Friday, August 7, 2015

How Did Roe Become a Popular Symbol of Judicial Activism?

If you follow abortion politics today, you probably think that the pro-life movement has long prioritized Roe v. Wade. As attorney Clark Forsythe's recent book, makes clear, arguments against the Roe Court's activism have become a centerpiece of movement strategy.

But in the 1960s and 1970s, as my book shows, few committed movement members would have seen that as a worthwhile goal. Robert Byrn, a pro-life conservative who openly opposed birth control, wrote that the movement did not have to take a position on judicial activism. The legal strategy that intrigued many pro-lifers more closely resembled one forged by liberal lawyers. For much of the decade, antiabortion activists who agreed on very little prioritized a constitutional amendment. That amendment would have made unborn children a protected class under the Equal Protection Clause, recognized a fundamental right to life, and banned all abortions. Movement members like Byrn did not entirely see the appeal of attacks on judicial activism. Indeed, pro-lifers believed that the unborn had rights that should be protected from popular politics.

Only later did movement leaders emphasize the evils of judicial activism. Pro-lifers had believed Roe to be an incoherent, unprincipled decision from the start, but few had expressed concern about the role of the judiciary. When the movement’s focus shifted, leaders partly responded to new political opportunities. When it was clear that a constitutional amendment was out of reach, groups like the National Right to Life Committee (NRLC) and Americans United for Life (AUL) put new emphasis on federal judicial nominations. To influence either presidential elections or judicial selections, pro-lifers had to build powerful alliances, and the most promising potential allies took issue with a variety of Supreme Court opinions, including those on school prayer and busing. Speaking the language of judicial activism was strategically smart, and over time, more movement leaders came to deeply believe what they were saying.

Studying the politics of judicial activism in the antiabortion movement made me curious about the public came to see Roe as a symbol of judicial overreaching. To be sure, legal academics had highlighted flaws in the Court’s 1973 decision as soon as it was issued. But the story of antiabortion activism in the 1970s reveals that arguments about judicial role did not immediately or inevitably resonate outside the academy, even for groups that would most logically have led an attack on the courts.

A little more than a decade later, the picture looked very different. The AUL tried to reach undecided voters by pointing out the supposed errors in the Roe decision and the threat it posed to American democracy. Within the Reagan Administration, lawyers from Rex Lee to Edwin Meese III took arguments about judicial activism to both the courts and popular audiences. Antiabortion extremists cited the Court’s supposed abuse of power in justifying civil disobedience and even anti-clinic violence. After Roe describes some of the very different paths that abortion law and politics could have taken after the Court legalized abortion in 1973. I imagine that a closer investigation of the politics of judicial activism in the 1980s and 1990s would reveal similar lost possibilities.