Roe As We Know It

26 Pages Posted: 26 Sep 2018

See all articles by Cary Franklin

Cary Franklin

University of Texas at Austin - School of Law

Date Written: 2016

Abstract

It is a truism in American constitutional law that Roe v. Wade triggered a massive political backlash and caused the extreme polarization over abortion that continues to plague American politics. The conventional wisdom is that Roe truncated the democratic process by interrupting a trend toward liberalization of abortion laws at the state level. In so doing, this conventional story suggests, Roe usurped the American people’s prerogative to make decisions about abortion and deprived abortion rights of the more democratically legitimate legislative basis they might have had in the absence of the Court’s counterproductive attempt to secure them through constitutional law.

New historical work substantially undermines this conventional account. This new work reveals that progress toward liberalization had already stalled prior to Roe, as well-organized legislative minorities, strongly supported by the Catholic Church, prevented the repeal of criminal abortion laws. In other words, the backlash against abortion legalization began before Roe, and it came in response to legislative, rather than judicially-wrought, legal change. This backlash attracted the attention of the architects of the New Right, who realized that the abortion issue could be used to swing traditionally Democratic Catholic voters to the Republican Party; there is little reason to believe that a more incremental approach by the Court would have stopped the New Right’s efforts to whip up controversy over abortion and to nationalize the campaign against it. Likewise, it was not Roe that galvanized evangelicals to shift to the right and embrace the anti-abortion cause. It wasn’t until the late 1970s that the New Right managed to swing evangelicals (who until then generally supported abortion rights) to their side, through a “family values” agenda that forged new links between abortion and issues like homosexuality, divorce, and religious freedom. The story that Roe was counter-majoritarian, that it usurped the democratic prerogatives of the people, and that it sparked a political backlash was constructed by the New Right in the late 1970s as part of its campaign to unite previously disparate groups of religious voters around a new “family values” agenda.

Thus, this essay argues, it is nearer the truth to say that polarization around abortion produced “Roe” — the decision we now know — than to say that Roe produced polarization around abortion. The real lessons to be derived from Roe have less to do with the perils of judicial review and more to do with the role of political parties and social movements in making constitutional meaning. As this essay shows, exposing the ideologically motivated roots of the conventional account of Roe opens space for other, more historically accurate accounts of the decision — accounts that understand it as something other than the illegitimate product of a tyrannical Court and a Pyrrhic victory for the left.

Keywords: Roe v Wade, Abortion, Backlash, New Right, Pro-Life, Countermajoritarian, Social Movement, Polarization

Suggested Citation

Franklin, Cary, Roe As We Know It (2016). Michigan Law Review, Vol. 114, No. 867, 2016. Available at SSRN: https://ssrn.com/abstract=3245562

Cary Franklin (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
34
Abstract Views
166
PlumX Metrics