What Are the Lessons of “Roe”?

Power Struggle

The 50-year fight over abortion.

Facebook
Twitter
Email
Flipboard
Pocket

If you squint at it long enough, the abortion debate can look like an opportunity for conservatives to act like liberals—at least rhetorically. In arguing against abortion rights, conservatives cast themselves as brave advocates for an inconvenient moral truth. By standing up for the “little guy”—that is, the fetus—they claim to take the side of the oppressed. Like the most annoying of liberals, anti-choice conservatives can also treat this “oppressed class” as an ornament for their own self-regard, insisting that in their opposition to abortion rights, they provide “a voice for the voiceless.”

This co-optation of the best and worst of liberal tendencies by the anti-choice movement is the subject of Mary Ziegler’s new book, Roe: The History of a National Obsession, which surveys the rhetoric and arguments used by both sides of the abortion debate, beginning in the late 1960s—before the Supreme Court’s landmark Roe v. Wade decision in 1973, and before the issue became polarized along partisan lines—right up to Dobbs v. Jackson Women’s Health, the 2022 ruling that overturned Roe and eliminated the constitutional right to an abortion. Along the way, Ziegler’s book reveals how the anti-choice movement tried out and discarded a series of arguments in its search for a rationale that might appeal to judicial and general audiences alike. Her book can be understood as a history of the abortion as an argument, and how that argument has influenced American politics over the past half-century.

A legal historian who teaches at the University of California, Davis, Ziegler has written six books on abortion and the law. Though she’s unambiguously pro-choice, her work often aims to take a nuanced, more heterodox position on the issue, seeking to correct misconceptions about abortion’s history and highlight areas of agreement on both sides. Her first book, After Roe, recounted abortion politics in the first decade following the decision, when pro- and anti-choice activists had more in common than today’s readers might imagine. Her previous book, Dollars for Life, was a chronicle of the anti-choice movement’s victories in fundraising and in capturing the judiciary.

Dollars for Life was published last June; Ziegler is nothing if not prolific. She’s also rigorous: Her books are stuffed with facts more than analysis, though they’re sprinkled with just enough details about the major players involved to remind the reader that they were living human beings. But the strength of Ziegler’s books lies in their abundance of historical detail, immersing the reader in information about larger social movements and politics. Like its predecessors, Roe: The History is a dates-and-names book, though it aspires (also like its predecessors) to illuminate a central question that the historical record alone cannot answer: Why did Roe v. Wade become such a political lightning rod?

In its search for an answer, Roe pays meticulous attention to both the pro- and anti-choice sides. But Ziegler tends to focus more on the anti-choice movement, and it’s not hard to understand why. As the ones trying to change the law—and the ones with the most fundraising power—anti-choice conservatives have evolved and adapted to events more quickly than abortion rights activists. Ziegler recounts the anti-choice movement’s history to her largely pro-choice audience with the tone of someone who has recently returned from a trip to a faraway land: Let me show you how they do things in this strange place.

And strange it is. Ziegler reminds us that the abortion debate in the pre-Roe era was not strictly divided along party lines. Both the Republicans and the Democrats included among their numbers people who supported abortion rights and people who opposed them, for a variety of reasons that might be counterintuitive to many readers today. Some people supported abortion for religious reasons; some for racist ones. Some people opposed abortion as an extension of their commitment to Black liberation. But something like the contours of our modern abortion divide began to emerge in the 1970s, when, banking on a popular opposition to the women’s liberation movement, a cadre of religious leaders and Republican strategists on the right—most notably Pat Buchanan—worked to radicalize evangelicals against abortion and turn it into a winning electoral issue. The strategy paid off: Opposition to abortion would become a central preoccupation of the Republican base, and the issue would help fuel the rise of the party and the religious right in the 1970s and ’80s.

But even as Republicans and religious conservatives were making their anti-choice positions the center of their politics, some opposition to abortion rights persisted on the left. As Ziegler tells us, in 1969 a small group of elite anti-abortion liberals founded Americans United for Life, which was intended to put a progressive, genteel, and charitable face on the anti-choice crusade. In contrast to those groups with a straightforward and avowed commitment to gender hierarchy and women’s subordination—such as the National Right to Life Committee and, later, the violent Operation Rescue—Americans United for Life used the liberal rhetoric of rights and equality to argue for abortion bans under the rationale of fetal protection, appealing to that old left desire to stick up for the little guy.

But the political battle lines around abortion would soon solidify, as the United States was plunged into a series of fiercely partisan battles over social issues during the Reagan era. People with liberal commitments found that they could no longer remain anti-choice; people with anti-choice commitments found that they could no longer remain liberal. Americans United for Life eventually fell into anti-feminist hands and became a rabidly right-wing group focused on ensuring Republican control of the judiciary. If the 1970s had opened with a still-lingering sense of uncertainty and discomfort among some liberals on the question of abortion, in the 1980s anti-choice conservatives began to draw the line: Even if liberals might have been sympathetic, this was now the right’s cause.

