisted. While such acceptance by itself doesn’t confer legitimacy on Brown, in theory the people weren’t entirely disconnected from what their Court did. Roe yielded a different dynamic. After the ruling, the country’s divisions over abortion—reflected in polls, political campaigns, and legislative reform or the lack of it—continued. More important, the acrimony pivoted toward the Court.
Blackmun himself was picketed and heckled in public appearances. He came to need bodyguards. Hate mail poured into his chambers for the two decades he remained on the Court. Other justices received unkind letters after controversial rulings on such topics as race, reapportionment, prayer in public schools, criminal defendants and Communist subversives. But the telegrams and postcards to Blackmun far surpassed them in number and wrath. He saved them all, including notes from other members of the Court who had gotten complaints. “I am getting anniversary letters on abortion,” Justice Douglas wrote him a year after Roe in a note during an argument. “They are much nastier….The best one is from a man who prays that my pacemaker will fail.” The tens of thousands of letters seemed to become a point of pride for Blackmun, as he came to take ownership of a ruling about which he had been ambivalent at first.
Many hands went into the Roe written product, not the least of which were Brennan’s. In offering advice, solicited and otherwise, and in writing Eisenstadt broadly, he played a major part, even if the respective papers of Blackmun and Brennan differ in suggesting how big a role it was. But when the Washingtonian magazine in 1993 published a piece titled “The Real Story Behind Roe v. Wade,” implying Brennan was the master marionettist, Blackmun was irate. “Hogwash,” he wrote on a Post-it that he stuck on a copy of the article he saved.
Antipathy to Roe extended beyond the personal to the institutional. Before the appeal came to the Court, activists on both sides of the abortion debate focused on state politics. Legislation and popular referendums had produced mixed results. Some states—like California in 1967, with the backing of the Republican governor, Ronald Reagan—liberalized their abortion laws. Other states declined to do so. In Michigan, in 1972, a ballot measure to permit early-term abortions was rejected by 22 percentage points. A few states that had adopted reforms faced pressure to repeal them. That same year, the New York State legislature voted to do so, foiled only by a veto by Governor Nelson Rockefeller, another Republican.
Some progressive critics of Roe became fond of arguing the ruling was all the more injudicious because it cut off abortion reform that by and large would have led to a national consensus if only politics had been allowed to run its course. “By relying on the courts to do their job for them,” declared the New Republic five years after Roe, pro-choicers have “abandoned the process of democracy to the ardent right-to-lifers.” Roe, the magazine said, “killed off the movement for abortion reform, by making it seem superfluous.” The liberal essayist Barbara Ehrenreich called Roe “tragically premature.” For “in the early 1970s,” she wrote, there had been “no widespread feminist effort to reach out to, and convince, the undecided public of the justice of what we called abortion rights.” The problem with that analysis was that it was hardly apparent that any pro-choice consensus was forming. More to the point, the analysis seemed irrelevant. The possibility of consensus wasn’t much of an argument for the Court abstaining—just as the absence of that consensus didn’t justify the Court intervening. The Court wasn’t there to do the policy bidding of other branches.
For their part, Roe’s academic cheerleaders—or at least those who sought to minimize the institutional wreckage it caused—liked to argue that political ferment over abortion in the years before the ruling demonstrated that the turbulence following it had little to do with the actual decision. “Roe backlash” was a myth, according to its defenders. “Juricentric” explanations for the “deformed” politics that followed tended to forget about pre-Roe political and religious division, they insisted. The “pro-life” movement—newly branded as such after the ruling, the better to project a positive image—already had been mobilizing in some states, backed in particular by the Catholic Church. Maybe so, though there’s no way to know if those efforts would have continued to gain traction in the absence of Roe. There’s ample evidence of mobilization on the “pro-choice” side as well. But the mere fact of opposition to abortion before Roe doesn’t at all prove that rancor after it was simply a continuation of the earlier activity. After Roe, it was undeniable that pro-life efforts ramped up, and over time a vigorous anti-abortion crusade emerged. If nothing more, Roe v. Wade turned a gale into a hurricane—and demobilized pro-choice supporters who thought the battle had been won.
