Monday, August 24, 2015

The Politicization of Privacy

Like many of my students, I found myself confused the first time I read the Roe decision. I had always believed that the Court had recognized a woman’s right to choose abortion. I was not prepared for the opinion’s focus on physicians. At times, Justice Blackmun suggested that the abortion right belonged jointly to women and doctors.
After Roe explores how both pro-life activists and feminists ultimately embraced an interpretation centered on women’s rights. Earlier in the 1970s, both movements often presented Roe as a decision creating new protections for physicians and patients. Leading supporters of legal abortion hoped that Roe had mostly settled the conflict and saw no reason to publicly question the Court’s resolution of the issue. Before Roe (and often after), pro-lifers believed that medical advances would decide the abortion wars in their favor. These activists argued that no court or politician, when presented with scientific evidence of fetal personhood, could stomach legal abortion. After Roe explicitly relied on a medical rationale for legalizing abortion, pro-lifers felt especially betrayed. Focusing on physicians’ rights allowed abortion opponents to express their deep disappointment with the judiciary and the medical profession.

By the end of the decade, both movements had reason for presenting Roe in a different light. As pro-lifers aligned with the Religious Right, criticizing the women’s movement and its idea of women’s rights made a great deal of political sense. In describing Roe as a decision involving a woman’s right to choose, pro-lifers joined their new allies in condemning both mainstream feminism and legal abortion.  On the other side of the issue, the feminists who took over major abortion-rights organizations naturally saw reproductive health as a matter of women’s rights. However, feminists also had tactical reasons for reinterpreting Roe, seeking to counter the new woman-protective arguments that were promoted by major antiabortion organizations.

In writing the book, I kept stumbling on new examples of movements using Roe as a weapon in other fights. Some of these stories, like those involving the early gay, lesbian, bisexual, transgender, and queer movement, did not surprise me. Others were less expected. Far Right activists in groups like the John Birch Society pointed to Roe and its privacy right in attacking the FDA. Mental health professionals invoked Roe in fending off the movement for deinstitutionalization and in answering attacks on the credibility of psychiatry. In trying to develop a vision of welfare rights that would survive the small-government politics of the late 1970s and early 1980s, activists on either side of the abortion issue tried to use Roe’s right to privacy as a tool in struggles for socioeconomic justice.

Perhaps the political events that reshaped abortion politics also changed the costs and benefits of framing a cause as a vindication of the right to privacy. Historians have studied how the courts mostly refused to recognize new privacy rights in the 1970s. The political story seems more complicated. It may be that the political transformations of the 1970s turned not only the courts away from privacy arguments but also the country as a whole.