As the anti-choice movement veered more sharply to the right, it also became increasingly moralistic in its language and maximalist in its aims. In 1973, after the Roe decision, the National Right to Life Committee called for a constitutional amendment establishing fetal personhood. The proposition, which enjoyed support in Congress, would have criminalized abortion in all 50 states. But the pro-choice side, especially the large establishment-liberal groups like NARAL, were happy to fight on this territory. They depicted the proposed fetal-personhood amendment as not just extreme but anti-science, using Justice Harry A. Blackmun’s opinion in Roe—which had gone long on medical technicalities and emphasized the rights of doctors, not women—to argue that the amendment substituted religion for medicine and backward superstition for forward-looking sophistication. This argument worked in part because, in the 1960s and early ’70s, the pro-choice movement was populated less by activists than by doctors. In the early post-Roe years, the movement’s main advocacy groups, such as NARAL, were associations of medical providers—respectable, educated, reformist, and largely male. The anti-choice side was no match for this bastion of credentialed professionalism, and the fetal-personhood amendment went nowhere.

As a result of this early defeat, the anti-choice movement shifted to the strategy that it would continue to pursue into the 21st century: seeking not to ban abortion outright but instead to restrict it, making the procedure more and more expensive, humiliating, and onerous to get. The movement struck its first major blow in 1976 with the Hyde Amendment, a provision that banned the federal funding of abortion through Medicaid. The right to an abortion was thus immediately and drastically curtailed: Suddenly it was no longer an entitlement that every woman had, but rather an option that she could choose if she was able to pay for it.

Meanwhile, the pro-choice movement was reinventing itself. What had long been associated with medical professionals was now increasingly dominated by feminists. These new pro-choice advocates saw themselves not as medical experts but as equal-rights activists. The feminist commitment to abortion rights emerged out of the women’s liberation movement in the 1960s and ’70s, in particular its anti-rape campaigns, which identified forced sex and forced pregnancy as two sides of the same coin. “Tying Roe to liberty for women,” Ziegler writes of the feminists who made abortion their cause in the late 1970s and early ’80s, “would legitimize the idea that women had the right to say no (or yes) to parenthood and pregnancy as well as to sex.” As a result, the argument for choice was no longer just a matter of deference to medical practitioners’ expertise and discretion, as Blackmun had outlined in Roe. Increasingly, abortion rights were about women’s self-determination, their personal responsibility, and their individual freedom—those ideological buzzwords so often associated with the political right.

This role reversal, Ziegler observes, went both ways. The Roe decision marked the embrace by abortion rights activists of a rhetoric of independence and individual liberty that had long been advanced by the right. The ruling also upheld a vision of expansive federal power, including a judiciary that was able to undermine traditional social hierarchies such as gender with a stroke of its pen. Perhaps this is why the Roe decision inflamed so many on the right against the federal judiciary.

Conservatives had already begun to target the courts in the wake of the major civil rights rulings of the 1950s and ’60s. But after Roe, the judiciary took on a new importance in the conservative imagination, changing from an enemy to be hated into a tool worth capturing. Republican politicians spoke of the need to discipline the judiciary, to strip it of its jurisdiction over hot-button social issues; conservatives decried “judicial activism” and depicted federal judges as partisan hacks pursuing Democratic policy aims. This conservative resentment toward the judiciary lasted longer than one might think; well into the 2000s, it was the right that decried judicial capture and the left that championed the independence of the courts. But when the right set out to take control of the federal courts, Roe—and the determination to overturn it—was the main reason why.

In the first decades after Roe, anti-choice conservatives also went on the offensive in other ways that mimicked some of the left’s traditional habits. The abortion rights movement was vulnerable, after all, on race. Pro-choice proponents had never fully reckoned with the history of their cause—especially the fact that in its early years, birth control and abortion rights activism had at times attracted an unsavory smattering of eugenicists, “population control” enthusiasts, racists, and busybody social reformers with a prurient interest in the sex lives of the poor, immigrants, and the mentally ill. The right pointed to this history and argued that abortion rights were racist by their very nature; a popular 1988 evangelical book, Grand Illusions: The Legacy of Planned Parenthood, claimed that the organization had been founded as part of a conspiratorial effort by racists to destroy the Black community.

Less quackish anti-choice arguments pointed to the higher rates of abortion among Black women and suggested that Black communities had been offered abortion rights in lieu of other, more substantial rights and social programs oriented toward achieving equality. The anti-choice conservatives who made these arguments were, of course, not interested in the realities of Black women’s social position; they saw no contradiction in calling for Black women to be free while denying them the freedom to control their bodies, or in saying that Black women deserved social welfare services that would be “better than abortion” while at the same time forming alliances with those who wished to gut the welfare state. But there were members of the Black community who were skeptical of the abortion rights activists, believing they held too narrow an understanding of Black women’s needs, and it created a tension in the movement that has still not been resolved.

