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Roe and Same-Sex Marriage

[ 69 ] March 25, 2013 |

Longtime readers will know that the issues discussed by Liptak here are some of my longest-standing hobbyhorses.  I won’t repeat my arguments in full, but a few comments with links for those interested in more:

  • The argument that Roe created a counterproductive backlash is, I think, wrong in almost every detail.   Roe has always been popular;  there’s no evidence that winning in the courts has different consequences than winning in other political institutions; and the argument that abortion rights would be as well or better protected if not for Roe is implausible in the extreme.
  • The specific, oft-cited argument made by Ginsburg is, I think, wrong in two crucial respects.   First of all, Ginsburg’s argument that the decision would have been more broadly accepted had it rested on equal protection grounds is almost certainly wrong.  The public evaluates decisions based on results, not reasoning, and essentially nobody without a professional obligation to do so reads Supreme Court opinions.   Second, I don’t understand the argument that a “minimalist” opinion just striking down the Texas law wouldn’t have generated a backlash.   The Texas law, while extreme in terms of its language and implications, wasn’t “extreme” in the sense of being an outlier; more than 30 states substantively identical abortion statutes that also would have been struck down.   And following that, of course, would have been additional rounds of litigation to determine whether arbitrary panels of doctors and other “reform” laws were constitutional.   That’s not a formula for lesser conflict.
  • In terms of application to the same-sex marriage cases, then, liberals shouldn’t be hoping to win by losing or whatever.   There’s no reason to believe that a broad opinion invalidating same-sex marriage would produce any more backlash than legislative repeals would.   There would be more “backlash” only if you (plausibly) assume that absent Supreme Court decisions many states would maintain their bans on same-sex marriage for a long time.   In other words, you can avoid backlash by just not winning, an argument I consider self-refuting.

…Irin Carmon has more on the Ginsburg argument.

Comments (69)

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  1. Dana Houle says:

    Roe is deeply unpopular among people who oppose it and know that if hadn’t been decided by the court that they could have continued to outlaw abortion in most states.

  2. José Arcadio Buendía says:

    Roe was the Watergate of the Supreme Court for conservatives and Bush v. Gore was its Watergate moment for liberals. A fortiori, this means we should just want the best results from the courts because (duh) it is a political institution just like everything else.

    But there was a backlash. Just because Roe was popular didn’t mean that it didn’t generate one, and it became a leading issue in almost every subsequent court nomination.

    Now, having said all of that, people who want to win the “right way” are stupid to worry. Get the win, then defend it. But to suggest that a Court ruling making gay marriage legal everywhere won’t generate a backlash is silly. It will. It just probably won’t move public opinion.

    • Scott Lemieux says:

      But there was a backlash.

      I didn’t say there wasn’t a backlash. I said that there’s no reason to believe that it was a bigger backlash than would have been generated by legalizing abortion any other way.

      • Bill Murray says:

        No, you said,

        The argument that Roe created a counterproductive backlash is, I think, wrong in almost every detail. Roe has always been popular;

        , so either you think it produced a productive backlash, or there was no backlash.

        Whether Roe created a different backlash than if the same result had been achieved by law making is a separate question you deal with in the remainder of the first bullet.

        Now that may not have been what you meant, but it is clearly what you said.

        • Scott Lemieux says:

          No, there is in fact a third reading that unlike either of yours actually makes sense. Allow me to focus the key word:

          counterproductive

          i.e. “a backlash that made the case not worth winning.” I reiterate that no such thing occurred. But the fact that there was no counterproductive backlash doesn’t mean that there was no backlash.

  3. I agree that it was best for the issue to be decided by judicial decision rather than by the process of state-by-state legislation: the inequities in the piecemeal approach would have been atrocious. I’m do not agree that the grounds upon which Roe was decided are irrelevant. Had Roe been decided as an extension of Griswald, rather than as Blackmun approached it two (good) things might have happened. The first is that the jurisprudence of privacy would have been advanced. Who can say what differences that would have made? Certainly we would be operating in a society with a far more advanced conception of privacy rights. Secondly, the tactics of the anti-reproductive freedom crowd would have much different. Instead of devising complex work-arounds and tricky regulations intended to chip away at Roe they would have been stuck with making frontal attacks, arguing that reproductive choice should not be a right. That is a case that they’ve tried to make in the past and it is pretty clear that it is a political loser.

    • Scott Lemieux says:

      Had Roe been decided as an extension of Griswald

      It was!

