Marc Stein: Five Myths about Roe v. Wade

Sexual Injustice: Supreme Court Decisions from Griswold to Roe, by Marc SteinToday, on the 40th anniversary of the landmark Roe v. Wade decision, we welcome a guest post from Marc Stein, author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe, which is now available in a new paperback edition. In the book, Stein focuses on six major Supreme Court cases, examining the more liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Fanny Hill, Loving, Eisenstadt, and Roe alongside a profoundly conservative ruling on homosexuality in Boutilier during the 1960s and 1970s. In today’s guest post, Stein debunks five popular misconceptions about the Roe decision.

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On 22 January 1973, the U.S. Supreme Court announced its decision in Roe v. Wade, the abortion rights case that culminated in one of the most controversial legal rulings in the country’s history. Forty years later, numerous myths continue to circulate about the contents and meanings of Roe. Here are five of the most significant:

Myth #1: Roe endorsed abortion on demand.

The Supreme Court’s majority opinion in Roe, authored by Justice Harry Blackmun and supported by seven of the nine justices, recognized three important interests at stake in decisions about abortion: (1) the privacy rights of the pregnant woman (often problematically called “the mother” by the Court); (2) the state’s interest in the health of the pregnant woman; and (3) the state’s interest in what the Court termed “potential life,” which was compromise language that avoided the problems associated with other obvious choices such as “unborn child,” “life,” or “embryo and fetus.” In some parts of the Court’s opinion, the justices mentioned a fourth important interest, that of medical doctors, and in several passages the Court privileged the decision-making of doctors rather than the women under their care, but ultimately the ruling focused on the woman’s privacy rights, the state’s interest in promoting public health, and the state’s interest in protecting “potential life.”

This became the basis for the Court’s complex trimester framework, which rejected both restrictive abortion bans and liberalized abortion on demand. According to the Court, in the first trimester, when abortion procedures are relatively safe and when the “potential life” is more potential than life, the pregnant woman’s reproductive rights are preeminent and therefore the states may not impose major restrictions on abortion. For the Court, the second trimester is different in that abortion procedures become somewhat more dangerous and the “potential life” is closer to “life.” On this basis, the Court ruled that states may regulate but not ban second-trimester abortions (for example, by requiring that they be performed in specific types of medical facilities). According to the Court, in the third trimester, when abortion procedures become more complicated and when the fetus is often able to survive outside the pregnant woman’s body, the state’s interests in promoting the health of the woman and protecting the “potential life” become sufficiently compelling that more state restrictions on abortion are constitutionally permissible. Significantly, the Court ruled that even in the third trimester, abortions could not be banned when they were necessary to preserve the life or health of the pregnant woman.

The decision in Roe thus satisfied neither opponents of all abortions or advocates of abortion on demand. This was a compromise ruling. To be sure, Roe liberalized abortion law in the United States, but U.S. Americans need only look north to Canada, which more fully decriminalized abortion in the 1980s, to understand that Roe, for better or for worse, did not recognize a legal right to abortion on demand.

Myth #2: Roe rejected traditional restrictions and religious prohibitions on abortion.

Blackmun devoted a substantial part of his Supreme Court opinion to a broad historical overview of the legal status of abortion in the West, which led him to conclude that the restrictive abortion laws under consideration by the justices were “of relatively recent vintage” and “not of ancient or even of common-law origin.” They were derived, he argued, from state statutes that were first enacted in the second half of the nineteenth century. English common law, for example, did not criminalize abortions before “quickening,” which effectively meant that abortions in the early months of pregnancies were legal. English common law was the basis for most U.S. state laws on abortion until the mid-nineteenth century. This led Blackmun to the conclusion that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”

The Supreme Court’s decision also addressed religious perspectives on abortion, noting the “wide divergence of thinking on this most sensitive and difficult question” and specifically referring to substantial Jewish and Protestant denominational support for “the view that life does not begin until live birth” and the notion that abortion is “a matter for the conscience of the individual and her family.” Religious opponents of abortion, Blackmun was reminding his readers, did not have a monopoly on religious opinions. For better or for worse, Roe was aligned with traditional and religious support for abortion rights in the United States.