The apologia for Roe also ignored that pro-life ferocity was now going to be directed at a new target: the Supreme Court. Roe’s defenders missed the distinction. It was one thing to disagree with your opponents in the legislature, even on matters of life and death. But the struggle was ongoing. Abortion supporters won some, abortion opponents won others. What a legislature did or didn’t do this session could always be revisited next round. All you needed was to win a few more votes. Such was politics, admittedly imperfect, at work—and what happened in many other countries as consensus of sorts was reached.
By banishing the moral debate from the political forum where it was best ventilated and where the loser recognized that tomorrow was another day, the justices in Roe shut off that safety valve in a democracy. Abortion was no longer fair game for compromise that worked itself out, state by state—offering the promise of adjustment that a one-fell-swoop Court pronouncement did not. Thus, even though the Court wasn’t the sole cause of galvanizing pro-life forces, Roe gave the movement a jump-start that would energize it since. Moreover, Roe offered a freer pass to activists to pander. They could talk about policies that, under Roe, could never be enacted.
After Roe, of course, most pro-life legislative lobbying would be pointless. There might be room for legislators to mandate a 24-hour waiting period before getting an abortion, or parental notification for minors, or spousal awareness or consent. These would be significant limitations to abortion. And pro-lifers could futilely demand that Congress and state legislatures pass a constitutional amendment overturning Roe. But the core issue of its legality had been taken off the table. In the face of an imperious Court, legislators were now irrelevant—and they knew it.
The neutering of legislatures was something that had concerned an important forefather of judicial restraint, James Bradley Thayer of Harvard Law School, back in the late 19th century. Thayer’s disciples included Holmes, with whom he once practiced law; Louis Brandeis, who was a student; and Felix Frankfurter, who called Thayer “the great master of constitutional law”; as well as Learned Hand and Alexander Bickel. In 1893, even before Lochner had taken hold, Thayer had warned that overly aggressive courts would trivialize legislators, which in turn would “dwarf the political capacity of the people” and “deaden its sense of moral responsibility.” If the public came to see judges as the principal guardians of its rights, then it wouldn’t bother to direct its anger—“the thunderbolt of popular condemnation”—at legislatures for passing foolish laws. In addition, by focusing on constitutional litigation and the “fly paper” of courts, activists siphoned off resources from possible legislative reform.
And that was precisely what played out in the Lochner era; then during the New Deal, when laissez-faire conservatives sought out the justices; and later during the Warren Court, when liberals pursued judicial relief for laws they didn’t like. Today, under Chief Justice Roberts, it’s the conservatives again most often snubbing the legislature—that’s what resulted in Heller and Citizens United and Shelby County. It wasn’t that Thayer had blind faith in legislatures—or the people. He believed only that they were the most legitimate branch. “Under no system can the power of the courts go far to save a people from ruin,” he wrote. “Our chief protection lies elsewhere.” If the people wanted government by judiciary, they no longer had a democracy.
In recent years, there has been much rightful skepticism about the ability of Congress and state legislatures to do their jobs. But whatever their shortcomings, were they not probably in a better position to allocate resources to detailed research, extended debate and, on occasion, compromise? As a former Brennan clerk and later dean of Stanford Law School, Larry Kramer, tartly observed, all the Court does is read partisan briefs, hold oral argument, take a vote in the conference, and typically assign one inexperienced law clerk to deal with it.
The cloistered justices themselves didn’t get the uproar over Roe. That was evident soon after the decision. According to Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, Justice Potter Stewart and an aide were driving from the Court to the White House for a swearing-in ceremony. The day was the anniversary of Roe a few years before. Spotting a noisy demonstration, Stewart asked what was up. The aide explained those were pro-life activists on the way to the Court. Stewart was clueless. “I don’t understand,” he said. “We decided that.”