      Secondly, the tactics of the anti-reproductive freedom crowd would have much different. Instead of devising complex work-arounds and tricky regulations intended to chip away at Roe they would have been stuck with making frontal attacks, arguing that reproductive choice should not be a right.

      Completely disagree, not least because of point #1.

      • I’m not so sure that Roe is properly read as an extension of Griswald. It seems to me that it was more of an attempt to contain the concept of a penumbral right to privacy by conducting a fact-intensive analysis balancing competing interests. Blackmon’s opinion references several state interests in restricting abortion: the state’s interest in protecting women from potentially hazardous medical procedures; maintaining health and medical standards generally; and the interest in protecting prenatal life. (“Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”)

        Although Blackmon specifically rejected the concept of fetal personhood under the 14th Amendment he nevertheless says that the state has an interest in protecting fetal life, and that this interest “is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education”. He slides by procreation rather neatly, as if by talking fast we won’t notice it, but the reality is that what he is saying is that reproductive autonomy is not, per se, a privacy right. In this connection it is worth pointing out that the penumbral right of privacy as it has evolved in American jurisprudence, is largely a Fourth Amendment right, and therefore has evolved principally in a penal context. Roe, of course, is no exception. Although Douglas engages in a certain amount of gymnastics in Griswald it is nothing like the contortions that Blackmon goes through, and had Roe been reasoned differently subsequent attempts to thwart it would have taken a different tack. We still see legislatures which seek to define personhood, but those aren’t the real problem. The sort of regulation that nibbles away at Roe by imposing police power regulation on access to abortion is where the action is, and that could have been avoided.

  4. Josh G. says:

    I agree that most people (both left and right) think in terms of substance rather than procedure, and therefore don’t particularly care whether a specific social change was enacted through the legislature or through the courts. We see, for example, that the democratic enactment of PPACA and even its upholding by the Supreme Court hasn’t seemed to stop the determination of the far right to derail health reform.

    Yet even so, it’s easier for court decisions than legislative enactments to create backlash, because it’s easier for the courts to get out of touch with what non-elite Americans believe. The legislatures must pay at least lip service to popular belief; the federal courts need not. It’s true that Roe probably didn’t create any more of a backlash than a democratically-enacted federal Freedom of Choice Act would have, but that’s because the substantive holding of Roe was popular. On the other hand, there was a lot of backlash against the politically unpopular conclusions in Engel v. Vitale, Swann v. Charlotte-Mecklenburg Board of Education, and the various decisions upholding the procedural rights of criminal defendants, and this backlash continued for decades. In fact, much of the Religious Right mobilization alleged to be about Roe was actually about Green v. Connally (the abolition of tax breaks for segregated private schools) instead.

    • Barry says:

      “I agree that most people (both left and right) think in terms of substance rather than procedure, and therefore don’t particularly care whether a specific social change was enacted through the legislature or through the courts. We see, for example, that the democratic enactment of PPACA and even its upholding by the Supreme Court hasn’t seemed to stop the determination of the far right to derail health reform.”

      A thousand times this!

      You don’t see right-wingers arguing against Bush vs. Gore – they won.

      If SCOTUS overturns/gut the VRA, you will have to look very hard to find right-wingers who have a problem with Scalia’s dog vomit of arguments.

      And so on.

  5. Glenn says:

    I particularly find ridiculous that idea that Roe was a failure because it was intended to resolve the abortion question once and for all, and it didn’t! Even to the extent anyone on the Court might have been foolish enough to think that they were the last word on this, obviously that was not the purpose of the ruling. Imagine anyone saying that Brown was a failure because it didn’t settle school segregration issues once and for all, and thus the Court shouldn’t have gone “so far, so fast.”

    The funny thing is, given the clear direction of public opinion on marriage equality, a clear pro-equality ruling from the Court this term probably would effectively settle the issue. There’s just not going to be any long-lasting anti-marriage-equality movement with any real political legs in this country (he says, hopefully).

  6. Murc says:

    I’m curious, Scott. How are we defining “backlash” here?

    I often hear it described in terms of “well, there are plenty of people who aren’t necessarily opposed to abortion rights, but consider the vehicle by which they were provided to be illegitimate.” This, of course, is hogwash. While it is true there are people who agree with policy position X but think that implementation Y was an illegitimate exercise of power (I’m one of them when it comes to some issues) they do not exist in any great numbers. You’ve done takedowns of this viewpoint more than once, and they’ve been convincing ones.

