Roe as We Know It

Cary Franklin*

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.

* Professor of Law, University of Texas School of Law. I am grateful to Judy Coffin, Joey Fishkin, Jim Fleming, Willy Forbath, Linda Greenhouse, Linda McClain, Doug NeJaime, Reva Siegel, and the participants in the Gender, Law and Policy Colloquium at Boston University School of Law for their thoughtful comments on this piece, and to Kelsey Chapple for excellent research assistance.

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