After Roe, abortion advocates had little left to demand of anybody. Other than seeking funding for indigent women who wanted the procedure, they only had to play defense—their Roe triumph had the unintended consequence of lulling them into complacency while the pro-life movement gathered steam. “Pro-choice people went on a long siesta,” the head of the L.A. chapter of Planned Parenthood told the New York Times in 1977. “The political organization and momentum that had changed laws nationwide dissipated in celebration of Court victory,” one historian concluded.
Abortion opponents, however, fought a new kind of war, using different tactics and language. That meant going after the Court, making it their main political prize. The pro-life movement centered on chipping away at Roe in subsequent cases and on installing anti-Roe justices, which meant turning Senate confirmation hearings on Court nominations into proxies on Roe. It also meant some presidential candidates now started to make the Court a key political issue, for the only way to get rid of Roe (or retain it) was to appoint the right justices. Before Roe, pro-lifers had to wage a battle on multiple fronts. In Roe, as Ginsburg put it in 2013, the Court gave them “a single target to aim at.”
The enduring politicization of the Court far exceeded what happened to it after Brown v. Board of Education or, for that matter, after Dred Scott. That politicization alone undercut the claim by Roe apologists that ideological and party realignment already underway meant the ruling didn’t have far-reaching ramifications. Far from ending the abortion controversy, Roe v. Wade was both unifying and polarizing. For many activists on the right, abortion provided the all-consuming issue that the Vietnam War had provided for the left. And with legislatures eliminated as a vehicle for finding a middle ground, positions hardened.
There were abortion opponents in both Democratic and Republican ranks. But the GOP was the more logical launching point for the new pro-life movement. Republicans generally were more conservative than Democrats on social issues, more accommodating on religious interests, and more welcoming to evangelicals. The incipient Religious Right thus had but one party to affiliate with. Just as some scholars have suggested that ideological backlash due to Roe was exaggerated, they say blaming Roe for radicalizing the GOP was historical overkill. The Republican Party was already veering rightward. Rev. Jerry Falwell and the Moral Majority were coming anyway. “Rockefeller Republicans”—those in the party, like Nelson Rockefeller, who had long held moderate to liberal views on cultural issues and other domestic policies—were on their way out. Reagan’s ascension to the presidency seven years after Roe would have happened, regardless.
These scholars had a point, showing that Roe alone didn’t further drive in the wedge between the parties. Yet Roe not being the exclusive cause hardly means it wasn’t a cause. The parties may indeed have been realigning, a progression that could be traced to Brown v. Board of Education, as Southern conservatives fled Democratic ranks. But Roe hastened the GOP turn to the right and its metamorphosis into the stridently pro-life party it has been since the 1980s. Republicans worried about a range of issues, from school prayer and crime, to affirmative action and the Equal Rights Amendment, but nothing came to transfix movement conservatives more than abortion. For the GOP, Roe became the Great White Whale.
It didn’t happen overnight. But one wouldn’t have expected otherwise, given numerous other conservative flashpoints. The Catholic hierarchy issued the expected condemnations of Roe. Eight months after the ruling, the National Conference of Catholic Bishops called for a “grassroots pro-life organization” to coalesce on a “right to life” constitutional amendment to overturn Roe. In 1974, a Senate subcommittee held hearings on various versions of an amendment; according to one count, 68 versions had been introduced the prior year. But many non-Catholic religious activists reacted more moderately. Even some evangelicals, like the Southern Baptist Convention, initially committed to “a middle ground between the extreme of abortion on demand and the opposite extreme of all abortion as murder.” During the 1975 Senate confirmation hearings for John Paul Stevens—nominated to the Court by President Ford to replace Justice Douglas—not a single question was asked about Roe. Obsessing over it during confirmation hearings didn’t really begin until Sandra Day O’Connor in 1981.
