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March 15, 2005

How Roe Undermined the Pro-Choice Movement

In arguing against judicial activism, I've cited Justice Ginsburg for her criticism of Roe in the past, so I thought these comments by Ginsburg last week should give folks pause on their enthusiasm for liberal court action:

When the court decided Roe v. Wade, Ginsburg said, "The law was changing."

"Women were lobbying around that issue," she said. "The Supreme Court stopped all that by deeming every law - even the most liberal - as unconstitutional. That seemed to me not the way courts generally work."

More than the backlash inspired in the opposition to abortion rights, it was the political demobilization of the pro-choice movement that was the tragedy of Roe. So much emphasis shifted to defending the legitimacy of court power that liberals lost both the political coalitions and the vocabularly for arguing for abortion rights on its merits as a electoral issue rather than as judicial one.

Scott Lemieux and I have been having a leisurely back-and-forth on the bad effects of Roe, with his most recent reply here. Scott doubts that Roe was that significant by itself in creating the religious right backlash against abortion rights. First, there is lots of evidence that a slew of new national rightwing groups emerged in response to Roe and older institutions, like the National Association of Evangelicals write in their official history that they expanded their political operations in response to Roe: "While the Court did not foresee it, the decision awakened evangelicals to the world of politics in general and the nation's capital in particular."

Demobilizing the Movement: But the backlash was especially significant because it was matched by the demobilization of pro-choice activists emphasized by Justice Ginsburg. The liberals supposedly had the courts, so they increasingly left electoral politics around abortion to the rightwing, save for intoning against the dangers of bad judicial nominations. Poor women may have been stripped of any rights to funding for abortion by those same courts, but liberals had to defend them as neutral arbiters.

Scott argues that Clinton never "sold out" on abortion, so why wasn't a national abortion rights law passed when the Dems fully controlled Congress and the Presidency in 1993 and 1994? When the Webster and Casey decisions seemed to threaten to overturn Roe, activists proposed a "Freedom of Choice Act" to protect abortion rights nationally, a measure that had majority support in both houses of Congress. Yet once Casey was decided, the legislation was largely shelved and it was never pushed to a vote. Nothing illustrates the demobilization of the pro-choice movement more than that, when they had the political strength, they failed to try to pass a national abortion rights law.

It's worth remembering this history, with gay marriage in the courts. Again, gay rights has been winning electorally; civil unions have been enacted into law in a number of states and more are likely to follow, and gay marriage achieveable as states gain experience with civil unions. Court decisions look like a short-cut to achieving gay marriage sooner, but those decisions at best will speed it up in a few already gay rights-friendly states while retarding progress in other states.

Posted by Nathan at March 15, 2005 08:21 AM