This term, the Supreme Court will hear the first significant challenge to abortion regulation in almost a decade. In Whole Woman’s Health v. Cole, it will evaluate the constitutionality of a Texas law that would dramatically reduce access to abortion. In their briefs and in public debate, the opposing camps in the abortion wars are assembling along familiar lines. Abortion rights advocates are asking the Court to invalidate the statute’s onerous restrictions on abortion providers because they impinge on women’s “fundamental liberty” to terminate a pregnancy prior to viability. Meanwhile, defenders of the Texas law are urging judicial deference to the state’s asserted interest in protecting women’s health and safety.

Readers who regard these established positions as inevitable outcrops of the Supreme Court’s 1973 decision in Roe v. Wade should reconsider their views in light of Mary Ziegler’s new book, After Roe: The Lost History of the Abortion Debate. As Ziegler deftly demonstrates, the notion that anti-abortion groups greeted Roe with an outcry for judicial restraint is a post hoc invention. “In the decade after the ruling, pro-lifers did not blame the Roe Court for taking the abortion issue away from the American people,” Ziegler explains. On the contrary, “most leaders of the antiabortion movement believed that the Court had committed the opposite error, failing to protect a constitutional right to life from the uncertainties of democratic politics” (xiii).

Ziegler’s book is packed with corrections and clarifications of this kind. More than forty years after Roe v. Wade was handed down, the Court’s decision remains a focal point in the culture wars. It has also played an outsized role in academic debate. It has fueled critiques of constitutional litigation as a social movement strategy and cast doubt on judicial capacity to protect counter-majoritarian values or stimulate social change. According to Ziegler, scholars engaged in normative and theoretical projects have accepted assumptions about Roe and its aftermath that are often incomplete and sometimes incorrect. As a result, “we have attributed too much of what followed to the Supreme Court’s decision” (xii).

Read more at The New Rambler Review