The anti-choice movement also began to use medical science for its own purposes—and then to distort it. In the 1992 case Planned Parenthood v. Casey, the Supreme Court reaffirmed Roe but replaced the 1973 trimester framework with a more subjective and contingent standard, “viability”—that is, the point at which a fetus can survive outside the womb. The court ruled that states could ban abortion outright after “viability” had been achieved. But “viability” proved to be a slippery standard—the science around it was and remains unsettled, including the measure of what is viable from one pregnancy to another. In response to this new ambiguity, the anti-choice movement set about searching for pretexts to claim that abortion harmed not only fetuses but also women themselves, and it looked for ways to attribute viability or other physical advancements to the fetus that it didn’t have. If the pro-choice side, with its physician-led advocacy groups, had claimed the mantle of science in the 1970s, the anti-choice movement tried to snatch it away two decades later. But even when the science didn’t conform to their worldview, anti-choice conservatives pressed on anyway. Soon, states would pass laws that required abortion providers to read a litany of medical lies to women before performing the procedure, including empirically untrue statements such as that abortion causes suicide or increases the risk of breast cancer.

Reading Ziegler’s descriptions of these abuses of fact, it’s hard at times not to hear irritation slipping through her normally staid prose. But Ziegler is a historian, not a polemicist, and for the most part she treats her subjects with scrupulous neutrality. One knows where her sympathies lie, but she is careful not to intervene in the story. For a book about abortion, it’s an uncommon choice. But the result is that even some of the most passionate and polarizing people in Roe—for example, the millennial abortion “abolitionists” who congregate in a Chick-fil-A in Longview, Tex., to proclaim their willingness to break clinic protection laws—can come off with the blandness of saltines. Ziegler aspires to a rigorous facticity, yet her prose can be so dryly factual that it is hard at times for the reader to grasp the moral emergency presented by those facts.

Ziegler’s approach, however, also has its virtues. In the abortion debate, anti-choice activists—and more than a few judges—have cast feminist abortion rights supporters as hysterical. By contrast, Ziegler’s dispassionate recounting of the debate’s major arguments is instructive, because her calm and orderly tone gradually makes clear how much it is that passion, not logic and science, has been driving the anti-choice movement. Even when anti-choice conservatives invoke noble values—racial justice, religious freedom—they never make a credible case that abortion bans actually serve them.

In this way, Ziegler offers us a methodical and fair-minded chronicle. But what is most apparent from reading it is that the anti-choice movement won its long fight to overturn Roe not because its side was more persuasive but because it focused more on obtaining power. Anti-choice conservatives have marshaled a broad array of arguments against abortion’s legality, but whether they involve freedom or the judiciary, work or medical technology, race or religion, none of them have been successful in gaining broad popular support. When the anti-choice movement has won important victories, it has done so not because it made the best arguments but because it has captured the courts. For the most part, despite failing to bring the majority of people to its side, the anti-choice movement has been successful because of the federal judges who agreed with it. Dobbs and its gruesome, tragic aftermath seems poised to further the trend: The American public is now more pro-choice than it’s ever been, and the more that people see what it’s like to live without Roe, the more they miss it.

Yet will the popularity of abortion rights matter? Will the more successful arguments of the pro-choice side ultimately make a difference? While Ziegler’s book frames itself as the history of a national obsession, it is also a book about power and the brute fact that whoever wields it determines our public policies—policies that often bear little relation to public opinion. While liberals and the left have sought to win people over to their side, Ziegler documents that the abortion fight, from Roe to Dobbs, is actually a story about state capture. And maybe this is the real lesson of her book, the one those of us who believe in abortion rights would do well to heed: that there is no argument, no angle, no story of suffering or indignity that will bring the constitutional right to abortion back. The task, then, is not to argue, but to organize.

Thank you for reading The Nation

We hope you enjoyed the story you just read, just one of the many incisive, deeply-reported articles we publish daily. Now more than ever, we need fearless journalism that shifts the needle on important issues, uncovers malfeasance and corruption, and uplifts voices and perspectives that often go unheard in mainstream media.

Throughout this critical election year and a time of media austerity and renewed campus activism and rising labor organizing, independent journalism that gets to the heart of the matter is more critical than ever before. Donate right now and help us hold the powerful accountable, shine a light on issues that would otherwise be swept under the rug, and build a more just and equitable future.

For nearly 160 years, The Nation has stood for truth, justice, and moral clarity. As a reader-supported publication, we are not beholden to the whims of advertisers or a corporate owner. But it does take financial resources to report on stories that may take weeks or months to properly investigate, thoroughly edit and fact-check articles, and get our stories into the hands of readers.

Donate today and stand with us for a better future. Thank you for being a supporter of independent journalism.

Ad Policy
x