The Unfinished Story of Roe V. Wade

REPRODUCTIVE RIGHTS AND JUSTICE STORIES (Melissa Murray, Kate Shaw & Reva Siegel eds., 2019, Forthcoming)

Yale Law School, Public Law Research Paper No. 643

21 Pages Posted: 5 Jun 2018 Last revised: 11 Jul 2018

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Linda Greenhouse

Yale Law School

Date Written: June 1, 2018

Abstract

We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.

We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected.

This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey.

The account of Roe’s history the chapter offers can inform both normative and predictive debate about Roe’s future.

Keywords: abortion, liberty, equal protection, due process, privacy, Roe, social movements, religion, feminism,

Suggested Citation

Siegel, Reva and Greenhouse, Linda, The Unfinished Story of Roe V. Wade (June 1, 2018). REPRODUCTIVE RIGHTS AND JUSTICE STORIES (Melissa Murray, Kate Shaw & Reva Siegel eds., 2019, Forthcoming); Yale Law School, Public Law Research Paper No. 643. Available at SSRN: https://ssrn.com/abstract=3189235 or http://dx.doi.org/10.2139/ssrn.3189235

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

Linda Greenhouse (Contact Author)

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

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