In Spite of Deference: Advocacy-Group Dialogue and the Changing Meaning of Roe V. Wade, 1973-1980

Abstract

In the legal academy and the Supreme Court, debate about Roe v. Wade has been structured by a particular historical account of the decision’s immediate impact on politics. The Court’s decision is argued to have surprised and angered a large segment of the public. Because of this outrage, citizens protesting the opinion argued that the Supreme Court had no authority to issue constitutional decisions on abortion. Popular groups contended that Roe itself had no constitutional force. Partly for these reasons, popular groups made demands for interpretive authority central to their reform agenda. This historical narrative about Roe powerfully shapes several current debates about the decision’s merits and impact. In discussion about Roe’s reasoning, popular resistance is argued to reflect the substantive shortcomings of the decision. A conventional historical account of Roe’s impact also structures debate about the Roe Court’s mode of decision-making. Critics of Roe use popular defiance as evidence that Roe decided too much too soon, while scholars supportive of the opinion view popular resistance to the Roe Court as constructive, a demand that constitutional law be democratically responsive. However, this Article shows that the conventional narrative of Roe’s impact is deeply flawed. For the most part, before 1980, antiabortion groups agreed that Roe had constitutional force unless an amendment could be passed to overrule it. Moreover, popular demands for interpretive authority were not central to antiabortion advocacy before 1980. Most attention went to statutes and constitutional-amendment proposals that at most modified the medical frame used in Roe, demanding recognition for the rights of fetuses as patients. It is true that debate between advocacy groups did eventually produce a popular interpretation of Roe that differed radically from the text of the original opinion, an interpretation focusing on women’s rights rather than those of physicians. By the late 1970s, this interpretation had won support from organizations on both sides of the debate. However, this form of popular involvement did not involve rejection of the Supreme Court’s’ authority. Instead, over time, often without explicitly trying to influence the Court, advocacy groups forced one another to adopt interpretations of Roe more closely resembling the one that is dominant today. The historical narrative shaping current discussion of abortion neglects these developments. To the extent that it relies on a flawed account of Roe’s history, contemporary debate should be reframed.