Historical Interpretation and Legal Advocacy: Rethinking the Webster Amicus Brief

Abstract

WHEN I WAS FIRST CONTACTED about the historians' amicus brief in the Webster case, I had two simultaneous reactions. The first was a strong desire to apply my own research on the history of sexuality in America to the effort to defend women's reproductive choices, for I believe that the right to choose abortion is critical to the advancement of gender equality. The second reaction was a small but nagging fear about the potential problems I might encounter in using historical research in a legal case, a fear that I attributed to the chilling effect that still lingers from the bitter controversy of the Sears case.' Given the polarization among women's historians in that instance, I wondered who might challenge or attempt to refute my historical views about abortion, and at what cost to me in terms of professional and personal energy. The former feeling heavily outweighed the latter, and I joined the effort to oppose Webster. Happily, my fear of intra-professional conflict proved unfounded. As far as I could tell, no historians came forth to support Webster or to attack the hundreds of historians who supported this amicus brief. (Given the outcome of the case, I wonder in retrospect about the usefulness of historical arguments and historians' briefs-are we in fact the kiss of death?) Whatever the answer to this larger, rhetorical question about the effect of historical testimony on legal advocacy, I want to emphasize that the unity of purpose in defending Roe v. Wade did not necessarily imply a