Vol. 31 No. 2 (February 2021) pp. 53-56ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE PRESENT, by Mary Ziegler. New York, NY: Cambridge University Press, 2020. 326pp. Cloth. $89.99. ISBN: 9781108498289. Paper. $29.99. ISBN: 9781108735599. eBook. $24.00. ISBN: 9781108582599.
Reviewed by Helena Silverstein, Professor of Government and Law, Lafayette College. Email: silversh@lafayette.edu.
The conflict over abortion in the United States is often characterized, as Laurence Tribe put it, as a clash of absolutes, pitting right against right in a contest that allows little room for compromise (Tribe 1992, p. 3). Mary Ziegler's book, ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE PRESENT, complicates this depiction by offering a compelling and illuminating historical account of the law and politics of abortion. Ziegler's rich and readable analysis is exhaustive (but not exhausting) and will be welcome by students and scholars alike.
Ziegler trains her attention on how the abortion fight has played out since the Supreme Court ruled in 1973 that the Constitution protects a woman's right to terminate her pregnancy. Through this telling, Ziegler presents her main argument: since ROE V. WADE was decided, the terms of the abortion debate have changed considerably and in ways that often go unnoticed. In particular, while the clash over constitutional rights claims endures, the conflict has increasingly been waged in policy-based arguments about the costs and benefits of abortion. "Over time, pro-life and pro-choice activists gave radically different descriptions of the basic facts about the procedure. The conflict about abortion goes far deeper than the idea of two irreconcilable rights that became prominent in constitutional litigation" (p. 6).
The expansion of policy-based arguments lays bare competing perspectives about the consequences to women, family, and society of regulating or criminalizing abortion. In disputes over abortion funding, mandated spousal and parental involvement, informed consent provisions, partial-birth abortion bans, fetal pain regulations, access to abortion, and more, the attention of both abortion opponents and abortion-rights advocates shifted to include deep disagreements over the real-word consequences of abortion. This shift has not mitigated conflict. To the contrary, it has exacerbated polarization.
Ziegler presents this argument by way of a thorough and detailed history, organized chronologically. After presenting the overview of her argument in the Introduction, the book proceeds in chapters that cover the years from ROE through 2019. Chapter 1 goes back a bit further, providing a longer historical lens of the lead up to ROE V. WADE before discussing the ruling itself. Chapter 2 treats the period immediately following ROE and examines, among other things, the important effort to ban public funding of abortion. Chapter 3 covers most of the years of the Reagan presidency, which included a changing of the guard on the Supreme Court, alignment of the pro-life movement with the Republican party, and a move among abortion opponents away from fighting for a constitutional antiabortion amendment to efforts to undo ROE. Those antiabortion efforts—[*54] sometimes seeking direct reversal and in other instances taking a more incremental approach—appealed to asserted harms and costs of abortion. Chapter 4 takes the reader from 1987 through PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, the 1992 decision that did not, contrary to expectations, directly overturn ROE. Chapter 4 attends to policy debates about the consequences of abortion for families and equality, as well as the growing movement to block access to abortion by physically blocking access to clinics. It also underscores how the ruling in CASEY "put the costs and benefits of both abortion and laws regulating it at the center of constitutional discourse…. The Court's willingness to preserve abortion-rights, it seemed, depended on evidence that abortion helped women achieve more equal citizenship" (p. 119).
Chapters 5 through 7 chronicle the years from the mid-1990s to 2019. Chapter 5 takes up the aftermath of CASEY and the early years of the Clinton administration, focusing on the efforts of abortion-rights proponents to tie reproductive rights to health care and, for women of color, to reproductive justice. Chapter 6 examines partial-birth abortion bans and litigation, covering 1995 to 2007. Importantly, this period includes increasing divides over what counts as scientific fact and evidence and who counts as an expert positioned to makes such judgments. Chapter 7 surveys abortion during Obama's presidency and most of Trump's term, exploring the interplay between abortion and the Affordable Care Act, and between abortion rights and religious liberty claims. The discussion also takes up the 2016 decision in WHOLE WOMAN’S HEALTH V. HELLERSTEDT as well as the changing composition of the Court brought on by Justice Scalia's death and Justice Kennedy's retirement. In a brief concluding chapter, Ziegler discusses the growth in polarization over abortion, arguing that whether or not ROE is overturned, conflict over abortion—both rights-based and policy-based—is sure to continue.
Though organized chronologically, the account presented does not underplay important themes or the broader context in which the abortion debate has played out. For example, Ziegler in Chapter 2's focus on abortion funding situates that analysis in broader themes about the politics of welfare and race. Chapter 4's analysis of the lead up to and decision in CASEY emphasizes debates about the role of family. Chapter 7 is framed in terms of the broader debate over health care and the reach of religious liberty.