Within the Republican Party, reactions to Roe had yet to reach critical mass. President Nixon issued no public comment when Roe was announced. (Oval Office tapes released many years later indicated he was uncertain. On the one hand, he believed abortions might promote “permissiveness”; on the other hand, he thought they might be necessary, like “when you have a black and a white, or a rape.”) Ford, his successor, offered little more, ambivalent perhaps because his wife Betty vocally supported abortion rights. In a letter to the archbishop of Cincinnati, for example, he triangulated, stating he had “consistently opposed” Roe because it constituted “abortion on demand,” but any right-to-life amendment had to “recognize and provide for exceptional cases.” His support for an amendment was predicated less on the morality of abortion than simply on returning its regulation to state control.
In 1976, during the GOP’s presidential primaries—its first since Roe—Ford similarly tried to stay away from it. But his opponent, Ronald Reagan, pushed hard to the right, demanding a constitutional amendment. Never mind that Reagan, as California governor nine years earlier, had signed a reform bill that led to hundreds of thousands of abortions in the state. Before the first primary, Newsweek predicted abortion could be “1976’s sleeper issue.” Reagan had come to understand the power of abortion—and what the Court had wrought—as a wedge issue. Although Ford prevailed in the primaries, Reagan had established himself as “the darling” of pro-life groups. And the Republican platform that year, despite urging “a continuance of the public dialogue on abortion,” called for a constitutional amendment “to restore protection of the right to life for unborn children.”
In the general election campaign, abortion came up only sporadically, since neither candidate placed as much primacy on it as Reagan had in the primaries. For his part, Jimmy Carter, the Democrat, successfully navigated the issue most of the time. He was an overtly religious, born-again Christian and personally opposed abortion, though, like Ford, he waffled on a constitutional amendment. While that was enough to capture traditional liberal states, he wound up winning the election chiefly because of the support of Southern evangelicals.
But the 1976 campaign was a harbinger. Despite Roe lacking a major role in the outcome of the race, the ruling demonstrated that a core of voters, especially in the GOP primaries, cared deeply about “the rights of the unborn.” It was beside the point that those voters didn’t constitute a sizable percentage. These were the new single-issue voters, who terrified pro-choice Republican politicians who supported federal funding for Medicaid abortions. Pro-lifers “are a very significant force,” Senator Bob Packwood of Oregon explained. “They are people who are with you 99 percent of the time—but if you vote against them on this issue it doesn’t matter what else you stand for.” Not that long after, the evangelical magazine Christianity Today warned of merging single-issue morality with politics. “Too narrow a front in battling for a moral crusade, or for a truly biblical involvement in politics, could be disastrous,” an editorial stated. “It could lead to the election of a moron who holds the right view on abortion.”
Overall public opinion, however, wasn’t shifting. According to Gallup in 1975, a significant majority of the country continued to favor legalized abortion in at least some cases (and has continued to do so ever since). But the frustration and fervor of opponents was contagious; soon enough, they were able to get a majority of states to enact new abortion restrictions. Had Roe never happened—had abortion remained a decentralized, legislative battle, even in the context of the larger culture wars—future presidential races might have been very different. And members of Congress would not have been as polarized on the narrow fiscal issues about abortion that the Court had left to them.
By the next presidential election, in 1980, evangelicals had turned on Carter. Whereas in 1976 polls indicated that nearly 50 percent of evangelical voters chose him—far more than had backed prior Democratic presidential candidates—that percentage now plummeted. One pollster suggested that Carter would have won the popular vote had it not been for the Religious Right. Carter was in electoral trouble for reasons having nothing to do with abortion: the Iran hostage crisis, high interest rates, energy shortages, Soviet aggression, and a primary challenge from Senator Ted Kennedy. But abortion, too, was an issue. Throughout his term, even though Carter hadn’t endorsed Roe and even though he opposed federal funding for abortion, he refused to support a constitutional amendment overturning Roe. It also helped the pro-life cause that the number of abortions had gone up since Roe—no surprise, but the data nonetheless made real what in 1973 remained abstract. Many evangelicals viewed as unforgivable the refusal of Carter—the Sunday school preacher from Plains, Georgia—to be more with the pro-life cause.
