Monday, August 3, 2015

Unsolved Puzzles

I’m delighted to have the chance to share some thoughts this month on Legal History Blog. Thanks to Dan, Karen, and Tomiko for having me.

The invitation to blog came because of the recent publication of my book, After Roe: The Lost History of the Abortion DebateNo matter how thorough I felt I had been, the book left me with unsolved puzzles. There are intersecting but not-quite-relevant questions of law and policy, fascinating bit players, and developments that came after the story I was telling. In the next few weeks, I’d like to return to some of the questions left open in the book.  

The book offers the first history of social-movement reactions to Roe v. Wade in the years immediately after the decision, chronicling the emergence of defining features of the contemporary abortion debate. I argue that the world of abortion politics in the 1970s differed radically from the one we know now. Contemporary logic that equates the pro-choice movement and women’s rights did not yet hold. The antiabortion movement had embraced neither incremental attacks on Roe nor a defining alliance with the Right. The polarization that defines both abortion and other gender issues did not seem inevitable. Tracing the reasons for the later escalation of the conflict, After Roe suggests that the story is much more messier than the court-centered story often told by scholars and the Supreme Court. Of course, the book did not clean up all of these messes, and I’d like to consider some of the questions left open in the book here.

The book charts the rise of an antiabortion strategy based on pragmatic, step-by-step attacks on legal abortion, one that sometimes spotlighted attacks on judicial overreaching. In the coming weeks, I’ll discuss how this strategy—incrementalism—changed after the period covered in the book. In particular, I’ll look at lawyers’ campaign for an undue-burden test and the popularization of arguments that Roe was a lawless, even unconstitutional decision. I’ll also pose some questions about what this history says about cause lawyers’ professional identity.

After Roe also explores the evolution of the abortion-rights movement, studying the marginalization of arguments based on population control, the rise of feminist rhetoric and leaders, and the creation of a message based on choice. But how did early pro-choice activists deal with the rhetoric of religious-based conscience of the kind that is now so visible in debate about marriage equality? The transformation of population-control politics also had effects beyond the politics of abortion and family planning. How did these events impact immigration and environmental policy?

Finally, the book focuses on possible compromises that attracted some on either side of the abortion conflict after Roe. I’ll raise questions about what this history suggests about the promise of seeking social change in the courts rather than in the political arena. I’ll also discuss potential common ground left unstudied in the book, especially in the area of marital-status discrimination.

After finishing this project, I have more questions than answers, and I’m very much looking forward to readers’ help in understanding what still puzzles me.

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