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January 22, 2003

Why Roe was Bad for Abortion Rights

I have mixed feelings on this 30th anniversary of Roe v. Wade, since I am in that minority faction that feels the Court's decision undermined abortion rights in the long-term and, in doing so, also undermined broader progressive progress as well.

The following points are highlighted in my general piece on why Supreme Court actions are bad for progressivism and some from Gerald Rosenberg's The Hollow Hope.

The basic reality was that before Roe was decided in 1973, a massive legislative revolution was underway across the country in expanding abortion rights. Under political pressure, state governments were passing new laws almost monthly. And the results were dramatic:

In 1966, there were 8000 legal abortions in the United States.
In 1969, there were 22,700 legal abortions.
In 1972, there were 586,800 legal abortions.
In 1973, there were 744,600 legal abortions.
In 1974 (the year after Roe) the numbers increased to 898,600.

The numbers would continue to increase but at a slower rate than before Roe v. Wade. By far, the largest percentage increases in legal abortions were in 1970 (a 752% increase) and 1971 (a 151%) increase. After Roe, the annual increases in legal abortion would be rather minor (21% in 1974, 15% in 1975, 14% in 1976, and so on). Over the next decade, the number of legal abortions would reach 1.58 million annually by 1985, but this was a very gradual increase compared to the explosion that had happened in the wake of legislative changes at the state level before Roe.

And legally, by isolating abortion rights as a "right to privacy", it politically severed it from a range of other feminist mobilization, even as rightwing conservatives were energized politically in the backlash against the decision. As Justice Ruth Bader Ginsberg has noted, Roe interrupted a political process of abortion liberalization that was already underway.

Look at pregnancy discrimination: in other decisions, the Supreme Court found that women had no constitutional protection against discrimination based on pregnancy. The result was a political mobilization that resulted in the Pregnancy Discrimination Act (PDA) which comprehensively banned discrimination on the basis of pregnancy, childbirth, and related medical conditions.

Look at one result of this difference: where the constitutional and legislative protections against sexual and pregnancy discrimination applied to insurance, a judicial "liberty" right to privacy around abortion created no similar mandate for equal treatment when funding issues were involved, allowing governments to treat funding for abortions differently from other medical issues and deny them to indigent women.

The other result of the Court's constitutionally tailored right for economically well-off women to have abortions was to allow economically conservative professional women to join the Reagan coalition, knowing that the courts would prevent their coalition partners from impacting their reproductive freedoms. If poor women had not been left on their own in the legislative arena, a much broader coalition for abortion rights would have sustained itself.

More broadly, the separation of abortion, pregnancy and sexual discrimination into different constitutional and legislative spheres has frustrated the democratic process fully grappling with the integrated issues of the tension between social reproduction in the home and women's participation in the workplace.

Instead of a broader discussion of real "choice", as in transforming the nature of work, career paths, family leave and so on which would allow women (and men) a real choice between abortion and having children at certain points in their lives, we've ended up with a splintering of politics over abortion between women committed to a home life and professional women, a polarization well documented by writers like Kristin Luker in her Abortion and the Politics of Motherhood.

Sociologist Theda Skocpol has noted how an earlier period of conservative judicial activism at the beginning of this century extended differential constitutional protections to women in the workplace (while denying it to men) and thereby frustrated democratic debate and deformed the shape of the emerging welfare state in the United States.

Speaking of protests, I helped organize around the mass DC protests in 1989 when the Supreme Court looked like it was going to overturn Roe v. Wade in the Webster decision. Far larger than this weekend's antiwar mobilization, a conservative estimate of 500,000 people marched in DC. It was like a political earthquake hit the city.

Yet partly because the Court reaffirmed Roe in Webster and then in Casey, that grassroots energy largely dissipated, leaving the antiabortion forces far more mobilized in chipping away at not only abortion rights but a whole range of feminist rights. It's hard for people to remember that in 1992, there were majorities in Congress ready to pass the Freedom of Choice Act to make a right to abortion the national law of the land. A whole raft of other pro-abortion related legal changes were also being made that year.