    However, I think there’s a case to be made that there was at the very least a moderate… I don’t know if backlash is the right term for this. People who were against abortion for whatever reason, but were quite happy with the fact that their states had more-or-less banned it and who generally weren’t hugely politically engaged. Roe cracking open the gate on that angered them up, got them involved, out there proselytizing and knocking on doors and giving as much money as they could spare to the Republicans in order to stop the damn baby-killing liberals.

    Essentially, there’s an argument that Roe turned a non-trivial number of people from “votes conservative, doesn’t really think about it between elections” to “votes conservative, donates money and time to the cause, is filled with passionate intensity.” This is an argument I’ve always sort of accepted, because it SEEMS correct.

  7. So many people have the anti-democratic desire for an end to politics. “Wouldn’t it be nice if all these arguments would go away and everyone could just agree with me?” It’s a comfortable, but unrealistic way to think. Fighting with words is what democracy is.

    Progressives can’t win the fight by losing, but we also can’t end the fight by winning. Arguments over abortion rights will go on whatever the Supreme Court decides, because there are opposing interests and opposing ideologies that will not go away.

  8. Sebastian H says:

    Scott’s argument is that the nascent Christian conservative movement existed before Roe (true) which he seems to interpret as meaning that it would have gotten just as big and powerful and dedicated even without Roe (unknowable counter factual but I would tend to bet totally wrong).

    Anecdata and all that, but my parents and all their friends went from Hippie Denocratic party voting California Christians to voting Republicans over Roe. It seems to me that it greatly expanded a movement that didn’t have to be as powerful as it became.

    Also the “Roe has always been popular” argument works only if you don’t look carefully. The American public is way more comfortable with abortion restrictions that aren’t legal under Roe than is shown by a Roe yes or no question. And even if we grant you the statement that it is popular, that doesn’t deny that Roe energized a huge (but perhaps not quite majority) counter reaction which has ended up really hurting American politics in ways that could have been avoided by going through the trenches at the state level.

    • Scott Lemieux says:

      which he seems to interpret as meaning that it would have gotten just as big and powerful and dedicated even without Roe (unknowable counter factual but I would tend to bet totally wrong).

      But, remember, the counterfactual has to be “also wouldn’t have grown any bigger had Congress created a national right to abortion.” I agree that you can minimize backlash by just not winning, but so what?

      The American public is way more comfortable with abortion restrictions that aren’t legal under Roe than is shown by a Roe yes or no question.

      In context, this is beside the point. If Roe is more popular than the underlying policy established by the Court, that’s pretty much checkmate for the backlash argument. Also, as of 1992 there’s virtually no regulation short of unpopular bans of pre-viability abortions that the Court doesn’t permit.

    • liberal says:

      The American public is way more comfortable with abortion restrictions that aren’t legal under Roe than is shown by a Roe yes or no question.

      Not sure how meaningful that is. Most people who get “elective” abortions (ie ones done for other than severe fetal deformities) tend to get them fairly early. Those who get them late tend to get them for things like anencephaly, which most people in the public would be pretty sympathetic with (contrary to moral monsters like Henry Hyde, who lectured a woman who had been in such a position).

      The American public might think it’s uncomfortable with the practical realities of Roe, but mostly to the extent that they haven’t really thought about the question much.

      • JL says:

        Some (29%) who get them relatively late (16 weeks or later) do so because it takes them that long to find the money to get the abortion (Torres & Forrest, 1988).

        This is also to a large degree because of moral monster Henry Hyde.

    • Malaclypse says:

      Scott’s argument is that the nascent Christian conservative movement existed before Roe (true) which he seems to interpret as meaning that it would have gotten just as big and powerful and dedicated even without Roe (unknowable counter factual but I would tend to bet totally wrong).

      Except, as per the Slactivist link, and also my childhood miseducation by fundies, the rise of the Christian right had a lot more to do with the crumbling of segregation than it did with Roe. Roe was a non-issue until Reagan. In elementary school, we were taught that the federal government was evil for persecuting Bob Jones, not for abortion.

    • Barry says:

      Read the link posted by thebewilderness – it’s very good.

      The evangelical right was *not* against abortion, or Roe vs. Wade.
      That came about later, during the course of the 70′s, and seems to have been driven more by desegregation.

