Why Roe Was Not Counterproductive: A Reply

Cynthia Gorney’s repetition of contrarian-wisdom-so-frequently-offered-it’s-conventional-wisdom reminds me that I owe a reply to Nathan Newman. Nathan offers a powerful response to my claim that social change produced through litigation doesn’t produce more opposition than commensurate change achieved through other means. Before I respond, I want to disentangle the two claims Newman makes, one of which I more or less agree with. Nathan is, I think, right to emphasize that the courts have not often been agents of progressive change or reliable protections of minority rights. (I do tend to disagree with scholars like Newman and Gerald Rosenberg about the extent to which progressive litigators understand this.) From a strategic standpoint, however, this insight has limits. Judicial review isn’t going away, so whether it is good or bad for progressive politics in general is largely beside the point for progressive groups who face limited options. In itself, even if true this claim doesn’t suggest that unilateral disarmament is desirable. The argument about countermobilization is important because it’s more immediately relevant; if even putative victories end up being counterproductive, then obviously progressives would be wise to abandon it. On this limited but crucial point, however, I continue to disagree. (I, of course, do not mean to imply that Newman agrees with all Gorney’s specific claim or vice versa.)

• What’s remarkable about Gorney’s piece is that she suggests that pro-choicers might be pleasantly surprised by the outcome of overturning Roe, when her data suggests the opposite conclusion, unless you think that pro-choicers consider the state of California likely to pass an abortion law. As Gorney notes, 17 states would immediately have abortion bans in place if Roe were overturned, and roughly 20 additional states would be at a high risk for criminalization (although it might be possible to overturn existing bans in the 3 New England states and two Upper Midwest states.) How an outcome that would change the status quo from abortion being legal in all 50 states to being illegal in anywhere from 15 to 35 could be seen as anything but a crushing defeat for women’s reproductive rights is beyond me. We can quibble about precisely how bad the outcome would be, but this fact places a rather high burden on those who think that jettisoning Roe would be better for abortion rights. (And, of course, framing it in terms of the present is being generous to critics of Roe; had the Supreme Court not initially intervened, the status quo would almost certainly be worse.)

• It is also incorrect, as Gorney implies, to assume that overturning Roe will return the issue to the states. We know that Congress is willing to pass abortion legislation, and there is no reason to believe that national lobbying will go away (indeed, it may well increase.) It is true that Congress, like many states, would be very unlikely to pass a categorical ban. But, as I’ve explained at interminable length, the distinction in practice between nearly-outright bans and delegations to medical review boards is one without a difference; the only difference is whether affluent women get legal or grey market abortions. Under either legal regime, the abortion of access of poor women, women of color, and women in rural areas would be severely restricted.

• Nathan argues that “[t]he strongest argument against Roe’s baleful effect is the argument that abortion liberalization had stalled in the year or two before Roe due to religious countermobilization that had preceded Roe. Now, this is a real argument, but no one argues that legislative changes don’t lead to resistance by opponents and occasional setbacks. After the massive liberalization of abortion laws in the late 60s and early 70s, a year or two pause in abortion rights advances is hardly a strong argument for the permanent strength of the religious right before Roe.” I don’t believe that my argument is a strawman; Gorney is merely the most recent example of an abortion scholar who believes that Roe “created” the pro-life movement. But, more importantly, once one has conceded that the liberalization at the state level created a significant backlash, there’s just not much of an argument left. Nathan argues that we shouldn’t have given up because of a bad year or two. But to turn that around: why should we give up in the face of a backlash against Roe that has succeeded neither in getting the decision overturned nor changing public opinion about abortion? Unless one simply has an a priorinormative opposition to judicial policy-making, that’s a tough case to make.

• The key argument at the heart of our theoretical disagreement, I think, is Nathan’s claim that “[t]he case against Roe is that the result of judicial activism was a particularly toxic form of counter-reaction that fused normal political disagreement into a mode of rightwing conspiracy thinking that fused social conservatives into a much broader New Right alliance.” These kinds of qualitative arguments are hard to prove either way, and Nathan may be right, but I strongly believe that this is incorrect. First of all, I just don’t think that the many scholarly proponents of this thesis have made the case; abortion rhetoric was quite toxic prior to 1973. More importantly, I think that the anti-elitist rhetoric of the New Right can (and is) deployed against any and all institutions they perceive as being against them. Allow me to return to Romer v. Evans. Again, this case arose out of an Amendment that resulted as a response to the protection of gay rights by democratically elected city councils. In his dissent, Scalia fulminated against the legislative success of a “geographically concentrated and politically powerful minority.” Affirmative action is another classic example; conservatives are able to mine fury against courts who refuse to overturn the policies of democratically accountable officials. It seems to me that arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capitol.” Cultural reactionaries, angry at the disappearance of a past that in many cases never existed, can be a bottomless well of anger and resentment, and as the mobilization against state liberalization of abortion laws (as well as any number of other issues) makes clear. I simply don’t believe that most conservative activists have a principled democratic theory that will cause them to react more positively to political losses that don’t occur in the courts.

• Finally, a note on the comparative cases. On a technical point, judicial decisions in Canada can actually be overturned by a simple majority. More importantly, however, the override clause has become a conventional dead letter. It has never been used in a major constitutional case outside of Quebec (which, because secessionist governments would apply it to all legislation, was a unique case.) It is no more a significant check on the courts that Congress’ Article III powers, which enable it to pack the courts and strip appellate jurisdiction from the courts. Courts in Canada are at least as powerful as those in the United States. While no comparative case is perfect, of course, I do believe that the Canadian case strongly suggests that there is nothing about litigation that is inherently more divisive than other forms of political action.

• In terms of the political effects, I’ve written about this before. All I’ll add is that I completely disagree with the claim that Roe demobilized the choice movement. As I think I’ve written elsewhere, abortion was the one issue that Clinton never sold out on–what does that tell you? Indeed, I think it would be more plausible to argue that Roe has caused too much emphasis on the abortion issue within progressive politics. I think that it’s wrong to see litigation versus other forms of political mobilization as a zero-sum game, and the evidence against this claim in the legal mobilization literature is, I think, quite overwhelming.

None of this, of course, undermines Nathan’s larger point about the potentially bad effects of judicial review. The questions of strategy are very complex, and I hope that interested bloggers and activists will be able to keep thrashing them out. With respect to Roe, however, I think that–regardless of one’s normative opposition to judicial review–evidence that it has been counterproductive remains very weak.