Election seasons tend to
prompt discussion not just about party realignment but also what would
happen if Roe v. Wade were overruled.
The central role played by Roe in
federal judicial nominations has attracted more than its fair share of criticism,
and the likely outcome of Roe’s
overruling seems predictable enough. The Guttmacher Institute recently put out
an explanation of what state abortion policy would dictate in the absence of Roe. All of this, however, tends to
ignore what would happen if abortion opponents actually won, since the movement
has long endorsed more than the overruling of Roe. As I explore in my current project, antiabortion
constitutionalism in the decade after Roe
was far more ambitious, proposing the recognition of a right to live rooted in
natural law, in the Declaration of Independence, in international human rights
principles, and even in pre-Roe
substantive due process cases.
Now, we tend to associate
antiabortion constitutionalism with the judicial politics of the Right—with commitments
to originalism and judicial activism. In the aftermath of Roe, abortion opponents remained skeptical about the idea of
originalism (as late as 1977, activist and Fordham Professor Robert Byrn
explained that the movement did not need to take a position on the question of
judicial activism). Antiabortion attorneys themselves were diverse. Some, like
Kenneth Vanderhoef, a Seattle attorney who had represented a local Catholic
diocese, believed their religious and professional obligations to be
inextricably connected. Others defined themselves as liberals, Reform Jews, or
human rights attorneys.
In spite of this
diversity, movement members agreed on the broad outline of constitutional
change that was strikingly similar to the one promoted by abortion-rights
activists in the lead-up to Roe (see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v.
Wade (Berkeley: University of California, 1998)). Both constitutional agendas urged the courts to protect an
unenumerated right from popular interference and contended that this right
represented a logical extension of existing substantive due process law.
Something changed, of course, with the advent of the Reagan Administration and
the revival of attacks on judicial activism in the early 1980s. Largely for
strategic reasons, abortion opponents began framing their own objections as
concerns about judicial overreaching, but this shift came for strategic rather
than for substantive reasons. Whether abortion opponents changed their ultimate
goal or merely adopted a different approach in it, by 1980, incrementalism, a
subject that I hope to address in a future post, was already on the rise.
