Francis Lorson, the longtime chief deputy clerk of the Supreme Court, once told me the following story. On a January day in the mid-1970s, he and Justice Potter Stewart were in an official car traveling from the court to the White House, where the justice was to preside at a swearing-in ceremony. As they rode along Pennsylvania Avenue, they saw a crowd heading in the opposite direction, up Capitol Hill toward the court.
Justice Stewart, clearly oblivious to the anniversary of Roe v. Wade, asked his companion what was going on. These were people marching in protest against legalized abortion, Mr. Lorson explained.
The justice shook his head in puzzlement. "I don't understand," he said. "We've decided that."
As still another Roe v. Wade anniversary came around this week, I thought of Frank Lorson, who died this month at 69, and his little story. His point, of course, had been to illustrate how simple it all looked back then. Potter Stewart, an Eisenhower appointee who was one of five Republican-appointed justices in the 7-to-2 majority in Roe, retired in 1981, at which time the court's eight-year-old precedent still looked rock solid. Now, not so much, as numerous 40th anniversary commentaries have emphasized.
Many of the articles have focused on how strategic and successful the anti-abortion side has been in erecting obstacles to women seeking abortions and doctors willing to perform them. Last year alone, 19 state legislatures enacted a total of 43 new restrictions on access to abortion (six states accounted for more than half the new restrictions, with the ever-reliable Arizona leading the pack with seven).
I don't mean to minimize this gloomy picture by not dwelling on it here, but I want to make a different point. Clearly, in the intervening 40 years, Roe v. Wade has morphed from Supreme Court decision to symbol - but of what? "Roe v. Wade About Much More Than Abortion" was the headline on an op-ed in Tuesday's USA Today. True enough, but I think one lesson of Frank Lorson's story is that to the justices who decided the case, Roe v. Wade really was about abortion, nothing more or less. To read the actual opinion, as almost no one ever does, is to understand that the seven middle-aged to elderly men in the majority certainly didn't think they were making a statement about women's rights: women and their voices are nearly absent from the opinion.
It's a case about the rights of doctors - fellow professionals, after all - who faced criminal prosecution in states across the country for acting in what they considered to be the best interests of their patients. In "Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling," a book collecting pre-Roe documents that Reva B. Siegel and I published, we reprint an account by Dr. Jane E. Hodgson, a Mayo Clinic-trained obstetrician/gynecologist, of her arrest in St. Paul in 1970 for performing a first-trimester abortion for a patient who had contracted German measles in the fourth week of pregnancy. (In those days before immunization eradicated the threat posed to pregnant women by German measles, the disease commonly caused serious birth defects.) Justice Harry A. Blackmun, formerly the Mayo Clinic's lawyer, knew Dr. Hodgson's story; I had found her account, published in the clinic's alumni magazine, in the justice's files at the Library of Congress.
In decriminalizing abortion, the justices were reflecting a rapid sea change in public opinion that moved over the course of a decade from the elites of the public health and legal professions to ordinary people who viewed the issue as one of policy rather than, as many later would, personal identity. A Gallup poll in the summer of 1972 found 64 percent of Americans agreeing with the statement that "The decision to have an abortion should be made solely by a woman and her physician." A majority of all identified groups, including Catholics, agreed with that statement. There was almost no difference between men and women. The group expressing the strongest agreement - 68 percent - was made up of Republicans. George Gallup's syndicated column discussing the poll results, "Abortion Seen Up to Woman, Doctor," which we reprint in the book, was also in Justice Blackmun's files.
In the immediate aftermath of the decision, nothing seemed to rattle that broad consensus. The front pages of many newspapers the next day played the death of former President Lyndon B. Johnson more prominently than the Supreme Court ruling. Polling during the following months showed that support for the right to abortion actually rose, a sign of what social scientists see as the legitimating effect that Supreme Court decisions sometimes convey.
Among other things that Roe has come to symbolize, court-created conflict figures prominently, but an examination of the period before and after the decision casts serious doubt on the accuracy of the one-dimensional backlash narrative. There was conflict over abortion before the court ruled, driven by the Catholic hierarchy's opposition to the early stirrings of state legislative reform, well before most people even anticipated an eventual Supreme Court ruling. There was conflict after the ruling, late in the decade of the 1970s, as evangelicals, who had not previously expressed categorical opposition to abortion, joined forces with Catholics in a "pro-family" movement with a broad agenda that included opposition to the proposed Equal Rights Amendment and other goals of the women's movement unrelated to abortion. The Rev. Jerry Falwell, founder of Moral Majority, didn't preach his first sermon against abortion until 1979.