Myth #3: Roe was a strongly feminist decision.

For decades, Roe has been celebrated and criticized as a feminist ruling that was based on the Supreme Court’s support for women’s rights. Blackmun’s majority opinion, however, had very little to say about women’s rights (beyond abortion rights) and it avoided most of the feminist arguments made by the lawyers who litigated the case. In several passages that addressed the doctors who performed abortions, Blackmun emphasized “his” rights to practice medicine more than the rights of the pregnant woman. In one, the Court concluded that during the first trimester “the attending physician, in consultation with the patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” Summarizing its findings, the Court declared that in this stage of pregnancy “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” In this formulation, the pregnant woman was not even given a consultative role; the decision seemed as if it were the doctor’s alone to make. More generally, the Court set aside the arguments of those in Roe who emphasized that abortion rights were necessary to secure women’s autonomy, empowerment, and equality.

In subsequent years, as Roe was attacked by antifeminists and as Blackmun defended his work, he depicted his majority opinion as far more feminist than it was. As journalist and biographer Linda Greenhouse has written in Becoming Justice Blackmun, “The reality of Roe itself, the extent to which its author’s focus was on doctors rather than on women, was largely lost to myth and the mists of memory.” Roe certainly can be interpreted as a ruling that was influenced by feminist activism and that had feminist effects. For better or for worse, however, the ruling itself was based on other types of arguments.

Myth #4: Roe recognized constitutional rights of sexual privacy.

Supporters and opponents of Roe have had good reasons to depict Roe as a sexual privacy decision, the former to defend it and the latter to attack it. In that context, it may come as a surprise to many that the decision in Roe had almost nothing to say about sexual privacy and never endorsed the concept. Roe was a decision about reproductive rights, not sexual rights.

In one passage, for example, Blackmun’s opinion noted that the Court’s precedents had made it clear that the right to privacy, which was based in part on the Constitution’s references to freedom and liberty, had important applications in cases concerning marriage, procreation, contraception, family relationships, child rearing, and education. Now the Court was declaring that this right was “broad enough” to encompass abortion. Notably the majority did not include sex or sexuality on this list. Blackmun also cautioned, “It is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decision.” Elsewhere in the Court’s opinion, Blackmun noted that Roe’s lawyers had argued that the constitutional basis of the right to terminate a pregnancy was “the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause” or the “personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras.” This passage has been used by many journalists and commentators to suggest that the decision in Roe recognized a right of sexual privacy, but here Blackmun was describing the arguments, not announcing the Court’s conclusions. When Blackmun’s opinion later presented the Court’s views on the nature of privacy, it referred to “marriage” and “family” but not sex.

What about the Court’s conclusions about the relationship between laws on abortion and laws on sex, which in the 1970s included laws against adultery, cohabitation, fornication, and sodomy? According to Blackmun, it had been argued by some that anti-abortion laws such as the Texas statute challenged in Roe “were the product of a Victorian social concern to discourage illicit sexual conduct.” This idea was based on the notion that legal restrictions on abortion discouraged nonmarital sex by foreclosing the option of ending an unwanted pregnancy. Blackmun responded that Texas had not made this claim and “no court or commentator has taken the argument seriously.” Nevertheless, he observed that Roe’s lawyers and friends of the court had asserted that “this is not a proper state purpose at all” and argued that “if it were, the Texas statutes are overbroad . . . since the law fails to distinguish between married and unwed mothers.” Here, too, the Court was describing arguments, not announcing conclusions. At most, the Court was suggesting that it did not see a relationship between laws against abortion and laws against sex, but it was not endorsing the notion of a constitutional right to sexual privacy. Over the course of the last forty years, the media and the public have come to believe that Roe was a sexual privacy decision, but the Court did not recognize a constitutional right of sexual privacy until the Lawrence decision of 2003.