Much as Reagan had shown in 1976, conservative activists learned that abortion could be exploited to unite voters already predisposed against Carter. It was that shrewd opportunism that forged the Religious Right. Strategists in the conservative movement, from Richard Viguerie and Phyllis Schlafly to the avowedly religious Falwell and Paul Weyrich, had direct electoral evidence that anger over Roe could motivate evangelicals. In the 1978 midterm elections, pro-life Republicans in Minnesota took the governor’s mansion and both Senate seats; officials in both parties agreed abortion played a large role in the outcome. In Iowa, the pro-choice Democratic incumbent in the Senate lost, despite leading in the polls for months by at least 10 percentage points; on the Sunday before the election, pro-life groups distributed 300,000 pamphlets at church services across the state. In New Hampshire, the pro-choice Democratic senator lost as well.
The religious historian Randall Balmer makes the case that abortion was merely a convenient pretext for conservatives who were incensed over federal policy and court rulings that denied tax exemptions to segregated private schools. To de-elect Democrats, it was a lot easier to organize conservative Republicans around abortion—with its overlay of traditional values, religious freedom and states’ rights—than around racial policy. But Balmer’s argument fails to appreciate that without Roe v. Wade, political activists, evangelical and otherwise, wouldn’t have had nearly as good a hook. It’s a chicken-and-egg problem.
Reagan himself didn’t always embrace abortion with the zeal of a convert. He didn’t have to. As late as August 1980, three months before the election, when he addressed 15,000 evangelicals at a rally in Dallas, he left out any mention of abortion. Instead, he spoke in soothing tones about the “awakening” of “Religious America”—“perhaps just in time for our country’s sake”—and “the incontrovertible fact” that “all the complex and horrendous questions confronting us” have “their answer” in the Bible. “I know you can’t endorse me,” he told them, “but I want you to know that I endorse you.” His was a different approach than Falwell’s, which proclaimed abortion as the first of the five major “sins of America” (followed by homosexuality, pornography, humanism and “the fractured family”). But Reagan knew that the audience in Dallas and elsewhere understood what he was talking about.
Even without consistent Roe rage, and with his acknowledgment that he wasn’t exactly a regular churchgoer, Reagan could be the beneficiary of evangelical ire at President Carter—and at the Court. Nearing the end of his presidency, Reagan appreciated what the pro-life movement had done politically. “Many of you have been attacked for being single-issue activists,” he told a gathering of right-to-lifers at the White House in 1987. “But I ask…What single issue could say more about a society’s values than the degree of respect shown for human life at its most vulnerable: human life still unborn?”
Had Roe not happened, many evangelicals would still have been frustrated over a cultural landscape that had nothing to do with abortion. “Women’s lib” (as it was then labeled), cohabitation, recreational drug use, church-state relations—all provided ideological veins for conservative activists to mine. Abortion, though, was singularly different not only because it tapped into a life-and-death absolute, but because it had been taken away from the forum in which political discord was customarily hashed out.
By 1980, any strands of GOP moderation on abortion had disappeared. The party platform continued to clamor for a constitutional amendment. And rather than concede that the question of abortion was “one of the most difficult and controversial of our time,” as it had done in 1976, the platform now demanded that judicial nominees respect “the sanctity of innocent human life.” This was the first mention of a so-called litmus test for service on the bench. It all but required candidates to pledge explicit opposition to Roe as a condition for getting the job—and it was the genesis of the corruption of the Supreme Court appointments process.
Every four years, Republicans have looked to dial up the bombast. The 2016 platform, which invoked abortion 36 times, claimed that “unborn babies can feel excruciating pain during abortions” and demanded bans on its “cruelest forms”—“especially dismemberment abortion procedures, in which unborn babies are literally torn apart limb from limb.” It also called for impeachment of federal judges who “unconstitutionally usurp” legislative prerogatives on abortion (among other issues). The party’s nominee, Donald Trump—who over the years had repeatedly expressed pro-choice sentiments—vowed to appoint only anti-Roe justices. The Court in Roe alone didn’t create those positions, any more than it was responsible for the GOP’s hard turn to the right and the rise of Reagan. But Roe surely was an accelerant.
