Monday, December 3, 2012

Revisiting Reactions to Roe

It’s a pleasure to be blogging on Legal History Blog-- thanks to Dan and Karen for the invitation. With the fortieth anniversary of Roe coming up, my current book project has got me thinking about the stories we often tell about the historical impact of Roe. As part of the project, I have done over a hundred oral history interviews with activists who participated in the struggle in the 1970s. If there is a recurring theme, it is that Roe was not as important as we law professors like to think. In upcoming posts, I hope to take these activists’ concerns seriously. How might the history of abortion law and politics look different if Roe were no longer the sole or primary focal point of our analysis?

One particular activist, Warren Schaller, got me thinking about the Court’s current approach to informed consent restrictions. As Reva Siegel, Ronald Turner and other have shown, the Court increasingly resolves abortion cases by making assertions of scientific fact or deferring to similar pronouncements by Congress. The Court’s analysis of informed consent, in Planned Parenthood v. Casey quite literally asks judges to decide whether normatively charged statements about abortion are true.

Right after Roe, Schaller also advised the antiabortion movement to make scientific arguments. The Executive Director of the National Right to Life Committee in the period, Schaller was a minister, a supporter of the Equal Rights Amendment, and a self-described progressive--by any measure, a strange choice for the architect of antiabortion strategy. His strategy was to fight fire with fire. If the Roe Court had relied on the views of physicians and on medical evidence, so too could abortion opponents. Medical claims, as Schaller had suggested, were designed to make the movement look more secular, legitimate, and respectable. Relying on the “facts of life” would further allow policymakers to chip away at abortion rights without admitting they were doing so.

It seems now that, given the Court’s current approach, Warren Schaller was a smart man. In the 1970s, though, the strategy made little headway. In the Supreme Court and in Congress, commentators insisted that medical decisions about abortion properly belonged to physicians—a view echoed by some in the antiabortion movement. Since Schaller’s time, of course, this kind of strategy may work better partly because the status of physicians has changed dramatically in the abortion debate, both inside and outside the movement community. After all, we do not talk any longer about a physician’s right to choose abortion. How we got from Roe to a woman’s right to choose is itself an important question that I hope to address in a future post.