Mary Ziegler, author of Roe: The History of A National Obsession, talks with us about her inspiration for the book, legal education surrounding Roe v. Wade, and the international response to the overturning of the case in 2022.
This conversation has been edited for length and clarity, transcribed from the Yale University Press Podcast. Some questions have been omitted—listen to the full conversation here.
You have published widely on Roe including the award winning After Roe: The Lost History of the Abortion Debate. What unique positions or perspectives come forth in this latest book compared to your other historical work on Roe?
MZ: Well, I think the question that was really motivating me when I started this, which happened before Roe was overturned was, really, why are we obsessed with Roe? “Why Roe?”, in a way. As you probably know, Roe has been widely criticized by scholars across the ideological spectrum. Even before the Supreme Court formally overruled it this summer, there were other precedents on abortion that had superseded it. It had never really meant real world abortion access, and yet there was this kind of cultural fixation on Roe. And so, I set out to understand what that was about. I think that’s something I hadn’t really tackled before. As I was writing the book, I realized that the story of this kind of national obsession with Roe was really not a story about the Supreme Court. It was a story about lots of people outside of the court who projected these meanings onto Roe that the justices probably never would have imagined and much less countenanced.
At a time when ultimately, the book was being completed and published after Roe was erased, right? Properly speaking, the right to choose abortion, recognized by the Supreme Court is no more. It also became an opportunity to meditate on where our rights come from, where historically they’ve come from, but also where they will come from going forward. I think we’ve been inclined to see Roe as a story about how our rights come from the federal courts. But when you notice how much even our ideas of Roe have morphed and have been shaped by processes outside of the federal courts, whether that’s in state legislatures, in grassroots movements, in state courts even, then I think you have a much more complicated picture of what our rights are and where they come from.
As a student, when you were first learning about Roe, what attracted you to the history of abortion in America and writing about it for a public audience?
MZ: I think it was actually kind of a funny story. So, I was a law student and I was taking a legal history course. One of the things that had interested me about legal history, I was always sort of interested in how our world changes, how progress happens, how we move back. What kinds of things provoke these changes? As a young person, I thought law obviously had something to do with that, but I assumed law also had pretty serious limits as a tool for change. And one of the ways of course, people answer that question is by looking at historical examples, to see what has and hasn’t worked. I was expecting in my class, that Roe would be maybe the quintessential case study, or at least one of the quintessential case studies.
We finished the semester, and we hadn’t read anything about Roe. I went to my professor, whom I really, deeply admired, and said, you know, basically “What’s up? Why didn’t we read Roe?”. And he said, “Well, you know, there really isn’t a book on the aftermath of Roe.” There’s lots of really amazing history on how we got to Roe and the lawyers who were behind Roe, even Jane Roe herself. The aftermath. . . .the world that Roe helped to produce. There really isn’t anything on that.
And so, I thought, well, you know, I wanted to find out essentially, I was curious. And I think that’s often how historians, there’s a sort of treasure hunt, kind of detective work aspect to it. When I was in law school, I began going to archives and trying to dig into some of these questions that were really interesting me. . . .The fact that no one had written about it, or not much, was not because people didn’t understand the importance. It was because. . . .Roe is so much a national obsession, because abortion is such a lightning rod, most of the really important work being done in this space was on what ought to happen. Right, on normative questions, and not so much on historical questions. I think there was probably also a need that was not being entirely met, and probably still isn’t being entirely met. There’s still room for a lot of scholarship in this space.
How is the repeal of Roe in the United States being talked about on an international level, with politicians across the globe?
MZ: It’s a question of, really, soft power. Historically, Roe was a pretty big influence on other countries, constitutional courts, and other constitutional interpreters, whether that was legislators, politicians, leaders. In part because Roe was first, and I think people gravitated to it as an expression of whether there could be fundamental rights involving reproduction. I think the fact that the Supreme Court not only ruled the way it did, but did so in a way that a lot of people across the globe didn’t really find very convincing, makes it harder for the US courts in general to have that kind of soft power. To be a place that other courts look to for guidance in solving their own constitutional problems.
That’s been some of the conversations that are unfolding. Obviously, it’s complicated. . . .it may help groups that are opposed to abortion in other parts of the world. But I think mostly, it’s going to be a question of, you know, diminishing the influence of the Supreme Court, rather than the other way around.
Is there anything that you want readers specifically to take away from your discussion of Roe in this book?
MZ: It was a fairly hopeful book to write. If you’ve read any of the Supreme Court decision overruling Roe, the message is, “Look, folks, the debate about abortion is over. And there’s no more, nothing really more to be said about the Constitution and abortion. So, we can all just, you know, move on to other things.” Now of course, that was never going to happen. The history leading up to that opinion and the history following that opinion, is really one where people’s constitutional rights were being shaped in lots of arenas, not just by the US Supreme Court.
They were always being shaped at the ballot box by voters, always by state legislators, always by state courts, always by grassroots movements. The book is really a story about how those conversations have been happening the whole time Roe was the law. And there’s no reason to think those conversations are going to be supercharged now. So, if people are feeling demoralized or if people are just feeling too obsessed with the Supreme Court. . . .this is a good reminder that if you’re seeking to change something, whether it has to do with abortion or something else, and you think the Constitution is going to help you, that the places you should be looking to act are much more varied than you know, Justice Alito would have you believe.
Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California, Davis, and author of six books on the law, history, and politics of abortion and American conservatism. She lives in Sausalito, CA.
Fashion or Function?