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The Puzzle of Roe v. Wade

It may be a bit of mystery why we care so much about Roe. The Court has issued other blockbuster opinions, and they have mostly faded into obscurity. Debates about gun violence rage on but do not consistently focus on District of Columbia v. Heller, the 2008 opinion recognizing an individual right to bear arms. The Court’s recent decisions on voting rights, including Shelby County v. Holder and Brnovich v. Democratic National Committee, have opened the door to a wide range of new restrictions on voting. While voter rights—and election subversion—are hot topics, few Americans structure these discussions around Shelby County. The Court’s decision on corporate campaign spending, Citizens United v. Federal Election Commission, is recognizable to many Americans and has sparked protests of its own. But Citizens United is no Roe v. Wade. It has not been at the center of the same intense social movement conflict or figured as centrally in judicial nominations or national elections.2

Perhaps the difference lies in our deepening partisan divides. Partisan affiliation is now one of the best predictors of one’s attitude toward abortion. Political polarization may explain the toxicity of our abortion politics, especially as Americans hold increasingly negative attitudes about the opposing political party. Still, even in this environment, the abortion issue seems uniquely polarized. It divides the United States by region, religion, and race. Perhaps it is not Roe that is unique but abortion itself.3

It is true, of course, that abortion touches on deeply held convictions about sex, sexuality, the role of physicians, religion, and the beginning of human life. Sociologists have shown how attitudes about abortion correlate with beliefs about everything from motherhood to science. But Roe is not the Supreme Court’s only abortion decision. It does not even define the Court’s current approach, which is laid out in Planned Parenthood of Southeastern Pennsylvania v. Casey. Our unique fascination with Roe goes beyond our national fracture on abortion.4

This interest in Roe is even more puzzling given the scholarly criticism the decision has received. Almost from the start, commentators across the ideological spectrum have questioned the opinion’s reasoning, which did not draw on constitutional text, history, or other conventional sources of interpretation. Ruth Bader Ginsburg, who would become the Supreme Court’s most vocal defender of abortion rights, often argued that Roe went too far too fast and undermined the prochoice movement’s earlier progress. Feminists like Catharine MacKinnon described it as paternalistic and unconvincing. Originalists, starting with Robert Bork, have found it little short of horrifying. It is surprising that we care so much about a decision that is criticized by so many.5

A handful of other judicial decisions also occupy a central place in constitutional discourse. Brown v. Board of Education, the Court’s desegregation opinion, is the most canonical decision in constitutional law, an opinion virtually everyone agrees was correctly decided. There are also decisions that everyone despises, from Dred Scott v. Sandford on slavery to Plessy v. Ferguson on segregation. But Roe does not fit well in either the canon or the anti-canon. To be sure, like Brown, it is used to mean many things. And like Brown, it gets drawn into debates about the values that are fundamental to the nation’s identity. But Roe’s hold on us stems not from what it reveals about our shared values but from what it says about the things that divide us. Roe is a captivating symbol of disagreements that seem as simple as they are intractable.6

But Roe also compels us because it reveals how our disagreements are rarely black and white, even in a time of intense polarization. We often think of it as a stand-in for the most divisive subjects in our cultural wars, but it has also become a vault where we store the ambiguities and contradictions of our abortion politics. When we talk about Roe, we often articulate views that do not fit within a conventional pro-life/pro-choice framework, and that touch on questions we are tempted to push aside. We talk about Roe so much because we have made it a symbol of the nuances the Supreme Court has supposedly made it harder to discuss.

From Roe: The History of a National Obsession by Mary Ziegler. Published by Yale University Press in 2023. Reproduced with permission.

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.

2 On the politics of gun rights and gun control, see Hana Bajramovic, Whose Right Is It? The Second Amendment and the Fight over Guns (New York: Henry Holt, 2020); Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America (New York: Norton, 2011). For the Court’s decision in Heller, see District of Columbia v. Heller, 554 U.S. 570 (2008). For recent debate about voter suppression, election laws, and subversion, see Richard L. Hasen, “Republicans Aren’t Done Messing with Elections,” New York Times, April 23, 2021, https://www.nytimes.com/2021/04/23/ opinion/republicans-voting-us-elections.html, accessed October 11, 2021; Paul Steinhauser, “Republican Party Launching a New Election Integrity Commission,” Fox News, February 21, 2021, https://www.foxnews.com/politics/republican-partylaunching-new-election-integrity-committee, accessed October 11, 2021. For the Court’s decision in Shelby County, see Shelby County v. Holder, 570 U.S. 529 (2013). For the Court’s decision in Brnovich, see Brnovich v. Democratic National Committee, 141 S.Ct. 2321 (2021). For the Court’s decision in Citizens United, see Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

3 On the importance of partisanship in predicting abortion attitudes and political identity, see Michele Margolis, From Politics to the Pews: How Partisanship and the Political Environment Shape Religious Identity (Chicago: University of Chicago Press, 2018); see also Kelsey Dallas, “What We Misunderstand about the Role of Religion in Abortion Politics,” Deseret News, May 22, 2019, https://www.deseret.com/2019/5/23/ 20674119/what-we-misunderstand-about-religion-s-role-in-the-abortion-debate#inthis-friday-jan-18–2019-file-photo-anti-abortion-activists-march-outside-the-u-ssupreme-court-building-during-the-march-for-life-in-washington-has-the-abortiondebate-moved-from-a-strictly-religious-sphere-to-a-partisan-and-political-one, accessed October 11, 2021. On the spread of negative partisanship, see Alan I. Abramowitz, The Great Alignment: Race, Party Transformation, and the Rise of Donald Trump (New Haven, CT: Yale University Press, 2018), 3–16; Lilliana Mason, Uncivil Agreement: How Politics Became Our Identity (Chicago: University of Chicago Press, 2018), 28, 94

4 For a sample of leading sociological analyses of Roe, see Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984); Ziad Munson, The Making of Pro-Life Activists: How Social Movement Mobilization Works (Chicago: University of Chicago Press, 2008); Faye Ginsburg, Contested Lives: The Abortion Debate in an American Community (Berkeley: University of California Press, 1989).

5 For an overview of scholarly criticisms of Roe, see Mary Ziegler, After Roe: The Lost History of the Abortion Debate (Cambridge, MA: Harvard University Press, 2015), 3–15.

6 For the Court’s decision in Dred Scott, see Dred Scott v. Sandford, 60 U.S. 393 (1857). For the Court’s decision in Plessy, see Plessy v. Ferguson, 163 U.S. 537 (1896). For the Court’s decision in Brown, see Brown v. Board of Education, 347 U.S. 483 (1954).

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