Meanwhile, the Court since Roe has necessarily remained in the fray, generating fresh tumult over the regulation of abortion, as well as the Court’s role specifically. The justices have heard cases dealing with state and federal legislative efforts to limit abortions further, as well as the occasional case challenging Roe itself. In 1980, the Court ruled that Congress had the power to deny Medicaid funds for abortions—the so-called Hyde Amendment. Eleven years later, the Court said Congress could bar clinics that received federal funds from discussing abortion with patients—the so-called gag rule. In the most important post-Roe case, on the final day of its term in 1992, Planned Parenthood v. Casey, the Court refused to overturn Roe but significantly modified it. In a bitterly fragmented 5-to-4 vote, the Court struck down part of a Pennsylvania statute that ordered a married woman to notify her husband of her intent to have an imminent abortion. That provision imposed an “undue burden” on the woman, according to the Court.
But in creating that standard, the justices were discarding their declaration in Roe that abortion was a “fundamental” right that could be restricted only to serve a “compelling state interest.” Under that more exacting test, most restrictions early on in a pregnancy were unconstitutional. Now, with only an “undue burden” test, some restrictions would henceforth be valid. In Casey, the Court also upheld statutory provisions requiring a woman to wait 24 hours before an abortion and to give a heightened level of consent—provisions that the Court only a few years earlier had struck down in two cases. The justices also repudiated the trimester framework altogether, instead focusing on viability alone.
The main Casey opinion, unusually, had three coauthors: Anthony Kennedy, Sandra Day O’Connor and David Souter—the “troika,” as a Blackmun clerk designated them. It was the opinion that memorably began with Kennedy’s language that “liberty finds no refuge in a jurisprudence of doubt.” This was the passage that had caused him to brood to a journalist about “crossing the Rubicon.” But there was a more remarkable passage, in which the Court declared that “only twice in our lifetime” had it called on “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Roe was the second time. Brown v. Board of Education was the first.
The analogy was ludicrous, and yet the Court took the equivalence further. Just as the justices, under attack, had stuck by the initial Brown decision—when a year later, in 1955, they set out how the desegregation ruling should be implemented—the Court in Casey found itself having to defend “the central holding of Roe” largely because doing otherwise would signal “a surrender to political pressure.” So, having thrust itself into the political muck 19 years earlier, the Court now had no option but to remain mired, lest it appear to yield to the stresses it inevitably faced as a result of its initial choice. That wasn’t exactly a resounding constitutional rationale, especially when part of Casey did overrule two of the Court’s own recent rulings. Nor did the Court try to distinguish how Brown, in overturning the “separate but equal” doctrine of Plessy that had lasted 58 years, wasn’t a “surrender to political pressure.”
Blackmun, the author of Roe, was on the periphery of Casey—representing a view about the wisdom of Roe that had passed. He joined the Casey troika, at least where they invalidated parts of the Pennsylvania abortion law. “When so many expected the darkness to fall,” he wrote, “the flame has grown bright.” Kennedy, O’Connor and Souter, he said, deserved praise for “an act of personal courage.” But in warning that Roe was in peril, his theatrical concurring opinion was much more about being the self-anointed guardian of Roe, the last of its seven-justice majority still on the Court. As he neared the end of his tenure, Casey was his final cri de coeur.
The troika’s approach in Casey, according to Blackmun, was “worlds apart” from the approach of Chief Justice Rehnquist and Justice Scalia, who in dissent with Justices White and Thomas urged that Roe be overturned. But, Blackmun said, “the distance between the two approaches is…but a single vote. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.” There of course had been a third option. The Court might have decided originally not to leap in, instead entrusting resolution to the political process and democratic compromise.
Back and forth the Court has gone on abortion—from Roe in 1973, to Casey in 1992, to striking down a statute on so-called partial-birth abortion in 2000, but disowning that ruling only seven years later after Alito took O’Connor’s seat. The juxtaposition of the latter two cases illustrated just how malleable—and flawed—the “undue burden” standard of Casey was in practice. The two cases also demonstrated that, for the all the talk of principles, Court rulings sometimes came down to head counts. O’Connor out, Alito in—presto chango, the vote was different.