Myth #5: Roe was only supported by big-government Democratic liberals and it was invariably opposed by small-government Republican conservatives.

For decades, Republican conservatives have successfully presented themselves as opponents and Democratic liberals as supporters of big government. This has been so effective in the court of public opinion that Democrats often take great pains to emphasize that they, too are opponents of big government. Only occasionally do dissident voices break through, as is the case with historian Steve Conn’s recent book To Promote the General Welfare: The Case for Big Government (2012). In truth, both major political parties support big government. Most Republican conservatives support a strong role for the federal government in national defense, immigration control, and law and order. In the last several decades, most have favored substantial government restrictions on homosexuality, obscenity, and sex education. Today, most Republican conservatives support the Defense of Marriage Act, which dictates whose marriages are recognized by the U.S. federal government. Conservative Republicans who oppose Roe because they support major restrictions on abortion are advocates of big government.

In fact, while support for abortion rights is stronger among Democrats than Republicans, many Republicans support abortion rights. Abortion was not mentioned in the Republican Party presidential platform of 1972 and in the 1970s a significant number of Republican politicians supported abortion rights. Roe‘s primary author, Blackmun, was appointed by Republican President Richard Nixon. Of the seven justices who endorsed Blackmun’s majority opinion in Roe, four were appointed by Republican presidents, three by Democratic ones. Of the two dissenters, one was appointed by a Republican, one by a Democrat. In the 1992 Casey decision, three Republican appointees, Justices Kennedy, O’Connor, and Souter, reaffirmed the central holding of Roe. From 1975 until 2009, the Supreme Court consistently had seven or eight Republican appointees and just one or two Democratic ones. For more than three decades, Republican appointees had an overwhelming majority of seats on the Supreme Court, yet the justices did not overturn Roe. Republicans, including some who support big government, some who criticize big government, and many who do both, have joined together with Democrats and independents to support abortion rights.

The popular press bears partial responsibility for these and many other myths about Roe v. Wade. In her 1992 autobiography, Sarah Weddington, the lawyer who defended abortion rights in Roe, recalled that in 1973 she was “disappointed that so few of the journalists described the legal arguments accurately.” In 1979, Chief Justice Warren Burger expressed concern that lower court judges “might be misreading” recent decisions by the Supreme Court and suggested that the misrepresentations of Washington reporters might be responsible for this. A few days later, Justice Lewis Powell reportedly stated that the Court was “totally dependent on the media to interpret what we do” since “that’s all the public knows about us.” Unfortunately, he observed, “sometimes, ‘under the constraint of deadlines, we find that what is written appears to bear little relationship to what we did decide.’” In 1991, Justice William Brennan told reporter Nat Hentoff that he was disappointed by press coverage of the Court and specifically by “the inaccuracy of the reporting and the placing of decisions out of context.” Weddington and Brennan did not exactly see eye to eye with Burger and Powell on many issues, but they all expressed concern about how the media reported on Supreme Court decisions.

Notwithstanding the validity of these concerns, there is another useful way to think about the myths that surround Roe. For the last several years, an influential group of scholars has been discussing, developing, and debating the concept of popular constitutionalism, which holds that the meanings of the U.S. Constitution are generated in the public sphere and not just in the text of the Constitution or the decisions of the Supreme Court. Extending this notion, we might also say that the meanings of U.S. Supreme Court decisions are generated in the public sphere and not just in the texts of the Court’s rulings or the justices’ subsequent depictions of their earlier work. Instead of discounting the myths that I have discussed, we might better be served by asking questions about the purposes they serve and the effects of these myths in the past, present, and future.

Marc Stein is the author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe, which has just been published in paperback by the University of North Carolina Press. He is a professor of history and gender, sexuality, and women’s studies at York University in Toronto. His previous books include City of Sisterly and Brotherly Loves (2000), the Encyclopedia of Lesbian, Gay, Bisexual, and Transgender History in America (2003), and Rethinking the Gay and Lesbian Movement (2012).

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