  9. Just Dropping By says:

    While I do believe Roe created a “backlash” (in the sense of motivating a sizable group of people to actively work and donate money for conservative causes who were more passive before), I see no risk of a comparable “backlash” with regard to a SCOTUS ruling in favor of same-sex marriage for the simple reason, as others have pointed out, that abortions are private and sad one-off events, while weddings are public and happy events that lead into an ongoing legal status.

    (To put it another way, opposing same-sex marriage once such marriages start happening makes you look like a monster who wants to break up other people’s marriages. Opposing abortion makes you look like someone who wants to save cute babies from being killed. People don’t like imagining themselves as monsters; they do like imagining themselves as heroes. This is why millions of hours, and billions of dollars, have been spent fighting Roe v. Wade, while there’s no major national group devoted to overturning Loving v. Virginia.)

    • liberal says:

      Opposing abortion makes you look like someone who wants to save cute babies from being killed.

      That’s merely because no one has seen fit to create, and/or TV stations refuse to air, commercials featuring a handsome, older upper middle class couple crying about their daughter being forced to bear her rapist’s child.

    • All abortions are sad? According to whom?

      • Murc says:

        Are you arguing they aren’t?

        If someone has an abortion, then by definition they’ve had an unwanted pregnancy. That’s… sad.

        • CaptBackslap says:

          That’s actually the less sad scenario.

        • JL says:

          The unwanted pregnancy may be sad. That doesn’t mean the abortion is.

          I’ve spent a lot of time talking to people who are seeking abortions (I volunteer with an abortion fund, which gives grants and financial counseling to people who can’t afford their abortions). Some are sad about their abortions (albeit still wanting to go through with them). Most are strongly relieved.

        • Origami Isopod says:

          All these women will tell you that theirs weren’t.

          The framing of abortion as a “tragedy” is wrong. It is not a tragedy. It is a medical procedure.

      • According to whom?

        Duh. According to some white men, who will let you little ladies know what actions and feelings are proper and appropriate when it comes to your lady gardens.

        • Ed says:

          Yes, you must always be sad, ladies, because abortions are always sad. At least, you shouldfeel sad, and not just relieved or freed from a weight on your shoulders or a threat to your health, because remember that would have been your cute baby, and YOU GOT RID OF IT!

          • “or a threat to your health”

            Not that I really think this is a productive discussion to begin with, but I’m gonna go out on a limb and venture that if a woman is having an abortion specifically because of a health concern, that suggests that the pregnancy was wanted, and makes it pretty damn logical to assume she’s going to be pretty sad about the whole thing. Similarly, I can personally attest to knowing a few women who have had “non-medical” abortions and who felt pretty broken up over it later, even if they didn’t regret it, per se.

            So, basically…so what? Whether someone feels some level of sadness over making a choice that they feel is right for them is neither here nor there, and I’d say it’s far more productive to leave it aside altogether as wholly irrelevant than to sit around arguing amongst ourselves about the individual emotions surrounding a very personal matter.

            • Ed says:

              Not that I really think this is a productive discussion to begin with, but I’m gonna go out on a limb and venture that if a woman is having an abortion specifically because of a health concern, that suggests that the pregnancy was wanted, and makes it pretty damn logical to assume she’s going to be pretty sad about the whole thing.

              Maybe, maybe not, depending on the circumstances. It’s entirely her business. I would agree that speculation is pointless. Nonetheless, I do think it’s important to resist the trope that abortions are ever and always a matter for “sadness” or endless handwringing generally.

      • sharculese says:

        I was trying to think of a way to snark on that all day, and I couldn’t. So props, vs/dr. ken. you’re always on the cutting edge.

  10. I remember when we lost on the Equal Rights Amendment, and then because there was no backlash, the conservative movement totally abandoned its attempt to roll back women’s rights, and went home.

  11. Bruce Baugh says:

    Roe didn’t create a backlash. Racist liars eventually created a backlash against Roe, after years of work and millions of dollars spent. Fred “Slacktivist” Clark is must reading on this subject, as with “The ‘biblical’ view that’s younger than the Happy Meal”.

  12. Incontinentia Buttocks says:

    I heard Peggy Noonan yesterday on ABC’s This Week declare, with great seriousness (as she always declares everything), that Americans don’t like important issues being decided by a handful of judges in black robes. In the celebrant of Magic Dolphins, this bad argument has found its most appropriate supporter.

  13. Joe says:

    I think Greenhouse (read the book she co-authored on the lead-up to Roe with documents) et. al. is good and all.