In late June 2016, in Whole Woman’s Health v. Hellerstedt, the Court unexpectedly struck down a Texas statute, H.B. 2, which placed two strict limitations on abortion providers. One restriction required physicians who performed abortions to have admitting privileges at a nearby hospital. The other required abortion clinics to have the same equipment and staffing as ambulatory surgical centers. Together, these TRAP rules—targeted regulation of abortion providers—would likely force the majority of clinics in the state to close, particularly in rural areas. That was the whole point, according to pro-choice advocates. Not so, said defenders of H.B. 2—it was merely intended to protect women’s health. Scalia had died 18 days before the case was argued. So it was assumed the Court would split 4–4. That made sense: The four liberals—Ginsburg, Breyer, Sotomayor and Kagan—would reject the law; the three conservatives—Roberts, Thomas and Alito—would uphold it; and Kennedy, in the middle, would side with the conservatives. Kennedy had deemed an abortion restriction to be unconstitutional only once—in Casey; in both partial-birth cases, for example, he had voted to restrict late-term abortions.
But Kennedy joined the liberals in striking down H.B. 2. By a 5-to-3 vote, the Court found the Texas requirements imposed an “undue burden.” Breyer, writing for the majority, said that neither provision of the Texas law “confers medical benefits sufficient to justify” the “substantial obstacle in the path of women” seeking an abortion. Ginsburg wrote separately to emphasize that Texas was using women’s health as pretense—to undo Roe and Casey without having to admit it. Given that other medical procedures, including childbirth, were “far more dangerous to patients,” yet not subject to H.B. 2, “it is beyond rational belief” that H.B. 2 was anything more than an effort to make getting an abortion more difficult. Even though he made the difference in the case, Kennedy wrote nothing, choosing instead to assign the opinion to Breyer. Were the facts in Hellerstedt so egregious concerning Texas’s intent that Kennedy believed he had no choice? Had he altered his view about what constituted an “undue burden”—and come full circle since the time when, as a young lawyer, he had decried Roe as “the Dred Scott of our time”? The inscrutable Kennedy wasn’t saying.
In the nearly 50 years since Roe, Hellerstedt represented a high-water mark of Court support. But tides ebb and flow. Roberts and Alito have never squarely had the opportunity to consider the status of Roe. (Alito, as a lower-court judge, had in a dissent voted to uphold the spousal-notification requirement that the Supreme Court struck down in Casey.) Nor has Gorsuch. Thomas was the only current justice who had voted to overturn the ruling. As long as Kennedy remained on the Court, along with the liberal quartet, Roe looked secure—even if Roberts, Alito and Gorsuch all voted to overturn it. But with Kennedy’s retirement in 2018, and with Republicans still in control of the White House and a filibuster-less Senate for judicial nominations, Roe now faces its greatest danger since Casey in 1992.
When Roe v. Wade arrived at the Court in 1973, it’s not as if the justices were forced to issue the ruling they did. Judges aren’t algorithms, merely executing programmed commands. The Court had three easy alternatives to what it chose to do in Roe—all in the service of Louis Brandeis’s admonition half a century earlier that “the most important thing we do is not doing.”
First, the justices could have adopted Alexander Bickel’s strategy of “prudence,” for the sake of both democracy and the Court’s own standing. That might have meant striking down the extreme Texas abortion law on narrow grounds, while at the same time upholding the more reasonable Georgia statute at issue in the companion case, Doe v. Bolton. This, Richard Posner has argued, could well have “accelerated the movement to reform state abortion laws and brought us close to where we are today (abortion freely available in liberal states, but very difficult to obtain in conservative ones) without the political turmoil engendered by Roe.” Even if the justices sometimes do recognize constitutional rights that are then safe from political intrusion, a continual interplay between the Court and legislatures (both state and federal) is part of what produces sound constitutional law.
