46 years ago Roe v. Wade became a cultural and moral lighting rod across the country. Still debated today, we look back at the history behind the controversial decision.
Since it was decided forty-six years ago today, “Roe v Wade” – and the less-famous companion case “Doe v. Bolton” – have remained controversial to say the least.
Early on, Laurence Tribe of Harvard Law School said that “Roe” went “to lengths few observers had expected, imposing limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”
About two decades later, before joining the High Court, Ruth Bader Ginsburg remarked that “Roe” was not a “measured motion” because it “invited no dialogue with legislators.” Instead, it created “a set of rules that displaced virtually every state law then in force.”
Clarke Forsythe is a former president of an antiabortion advocacy group. He writes in his book: “Abuse of Discretion: The Inside Story of Roe v. Wade” that “the sweeping scope of “Roe” and “Doe” isolated the United States as one of approximately nine countries that allow abortion after 14 weeks and one of only four nations (with Canada, China, and North Korea) that allow abortion for any reason after fetal viability.”
In another excellent book on the subject, author Daniel K. William’s “Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade” reminds us of the pro-life movements origins in America.
He notes in “Defenders of the Unborn” that the antiabortion side was largely a Catholic movement. It may have been initially bound up in the Church’s stance against contraception but in the 1960s it became more strategic focusing on the human characteristics (humanity?) of the fetus.
It became, in other words, an issue more about human rights and less about sex. As such it had strong support inside the Democratic Party including among those sectors that involved in civil rights activism and protests against the Vietnam War.
Ted Kennedy, for example, wrote a constituent in that era: “Wanted or unwanted, I believe that human life, even at its earliest stages, has certain rights which must be recognized—the right to be born, the right to love, the right to grow old. When history looks back to this era it should recognize this generation as one which cared about human beings enough to halt the practice of war, to provide a decent living for every family, and to fulfill its responsibility to its children from the very moment of conception.”
And the antiabortion movement was gathering strength.
Mr. Williams writes:
“By the summer of 1972, momentum had clearly swung toward the pro-life side. Both sides expected that some of the states that had recently legalized abortion might soon rescind those laws.”
“Roe” changed all of that.
Mr. Kennedy left the pro-life side. So did Jesse Jackson, Richard Gephardt, and Albert Gore who had said that abortion was “arguably the taking of a human life” and who had an antiabortion voting record in Congress.
On the GOP side, leaders who had been pro-choice largely for libertarian reasons such as Barry Goldwater, Gerald Ford and Bob Packwood saw their influence ebb.
Mr. Williams points out two closely interrelated developments.
First, “Roe,” gradually at first but soon enough with torrential force, brought evangelical Christians to antiabortion activism. Previously most evangelicals lacked a theology on when life began and saw abortion as a “Catholic issue,” inextricably tied to backward ideas on birth control and perhaps breaching the separation of church and state. That changed, and as we recall either evangelical leader James Dobson or the Reverend Jerry Falwell saying in thanking Catholics for their long stand against abortion, “reinforcements have arrived.”
(For those paying attention, antiabortion views have created the most significant instance of ecumenism in the US.)
Second, by shutting down legislative discussion “Roe” led through the ensuing decades to a partisan division. Antiabortion Democrats are for all purposes extinct. The last best example of this species was Congressman Bart Stupak of Michigan who in 2010 was photographed smiling idiotically thinking that he had persuaded President Obama to an important antiabortion policy in return for support of the Affordable Care Act.
Pro-choice Republicans have slightly more power in their party but tend to make their peace with party platforms that are antiabortion. Voters who are antiabortion, who are true to their beliefs that “Roe” has resulted in the death of about one million innocents each year, disproportionately black and about half extinguished in repeat abortions had little choice but to support Donald J. Trump in the general election in 2016.
In fairness to Mr. Trump his judicial appointments have validated these voters’ choice.
Our view: Ruth Bader Ginsburg was right and more discussion in the legislatures would have gotten us to a better place.