Greenhouse, Siegel on 'Before Roe v. Wade'

Before Roe v. Wade
Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling
Linda Greenhouse and Reva B. Siegel
July 1, 2010
ACSblog recently caught up with Linda Greenhouse and Reva B. Siegel to ask them about their new book, "Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court Ruling." Linda Greenhouse is a Pulitzer-Prize-winning journalist and former New York Times Supreme Court correspondent and author of the biography "Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey." Greenhouse is a member of the ACS Board of Directors. Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale University and coeditor of the "The Constitution in 2020" and "Processes of Constitutional Decisionmaking." Siegel is faculty adviser to the ACS Chapter at Yale Law School.

ACSblog: What were you trying to capture with this book? Why the focus on the pre-Roe period?

Greenhouse and Siegel: A C-Span poll a few weeks ago found that of all those people who said they could name a Supreme Court decision, three-quarters named Roe v. Wade -- the runner-up, Brown v. Board of Education, was volunteered by only 9 percent of the respondents. After decades of conflict, Roe has come to stand for Supreme Court decisions. Yet few of us know much about the forces that led to Roe, or to conflict over the decision. The book explores how the abortion debate began-and acquired the partisan shape it has today.

The debates prompting liberalization of abortion in the 1960s started out looking little like our own. The public health community challenged bans on abortion as discriminating between the rich and the poor. It was not until the late 1960s that feminists began to argue that restrictions on abortion violated the constitutional rights of women.

It's natural to assume that opposition to abortion before Roe looked much as it does now - that conservative religious denominations were solidly opposed to decriminalizing abortion, for example, and that the Republican Party was identified with the anti-abortion cause. Yet neither of those assumptions is correct, as we demonstrate in the book. At the time the Court decided Roe, the Catholic church was isolated in its categorical opposition to abortion, while the evangelical Protestant denominations were open to "therapeutic" abortion reform; and considerably more Republicans than Democrats, although a majority of each, favored leaving the abortion decision up to a woman and her doctor without government involvement.

The documents we collected also show that, contrary to the commonly expressed view that it was the Supreme Court and its decision that unleashed a "backlash" against abortion reform, a vigorous counter-movement was forming well before Roe. In the late 1960s, as public support for liberalization surged, the Catholic Church helped organize an antiabortion movement to oppose liberalization in every state legislature and court considering abortion laws. Strategists for President Nixon's 1972 re-election then decided to denounce "permissive" abortion laws to attract Catholics from their longtime affiliation with the Democratic Party and court the support of a "silent majority." As the book shows, before the Court decided Roe, conservative architects of the "New Right" had already decided to use opposition to abortion as part of a strategy for party realignment that would come to fruition with the election of Ronald Reagan in 1980.

We each brought different perspectives to this project. As a law professor, Reva is interested in the ways that political conflict shapes constitutional development. In her work on democratic constitutionalism, Reva has analyzed social movement conflict and constitutional change in the areas of race, guns, and abortion. And Linda had been writing about abortion since her very earliest years as a journalist. In fact, one of the documents we reprint in the book is a magazine article she wrote for the New York Times that appeared in the magazine under the title: "Constitutional Question: Is There a Right to Abortion?" The date on the article was January 25, 1970.

Both of us, of course, interact with students on a daily basis, and it was clear to us that the current generation knows little about the period before Roe. So that was one motivation. Another was to engage the public interested in the abortion debate, from an unfamiliar perspective. We both learned a lot ourselves in the course of preparing the book, so it's clear that even people who lived through the period will find surprises here. It's a wonderfully rich period with much history yet to be written. We are hoping to encourage other scholars to focus "before Roe," as well.

ACSblog: This is a book of original source documents. Which of these did you find most revealing? [See the book's table of contents (pdf) for the kind of documents included in the authors' work.]

Greenhouse and Siegel: That's right; the book is neither a case study nor a conventional narrative. It's a source book, a collection of original documents - letters, legislative testimony, legal briefs, advocacy materials, and journalism of the period -more than 60 documents in all. We have annotated each document to place each one in context, and have added some analytical essays, but the basic point is to enable readers to encounter these sources for themselves. It's impossible to say which the "most" is revealing, because each document reveals a different piece of the picture.

For example, early in the book we include a first-person narrative by Sherri Chessen Finkbine, who in 1962 realized that early in a much-desired pregnancy, a drug she had been taking contained thalidomide, a substance little known in the United States that was causing babies all over Europe to be born without arms or legs. There was no place in the United States where she could get a legal abortion, and she and her husband had to go to Sweden to terminate the pregnancy. This highly publicized incident - it made the cover of Life Magazine - became the occasion for the first open national conversation about the wisdom of the 19th century laws then in place in every state that made abortion a crime. So this document is highly revealing of the world before Roe and of how a legal regime that had existed without challenge for many decades began to be placed under a public spotlight.

One of our favorite documents is a pamphlet from 1970 entitled "Sex and the Yale Student," written by a student committee under the guidance of a gynecologist at Yale's student health service, Dr. Philip M. Sarrel. The impetus for this pamphlet was the arrival that year of coeducation at Yale. While abortion was illegal in Connecticut at the time, this pamphlet offers strikingly explicit advice to students on how to handle an unwanted pregnancy. This document reveals the rapidly changing norms of sexual behavior - which of course were also part of the impetus for challenging the old laws - as well as the fact that well-off and well-connected women had options available to them that others did not.

