52 Pages Posted: 23 Jul 2010
Date Written: July 31, 2009
The Supreme Court's decision in Roe v. Wade, arguably the most hotly debated in recent decades, has produced an impressive body of historical scholarship. The leading histories have focused on the evolution of the arguments and alliances that shape abortion debate today, rights-based pro-life and pro-choice arguments, alliances between women's rights leaders and public health advocates, and the adoption of pro-choice positions by the Democratic Party and pro-life positions by the Republicans. This orientation is unquestionably a sensible one; rights-based arguments, in play before Roe, have come to dominate the debate after the decision. However, by emphasizing rights-based debate before the decision, the current scholarship has mostly missed a significant change in the rhetoric and coalitions on either side of the debate that was partly produced by Roe itself.
Before the decision, a number of policy-based arguments were at least as important to abortion advocacy as was rights-based rhetoric including, most famously, public health arguments about fatalities and injuries associated with illegal abortions. A significant, but less well-known argument involved abortion as a method of population control, designed to check domestic or international population growth. When Roe marginalized population control arguments, the decision changed the arguments and reshaped the coalitions involved in the abortion debate. By neglecting the transition that Roe helped to produce, the leading histories have missed what Roe reveals about how judicial decisions matter politically and culturally. By reframing a political issue, a judicial decision can help to reshape the coalitions and arguments that define the debate.
Roe was not the only reason for the decline of these arguments in the years between 1973 and 1980. Because some African-Americans identified population control reforms with racism, organizations that favored legalized abortion had reason to set aside population control arguments in order to avoid being accused of racism themselves. Particularly after the UN Conference on Population Control in Budapest in 1974, when a variety of Third World leaders argued that population control programs were racist or economically exploitative, there were new incentives to minimize the role of population control arguments in abortion advocacy. And later, in the later 1970s and early 1980s, as pro-choice positions became a staple of the Democratic Party, groups that supported legalized abortion had more reason to make arguments that appealed to racial minorities and other traditional Democratic constituencies.
But if Roe was not the only reason that the abortion debate changed, it was an important reason. Roe brought rights-based arguments into new prominence and shifted the balance in the debate away from policy-based arguments, including those related to population control. As a consequence, population control was effectively eliminated as an influence on the abortion debate. Although political discussion of population control continues to the present day, that debate is almost entirely separate from the abortion debate Roe helped to shape. Although Roe is often believed to show that courts have a very limited ability to produce social change, Roe also offers an example of how judicial decisions can reshape the coalitions participating in political debates and the content of the debates themselves. By minimizing the role of population control in the abortion debate, Roe ultimately changed the way people thought and talked about abortion, and as a result, changed the coalitions on either side of the debate as well.
Keywords: Legal History, Roe v. Wade, Abortion, Gender, Sexuality, and the Law, Reproductive Health Law
Suggested Citation: Suggested Citation
Ziegler, Mary, The Framing of a Right to Choose: Roe v. Wade and the Changing Debate on Abortion Law (July 31, 2009). Saint Louis U. Legal Studies Research Paper No. 2009-14. Available at SSRN: https://ssrn.com/abstract=1646006 or http://dx.doi.org/10.2139/ssrn.1646006