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Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available at SSRN.

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

This is delightfully, smugly, self-satisfying. It is neither analytic nor strategic. And when, inevitably it seems, our relatively open access to abortion (as Carol Sanger has called it, the “luxury of legality”) starts to be challenged, it might leave us rather less than prepared. Greenhouse and Siegel’s article illustrates how a slow burn, not the blast of Roe v. Wade, led to the bitter struggle over reproductive rights in the U.S. today.

Linda Greenhouse is a journalist and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law at YLS. Together, the authors also published Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling (Kaplan: 2010),which compiles primary documents including legal briefs, pamphlets, and letters, documenting the pre 1973 debate (read more about that book here, and read an excerpt). With their YLJ article, however, they take on one of the standard understandings of the abortion debate in the U.S. – that the intense political conflict and polarization was touched off by the 1973 Roe v. Wade decision.

The article offers a variety of important lessons and ideas to scholars of law generally, but perhaps particularly to feminists and others interested in protecting reproductive rights.

First, Greenhouse & Siegel illustrate the potency of the belief that Roe drove the “realignment of Republican and Democratic voters around abortion” (2072-73) and that the Roe decision “repressed” a political movement creating inevitable backlash (2074-75), providing a selection of published statements from prominent American theorists and academics that accept and further these theses (2073). Yet Siegel and Greenhouse argue convincingly, through the presentation of evidence including but not limited to poll numbers, that these conclusions are not supported by fact.

Second, the article invites us to ask about the broader mistaken conclusions (strategic, causal) that we may have drawn on the basis of these “lessons” from Roe. They also offer alternative explanations of the hyper-conflictual abortion arena in the US, and illustrate how considering these accounts leads us to different questions about the both periods – before Roe (about “the dynamics of conflict in the period after the decision and … the model of politics that implicitly organizes stories of constitutional change.” (2078-79, citations omitted)) and after:

if the Court’s decision in Roe was the sole cause of backlash, why did polls after Roe show no sign of decline in public support for abortion—and by some measures, record an increase in support for liberalizing access to abortion? Who attacked the Court’s abortion decision and when? Why, for example, was there not a single question asked about Roe at the confirmation hearings of Justice John Paul Stevens nearly three years after the decision? …. And, strikingly, why did those affiliated with the Democratic and Republican parties switch positions on abortion in the decades after Roe? (2081-82, citations omitted)

Finally, the article generally points to concerns about taking a juriscentric view of social change (this develops themes seen elsewhere in Siegel’s work, including in Roe Rage: Democratic Constitutionalism and Backlash, with Robert Post, where she offers a “realistic account of how courts actually function in our democracy … a model [called] … “democratic constitutionalism” [in which] interpretive disagreement [is] a normal condition for the development of constitutional law.”). Certainly there is an appealing simplicity to pointing to a case as the turning point, and as the cause of a social phenomenon. It is much simpler than trying to be descriptively accurate when so many institutions were engaged – the church, U.S. feminists (rather belatedly), and Republicans looking for a wedge issue which would loosen the hold of the Democratic Party on Catholics.

This is not to say that cases aren’t important and certainly this article never suggests as much. Rather, Siegel and Greenhouse illustrate that the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself.

This might be particularly pertinent for those in jurisdictions where pressure on “the right to choose” appears to be ramping up, as it seems to be in Canada and in the UK. Carol Sanger recently spoke in the UK about “The Americanisation of abortion politics in Britain” (the 2012 BPAS public lecture March 7, 2012 as described here), looking for ways to support women’s reproductive rights in the “increasingly politicized” UK debate. In both the UK and Canada, abortion is getting attention. Media have focused on sex-selective abortions in ways which have led to calls for more restrictions and policing of choice. This newspaper “expose” in the UK attempted to catch abortion providers acting contrary to law. In Canada, where criminal law regulating the availability of abortion was struck down in 1988, a recent editorial in the Canadian Medical Association Journal decried the practice of “female feticide” and called for restrictions on disclosing sex prior to 30 weeks gestation.  A recent article in the Atlantic describes “The Americanization of The U.K. Anti-Abortion Movement”, pointing to similarities in tactics and rhetoric as the U.K. debate appears poised to move away from the notion that abortion is a “medical issue”. Despite the fact that Canadian Prime Minister Stephen Harper made an election promise that the “abortion debate” would not be reopened, he has allowed one of his backbench MP’s to introduce a motion which calls for reconsidering section 223 of the Criminal Code of Canada (“A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state from the body of its mother…”). This section was never at issue in the constitutional cases regarding abortion, but the motion will be debated April 26, and has definitely energized public comment in Canada, both pro-choice and anti-abortion.

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Cite as: Sonia Lawrence, Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US, JOTWELL (April 25, 2012) (reviewing Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available at SSRN),