According to conventional wisdom, the Supreme Court's decision in Roe v. Wade short-circuited the democratic process and provoked a backlash over abortion that has polarized our politics ever since. Linda Greenhouse and Reva Siegel challenge that view in an essay recently posted on SSRN. Drawing on sources in their recently published documentary history, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling, Greenhouse and Siegel argue that it was the national political parties' competition for voters, and not only the Court's decision, that generated the current level of discord. They point to mobilization of the National Conference of Catholic Bishops in the late 1960s, and to Richard Nixon's 1972 campaign for President, as examples of "how ordinary politics can produce escalating forms of conflict over abortion, without the intervention of courts."
The essay is a fascinating account of the abortion debate prior to Roe, especially in its description of the political parties’ realignment on this question. (Before Roe, a Gallup poll showed that more Republicans (68%) supported abortion than Democrats (59%)). The authors draw interesting connections to issues before the courts today, such as whether there is a constitutional right to same-sex marriage, and suggest that courts should not shy away from resolving these questions out of fear of provoking a Roe-like backlash. Greenhouse and Siegel may not convince the many skeptics, but with this essay they have added meaningfully to the debate over the relationship between courts and politics.
Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Apr. 11, 2011, 10:23 AM), http://www.scotusblog.com/2011/04/academic-round-up-67/