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Before (and After) Roe v. Wade: New Questions About Backlash


Linda Greenhouse


Yale Law School

Reva Siegel


Yale University - Law School

March 23, 2011

Yale Law Journal, Vol. 120, p. 2028, 2011
Yale Law School, Public Law Working Paper No. 228

Abstract:     
Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics - a conflict in which the Supreme Court was not the only or even the most important actor.

In this essay, we ask what escalation of the abortion conflict in the decade before the Supreme Court decided Roe might teach about the logic of conflict in the decades after Roe. To do so, we draw on sources we collected for our recently published documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (201'7. We begin our story at a time when more Republicans than Democrats supported abortion’s decriminalization, when Catholics mobilized against abortion reform but evangelical Protestants did not, when feminists were only beginning to claim access to abortion as a right. We show how Republicans campaigning for Richard Nixon in 1972 took new positions on abortion to draw Catholics and social conservatives away from the Democratic Party. Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades.

The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.

Number of Pages in PDF File: 60

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Date posted: March 31, 2011 ; Last revised: January 30, 2013

Suggested Citation

Greenhouse, Linda and Siegel, Reva, Before (and After) Roe v. Wade: New Questions About Backlash (March 23, 2011). Yale Law Journal, Vol. 120, p. 2028, 2011; Yale Law School, Public Law Working Paper No. 228. Available at SSRN: http://ssrn.com/abstract=1798222

Contact Information

Linda Greenhouse
Yale Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-2514 (Phone)
HOME PAGE: http://www.law.yale.edu/faculty/LGreenhouse.htm

Reva B. Siegel (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)
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