As Reva Siegel and I document in a new afterword to the second edition of our book (the 2012 edition that's posted here), Republican strategists throughout the 1970s and well into '80s carefully cultivated the abortion issue in the service of party realignment, with the aim of peeling away urban ethnic Catholic voters from their traditional home in the Democratic Party. It was a Northern version of the successful "Southern strategy," one that took longer to achieve - 20 years, by some measures - but that eventually resulted in today's upside-down world where the once pro-choice Republican majority has disappeared and the Democratic base embraces abortion rights.
With Roe v. Wade having narrowly survived other anniversaries, the heightened focus on Roe at 40 may appear something of a puzzle. It's in part because of the focus on reproductive issues during the presidential campaign and of the incremental gains by anti-abortion forces in the state legislatures. It's also because of the surprisingly rapid evolution of the same-sex marriage issue and of the marriage cases awaiting Supreme Court argument two months from now. Many commentators have invoked the "backlash" issue to express concern - or to shed crocodile tears - over the future of same-sex marriage if the court were to rule broadly in its favor. Federal District Judge Vaughn Walker, presiding over the trial in the challenge to California's Proposition 8, expressed similar concern, making oblique but unmistakable reference to Roe v. Wade in a question to Theodore B. Olson as the trial neared its conclusion in June 2010. "Isn't the danger," Judge Walker asked the plaintiffs' lawyer, "not that you're going to lose this case, either here or at the Court of Appeals or at the Supreme Court, but that you might win it?" And then, in the case now before the Supreme Court, the judge went on to hand victory to Ted Olson, David Boies, and the two same-sex couples they represented.
To look back at earlier Roe anniversaries is to witness the ebb and flow of the abortion issue at the intersection of law and politics. At age 10, in January 1983, support for abortion on the court seemed secure. But Ronald Reagan had won the presidency on an anti-abortion platform (the Republican Party's first such platform, since the party still offered a big tent on abortion in its first post-Roe platform in 1976), and his first Supreme Court appointee, Sandra Day O'Connor, had yet to cast her first vote in an abortion case. When that vote came, in the Akron case on June 15, 1983, the new justice expressed deep reservations about Roe and raised expectations that she would vote to overturn it if presented with the right case.
By 1993, when Roe turned 20, the precedent's future was looking bright. Bill Clinton was in the White House and, the previous June, in Planned Parenthood v. Casey, the Supreme Court had reaffirmed the core abortion right with the unexpected support of Justice O'Connor and Justices Anthony M. Kennedy and David H. Souter, two other Republican appointees widely assumed to be hostile to Roe.
At 30, in 2003, Justice Ruth Bader Ginsburg had succeeded Justice Byron R. White, one of the two dissenters in Roe, who had never reconciled himself to the decision. By a 5-to-4 vote, the court had overturned Nebraska's "partial-birth" abortion law. But by 35, the tide had turned yet again. With Justice Samuel A. Alito Jr. having replaced Justice Sandra Day O'Connor, a new 5-to-4 majority repudiated the Nebraska precedent (without formally overturning it) and upheld the federal Partial-Birth Abortion Ban Act that President George W. Bush had signed into law.
And what will be Roe's fate at 50? Until recently, I shared the sense of doom that pervades the abortion-rights community. But as the history of the last 40 years shows, elections matter, and the 2012 election matters a great deal. Those looking for signs of "regime change," as my colleague Jack Balkin at Yale Law School puts it, can find them in unexpected places. The decision last week by Arizona's governor, Jan Brewer, to accept the Medicaid expansion that she and other Republican governors had fought as part of their lawsuit against the Affordable Care Act was, I believe, an underappreciated portent of shifting tectonic plates. And as was widely reported this week, more Americans than ever before - 70 percent - told a national poll that they didn't want to see Roe v. Wade overturned.
On one of New Haven's main streets, a few blocks from my office, is a building that houses the local Planned Parenthood affiliate. Its clinic provides a full range of women's health services, including contraception and abortion. I grew up about five miles from that location - not then a Planned Parenthood clinic, of course. At the time I graduated from high school, a year before the Supreme Court decided Griswold v. Connecticut, not only was abortion still illegal in my home state, but so was birth control, even for married couples. Every time I drove by the building, and especially this week, I think to myself that despite all the worries and perturbations of the last 40 years, there's progress.