Second, the Court might have put off making any decision about abortion—for example, by concluding the Roe appeal was insufficiently “ripe” for adjudication. The justices could have done so simply by denying cert and saying no more. Or they might have written briefly that for now it was best to give legislatures wide berth to find a political solution. There is a time and a place for saying nothing at all. Bickel preached what he called the “passive virtues,” which were discretionary tools to avoid deciding a case. Inaction was especially appropriate when the political branches could in theory work things out—and even better when they were actually doing so in some states. In “staying its hand,” Bickel said, the Court best conserved its power for when it was truly needed.
It wasn’t that Bickel desired a weak Court. Precisely the opposite. He understood that restraint was a means to an end—it served to enhance the justices’ ultimate authority, to be harnessed at moments like Brown. In Roe, restraint would have meant leaving intact varying lower-court decisions and allowing more courts to continue to wrestle with the issue. There likely would have been conflicting decisions in different regions of the county, but the legal system contemplated, and more than tolerated, the inconsistency—all the more when it served a more important goal. Sometimes the inconsistencies even worked themselves out, and an outlier court moved back to the center of gravity.
Finally, the Court might have declared that the regulation of abortion wasn’t a matter for the judiciary, which would have effectively undone lower-court rulings that had struck down abortion laws. State legislatures, and perhaps Congress, would then have been mostly free to legislate as they liked. All three alternatives—a narrow ruling that invalidated the Texas statute, no ruling at all, and a ruling that would take federal judges out of the process—would have allowed the justices to avoid the havoc they wreaked in Roe. All three were compatible with a robust, eminently sound belief that abortion should be legal and widely available—just not by judicial fiat.
Roe isn’t Brown. Attempts to equate the two in constitutional legitimacy—how can you applaud Brown but vilify Roe?—fail even the laugh test. The cases involved wholly different contexts, histories and constitutional questions. Defending the one doesn’t demand defending the other.
Liberals rejoiced in Roe for a generation. They romanticized a Court that did social justice, notwithstanding the demands of self-government. If there were risks that the other side would win control of the Court and use its power to return to the days of Lochner or otherwise act illiberally, that was a worry for a different day. In the rest of the 1970s, and then the 1980s and 1990s, liberals won cases and lost cases—more in the latter category as Republican presidents filled most of the Court vacancies. In 1995, for example, the Court, for the first time in six decades, struck down a federal statute on the ground that Congress had exceeded its powers under the Commerce Clause. Ever since the New Deal, the Commerce Clause—giving Congress power to “regulate commerce” among states—had been the constitutional basis for exercises of vast national regulatory power. In United States v. Lopez, which involved the Gun-Free School Zones Act of 1990, the Court, 5–4, ruled that a federal ban on firearms near schools showed an insufficient connection between school violence and interstate commerce.
Lopez represented an early hint from an increasingly conservative Court that it would have little regard for legislative judgment, in Congress or elsewhere. Five years later, the Court made plain that Lopez was no aberration. In United States v. Morrison, the justices, 5–4, struck down part of the Violence Against Women Act. Passed by Congress in 1994, that statute provided a federal civil remedy for victims of gender-motivated violence. But despite substantial congressional fact-finding that such crimes had an impact on commerce, the Court said they were not “in any sense of the phrase, economic activity.” Though reasonable policy makers might differ on that, the justices trusted only themselves to make the call.
Liberals got their truest comeuppance, justly enough, in the aftermath of a presidential election. Long ago, they had dispensed with respect for the political branches of government. Now in 2000, control of one of those branches—the White House—was in dispute. Who would decide between Texas governor George W. Bush, the Republican, and Vice President Al Gore, the Democrat? Not Congress, not the state (Florida) that held the pivotal electoral votes. The Court, now conservative, would. And the left would learn that what was good for the left was good for the right. If Roe v. Wade amounted to judicial overreach, Bush v. Gore was a judicial disgrace. The two are ignoble bookends in contemporary American jurisprudence.