We print an extensive excerpt from Handbook on Abortion, by J.C. Willke, M.D. and Barbara Willke. Dr. Willke, a leading strategist of the Right to Life movement, and his wife self-published this little book in 1971. It went on to sell millions of copies and became the Bible of the movement. Later editions are still in wide circulation but we are willing to bet that few in the abortion-rights camp have ever heard of it, let alone read it. Its explicitly secular arguments against legalizing abortion show how opponents of reform were reaching beyond their base in the Catholic Church to persuade, as Dr. Willke put it, others in "our pluralistic society."

From the Nixon Library, we have a document labeled by its author, Patrick Buchanan, as the "assault book," a strategy document outlining how the abortion issue could be used to attack George McGovern, the Democratic candidate in the 1972 election, in order to draw Catholic voters away from the Democrats. That McGovern in fact offered only tepid support for abortion rights, to the frustration of feminists at the Democratic National Convention, did not keep the Nixon campaign from successfully labeling the Democratic nominee the "triple-A" candidate - for "amnesty," "acid," and "abortion." This document reveals that it did not take the Supreme Court to make abortion an issue of high political salience and, eventually, a tool of party realignment.

ACSblog: Was it difficult acquiring some of the documents? What were the biggest challenges?

Greenhouse and Siegel: The Schlesinger Library on the History of Women in America, at the Radcliffe Institute for Advanced Study at Harvard, houses a collection of great depth, including the papers of Betty Friedan, NARAL, and lesser-known organizations that no longer exist. The Schlesinger's files from two such groups, the Society for Humane Abortion and the Association for the Study of Abortion, provided a number of documents and pointed us to others.

We did our best to reconstruct documents from an important pre-Roe case, Abele v. Markle, in which a number of Yale law students had participated. Abele struck down Connecticut's 19th century abortion ban, citing sex equality concerns decades earlier than the Supreme Court would. Many of the Abele litigation documents appear to have been lost or destroyed, but we were able to recover movement documents from an historian of the case, and from the basements of Yale alumni who had participated in it. Records of a state legislative hearing preserved the arguments of antiabortion advocates who swiftly reenacted Connecticut's abortion ban (which was then struck down in a case that was on appeal at the time of Roe). And Reva actually remembered a later edition of the "Sex at Yale" pamphlet from her days as a Yale undergraduate. The fabulous research librarian we worked with, Camilla Tubbs was able to dig it out for us.

And of course Justice Harry A. Blackmun's papers at the Library of Congress provided a trove of material. We weren't interested in reconstructing a detailed litigation history of Roe. But Justice Blackmun's Roe files contained several of the documents that we ended up including, to illustrate knowledge of the day that the justices and the public shared. Among these documents was a widely publicized report of George Gallup's 1972 poll results, showing a strong majority of the public in favor of decriminalizing abortion, and an article by Dr. Jane E. Hodgson, a St. Paul, Minn. obstetrician and gynecologist who defied Minnesota's law in 1970 by performing an abortion for a patient who had contracted German measles early in pregnancy. We also include a medical journal article by an acquaintance of Justice Blackmun's who strongly opposed abortion.

We were determined to provide a fair sample of anti-abortion material, and that proved a greater challenge. Americans United for Life, an important organization, declined to cooperate with us. So getting Dr. Willke's permission to excerpt his Handbook on Abortion was crucial. We also had access to legislative testimony, briefs, and other documents in the public domain. And the officials of various religious denominations proved willing to authorize reproductions of their public positions on abortion in the era of Roe, allowing us to show our readers how differently the various denominations viewed the liberalization of abortion.

Much of the material we used is copyrighted, so one challenge was obtaining the rights and another challenge was paying for them. There is no free lunch in the land of copyright. We also faced the problem of material that appeared in publications that are now defunct, or by copyright-owning authors whom we couldn't track down. To reflect the diverse views of African Americans we sought to print an excerpt from Shirley Chisholm's memoir and an article by Dick Gregory that had appeared in Ebony Magazine, but were unable to obtain permissions; we found other voices but continue to regret these particular omissions. Our oddest refusal came from Playboy. We wanted to print a letter that had appeared, with the writer's name withheld, in the Playboy Forum, a feature in the magazine. They told us that the magazine didn't own the copyright and that we would have to contact the author. But the author's name was withheld, we objected. Well, then you can't print it, Playboy said.

ACSblog: Who was your intended audience and who do you expect to benefit most from the book?

Greenhouse and Siegel: It's a book for a lay audience. We aimed to make the book accessible to college students, for use in a variety of courses. The book should also be of interest to law students. It doesn't offer a doctrinal history of privacy law or recapitulate ground in constitutional law case books. But it does offer a rich new perspective on the arguments for and against abortion rights-at a time when the argument for "choice" was an argument for change, and the antiabortion argument was a defense of the status quo.

We expect the book to be of interest to law students, to historians and theorists of backlash-and to any reader who wants a fresh perspective on abortion. Its exploration of the ways political conflict shapes constitutional interpretation is relevant to many questions now in debate-whether immigration, affirmative action or same sex marriage.

ACSblog: In this day and age, very little is written on the subject of abortion that is not contentious, how did you manage to avoid such conflict?

Greenhouse and Siegel: Our effort was to present, through original source documents, as complete a picture as we could of what various groups were saying and doing about abortion during the period the led up to Roe. Although we are both pro-choice, as we acknowledge in the introduction, our goal was not to advocate but to explain - or, more precisely, to empower readers to travel back to the pre-Roe days and come to their own conclusions. The documents we collected will speak to different readers in different ways, and that's fine with us. The only way in which we are trying to change minds is to dispel historical inaccuracies and misunderstandings about what actually occurred.