    But, bottom line, it’s ok if the USSC does not rule as broadly as it did in Roe v. Wade. Let them strike down DOMA because it particularly bad to deny benefits when states already recognize the marriage even if the basic principle would apply in Alabama where same sex marriage is not protected in the first place. And, either strike down Prop 8 as Reinhardt did it or deny standing, giving CA the chance to recognize SSM pursuant to the district court’s reasoning. Loving v. Virginia took time to develop, so will SSM.

    We got got a conservative court and for good or ill, going it slower here is more their style.

  14. [...] one of Scott Lemieux’s commenters, “Just Dropping By” succinctly, and quite correctly, noted: To put it another way, opposing same-sex marriage once such [...]

  15. Bloix says:

    I commented on Michael’s backlash satire back then and I still believe what I wrote:

    “Funny. But wrong.

    “Segregation could not have been undone by the political process… The higher the percentage of African Americans in a state’s population, the more deeply entrenched the segregation. Alabama and South Carolina were well over 40% black in 1950 (the census before Brown). Alabama was one-third black in 1950, North Carolina over 25% black, Florida and Arkansas over 20% black. If African-Americans could have voted freely, alliances could have been made with the more liberal elements in these states and segregation would have been overturned. More accurately, it could never have been imposed.

    “But African-Americans could not vote. Disenfranchisement was enforced by law and by state-sponsored terror. Plessy– which was obviously wrongly decided to anyone not a racist– had to be overruled before Jim Crow could be dismantled.

    “By contrast, at the time of Roe in 1973 a movement to reform the abortion laws was underway in the states. Beginning in the late 1960’s, thirteen states modified their abortion laws to permit abortion in certain circumstances. Between 1970 and Roe, four states repealed their abortion laws entirely. There was clear evidence that abortion laws could be reformed via the political process.

    “No one can say for sure what would have happened without Roe. But it is there is an defensible argument to be made that Roe cut off a trend that was well underway. There is no basis to make a similar argument with respect to Brown.

    “An argument that Brooks does not make, but one that I believe, is that Roe killed feminism’s opportunity to become a majority movement. Far and away the most radicalizing event for a young woman before Roe was the need to deal with an unwanted pregnancy. After Roe, pregnancy became an issue of “privacy” between a woman and her doctor, a personal “choice,” with no political implications at all. The entire premise of feminism as a movement– “the personal is political”— vanished for the generation after Roe.

    “This was a terrible loss for progressives in America. Instead of a mass movement organizing around the right to an abortion, we have seen a mass movement to prohibit that right, while those who should be out in front politically — women and their partners who have made use of their right to an abortion — are embarrassed to discuss it in public.

    Posted by JR on 04/21 at 06:21 PM”

    • Malaclypse says:

      “An argument that Brooks does not make, but one that I believe, is that Roe killed feminism’s opportunity to become a majority movement. Far and away the most radicalizing event for a young woman before Roe was the need to deal with an unwanted pregnancy. After Roe, pregnancy became an issue of “privacy” between a woman and her doctor, a personal “choice,” with no political implications at all. The entire premise of feminism as a movement– “the personal is political”— vanished for the generation after Roe.

      You argument that forcing women to either 1) endure unwanted pregnancies, or 2) undergo risky back-alley abortions would be good for feminism? Because by this logic, allowing the paterfamilias to literally wield the power of death over household women would really make the personal political, and be fucking awesome for feminism.

      That, or your argument is really fucked up, like all heighten-the-contradictions arguments are.

      • Barry says:

        I posted a comment below, but let me summarize his argument:

        ‘Inexplicably and for no good reason, what had been happening forever would suddenly cause radical change’.

    • Lyanna says:

      The entire premise of feminism as a movement– “the personal is political”— vanished for the generation after Roe.

      This is an egregious misunderstanding of both feminism and of “the personal is political.”

    • Barry says:

      “Far and away the most radicalizing event for a young woman before Roe was the need to deal with an unwanted pregnancy. ”

      Which, I believe, had been going on for decades, at least, before Roe :)

  16. [...] is, however, an even worse nominally pro-choice argument against Roe. Which brings us to Bliox, who yesterday reminded us of his unfortunate response to Michael Berube’s classic decimation of David Brooks. After [...]

  17. [...] at Slate details, “Such argument has been forwarded in defense of everything from Slavery to bans on abortion. Apparently, all those protesters yelling invective at women entering abortion clinics just wish [...]

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