More on Roe and Backlash: Mary Ziegler’s After Roe

In a comment to one of my prior posts, Barry pointed out that backlash may not be the right way to see the immediate period after Roe v. Wade, since there is some evidence that the Religious Right did not develop a firm anti-abortion position until several years later.  This is a really good point, and serves as a nice lead-in to this entry, which highlights the excellent work on this topic being done by Mary Ziegler (one of the presenters at the Legal History panel at AALS).    

In particular, through extensive oral interviews and archival research, Mary has unearthed an intriguing and complicating counter-narrative to the commonly held view that Roe itself polarized political and social dialogue over abortion and abruptly halted political compromises and outcomes.  To the contrary, Mary’s work shows that after Roe, advocates on both sides of the abortion issue initially sought compromise positions: some moderate pro-life advocates explored pro-feminist supports for a range of reproductive  choices for women, and some members of the pro-choice movement explored positions and policies that recognized some level of fetal rights.  

While Mary acknowledges that Roe affected the debates and positions, she rejects the idea that it played the dominant role attributed to it by many, including both Justices Ginsburg and Scalia.  Mary concentrates on the political shifts that were taking place simultaneously, in particular the rise of the New Right and its alliance in the late-70s with the emerging Religious Right.  Her work shows how the political dynamics shaping and reforming the Republican and Democratic Parties overwhelmed the other possible alliances and initiatives surrounding reproductive policies and women’s rights. 

I am really looking forward to reading Mary’s book, After Roe: The Lost History of the Abortion Debate, which will be available from Harvard University Press this coming May.  For those of you who can’t wait that long, Mary’s recent article, Beyond Backlash: Legal History, Polarization, and Roe v. Wade, 71 Wash. & Lee L. Rev. 969, covers some aspects of this study and is also well worth a read (as are other articles from that volume, a 40^th Anniversary symposium about Roe.)  Unfortunately that volume is right now only available through Hein, Lexis, or Westlaw, so I cannot link you there.  You can get it at W&L's Scholarly Commons. (h/t to cm for this)

 

 

   

Comments

[cm]

For anyone without access to Hein, etc., video of the symposium is available on YouTube. Both David Garrow and Mary Ziegler speak to problems with prevailing ideas about backlash in session 1, and that thread has run through Garrow's writing since the 90s.

‪W&L Law Roe at 40 Symposium - Session 1‬: https://www.youtube.com/watch?v=xbKP9ks0spk

[cm]

Apologies. Articles are also available through Scholarly Commons.

http://scholarlycommons.law.wlu.edu/wlulr/vol71/iss2/

[James Fox]

Thanks, cm, for catching the Scholarly Commons link and also the youtube videos of the conference. Thanks also for noting David Garrow's work. He has been a consistent (and consistently good) critic of the backlash thesis. And his work from the 1990s, including the book Liberty and Sexuality, are essential pieces in the line of scholarship I highlighted in my posts.

[James Fox]

David Garrow has the following comment (he asked me to post it due to computer issues): I'd just like to say that I think it's crucial for anyone who writes about Griswold to know PPLC's history stretching back to the 1920s, and how deeply dedicated multiple generations of upper-class CT women were to providing contraceptive access for poor, working class, & immigrant community women, many of whom attended churches that fiercely fought against reproductive freedom. That CT political history is essential to understanding why Barnum's 19th century criminalization of contraceptive use was in the end overturned only thanks to a federal constitutional holding by SCOTUS.