But the Court's partial victory for abortion rights in the 1992 Casey decision just demobilized most of that grassroots energy even as it mobilized the Christian Coalition which would help sweep the Gingrich Congress into power in 1994.

Now, there are arguments that without Roe, the early 1970s abortion rights expansion might have hit a dead end in more conservative states or that national legislation might have foundered, but it's hard for me to look at the ebbs and flow of diminished abortion rights mobilization and energized rightwing social conservativism, and not see a net loss for abortion and gender rights do to the effects of Roe v. Wade.

Posted by Nathan at January 22, 2003 09:08 AM

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Maybe you're right that Roe took some of the steam out of the abortion rights movement. Yet, even if the Supremes hadn't gotten involved, I think it is highly unlikely that national legislation protecting abortion rights would have been passed. It's one thing for reps from conservative states to come out in favor of motherhood (i.e. the Pregnancy Discrimination Act), and quite another to expect them to support a piece of legislation that has as its sole purpose protecting abortion. This just wouldn't fly in some areas. What is more likely is that we would now have a wide variation in state laws governing abortion, probably with quite a few states outright banning it. Fine for those of us who are fortunate enough to live in the more progressive states, but I wouldn't want to wake up someday and find myself poor, pregnant, and in Mississippi (or Virginia, for that matter) under such a system.
As for those professional women who joined the Reagan coalition, there will always be people who vote against their own interests. It's sad, but inevitable. How else to explain the Log Cabin Republicans?

Posted by: Katie at January 22, 2003 01:04 PM

The Log Cabin types could not exist w/o the prior activism of less "mainstream" gays and professional tokens like these are a byproduct of any advance (look at Ward Connerly for an example of this in racial politics).

Another argument for questioning whether Roe really advanced things is the tremendous amount of energy that has gone into defending it, when a broader feminist agenda could be brewing. The women's movement hit a deadend around Roe v. Wade and has not gotten past it's college educated professional core. Over the last couple decades I've been repreatedly flabbergasted at the patronizing attitude and general ignornace of feminist friends when it comes to their blue collar contemporaries and I have made a habit of not letting them forget this. Perhaps if the movement did not stay so centered on abortion it could do a better job of embracing economic issues and connecting to the waitresses, secretaries, cashiers, etc. of the world. In addition, abortion has been a wedge issue that has kept some women from identifying with the women's movement because it has (by necessity) become something of a litmus test.

Posted by: Ric h at January 22, 2003 03:56 PM

I have to disagree that feminism dead-ended with Roe. The lessened visibility of the movement in recent years has been I think due more to the fact that many of the movement's ideas have been absorbed into mainstream thought - e.g., equal pay, more flexible work schedules, no overt discrimination based on sex, and heightened consciousness of sexual harassment. As a feminist labor lawyer, I also have to protest your portrayal of the feminist movement as elitist and/or confined to professional women. I think you would find that many working class women embrace and understand the ideals of feminism more than those nearer the top of the economic scale, regardless of whether they identify themselves with the word "feminist" or not.
That being said, social issues like abortion often stand in the way of building broad coalitions based on economic interests. I'm not sure how to get around that, but if it means surrendering the commitment to choice, I'm against it.

Posted by: Katie at January 22, 2003 04:14 PM

Nothing of substance here, but just a minor nitpick:

"Sociologist Theda Skocpol has noted how an earlier period of conservative judicial activism at the beginning of this century"

which should surely be "at the beginning of the previous century" or "at the beginning of the 20th century", right?

Posted by: Martin Wisse at January 23, 2003 04:09 AM

I think abortion is very wrong. If you want to be irresponsible and let some guy screw you, you shouldnt punish an un-born baby its not their fault.

Posted by: Kiona at April 24, 2003 02:24 PM

Well since most abortions are on minority women it is nothing more than population control for elite liberals. They get to keep their high paying jobs protecting 'womens rights' and black babies get a sizzor in their brain. Yea you elitists care for minorities?????

Democrats need whites to be the majority in America so they force abortions on blacks as a 'right to choose' issue.

Face it you need abortion to keep the Black Population down. Just have the courage to say it....

Posted by: puff driver at April 27, 2006 10:53 AM

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