Ziegler thus navigates the reader through modern abortion history by traversing legal, political, and social terrains. That path takes the reader through the courts and into many of the key Supreme Court rulings that have shaped abortion rights. But this is not simply a history of Supreme Court decisions. Ziegler's account emphasizes the pivotal roles played by movement organizations and activists; it underscores the importance of electoral and legislative politics; and it contextualizes the abortion fight in broader battles over welfare, health, race, gender, family, marriage, religion, and the role of government. Ziegler also highlights the legal and political strategies chosen by movement organizations and activists. Ziegler's analysis is nuanced, noting key moments when certain accidents and unforeseen turns, rather than strategic choices, shaped the legal and political trajectory of the abortion conflict.
Throughout these chapters, Ziegler chronicles the enduring rights-based arguments as well as the emergent policy-based arguments. In doing so, she points to [*55] instances when the increase of policy-based arguments generated internal conflicts, especially within the pro-life movement. A shift in emphasis towards the allegedly harmful consequences of abortion for women, their families, and society, along with a shift toward more incremental attacks on legal abortion, created rifts among antiabortion activists. For absolutists in the anti-abortion community, an incremental strategy—or chipping away at ROE V. WADE—problematically diverted attention away from the rights of the unborn.
From the outset of the book and carried through to the end, Ziegler frames the account by examining the arguments presented on both sides of the abortion divide (and often the internal arguments within each camp). Her examination shows how those arguments have changed over the years. These changes, though, have not decreased the divide. "If anything, as opposing movements delved into the costs and benefits of abortion, those on either side found new sources of disagreement" (p. 209). Disputing what amounts to a cost or benefit of abortion, who can measure them, and which experts can be trusted, "pro-choice and pro-life activists increasingly questioned one another's honesty and competence" (p. 210).
By and large, Ziegler is even-handed in presenting the opposing positions and does not weigh in on the merits or veracity of the competing arguments. In Ziegler's view,
By taking seriously claims about the consequences of abortion, we can gain perspective on how legal and political conversations have changed in the decades since 1973. We can better understand why clashing activists believe that women need (or should not have) a right to end pregnancy. We can gain a fuller perspective on the state-by-state battles that would begin if the Court overturned Roe and the cases following it. And we can recognize that the abortion debate reflects a larger set of often unnoticed social and cultural transformations. (p. 3)
There are a handful of moments in the account when Ziegler's laudatory efforts at even-handedness may leave the impression of a false balance. For example, in analyzing the partial-birth abortion conflict, she concludes that the abortion debate "reflected creeping doubt about whether any authority in America reliably told the truth" and that "opposing activists saw one another not only as wrong but as fundamentally dishonest" (p. 180). These conclusions are accurate and based on a fair assessment that the "opposing sides of the debate disagreed about who counted as an expert and what kind of evidence deserved attention" (p. 180). Ziegler rightly explains that abortion opponents formed their own expert organizations, whereas abortion rights advocates relied on the established expertise of groups like the American Cancer Society and the American College of Obstetricians and Gynecologists. However, she steers mostly clear of the relative merits of these competing experts. It may be reasonable to leave it to the reader to evaluate these merits. But repeatedly stressing that both sides "contested what made scientific claims about the costs and benefits of abortion both reliable and relevant" (p. 180) without evaluating the factual merits of those scientific claims may convey that both sides are equally warranted in viewing the other side as dishonest and, perhaps, equally responsible for the failure to find common ground. [*56]
Ziegler ends this historical account by noting the "ugliness of the conflict" (p. 211) and the lack of easy solutions for generating more productive and less polarizing debate. She argues—rightly, in my view—that the Supreme Court and the decision to treat abortion as a constitutional right should not be viewed as the primary causes of the ugly state of the debate.
The final paragraph offers the following call by Ziegler: "The time has come to reconsider why we have arrived at such an impasse" (p. 212). Ziegler's account sheds general light on this, suggesting that the impasse is not just about different stances on rights, but also about different assessments of abortion's costs and benefits that are informed by divergent views about policy, facts, science, governance, family, equality, race, welfare, gender, religion, and more. That broad light is illuminating, insightful, and important, even if it does not offer an answer for how to move beyond intractable polarization.
CASES:
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, 505 U.S. 833 (1992).
ROE V. WADE, 410 U.S. 113 (1973).
WHOLE WOMAN’S HEALTH V. HELLERSTEDT, 579 U.S. __ (2016).
REFERENCES:
Tribe, Laurence H. 1992. ABORTION: THE CLASH OF ABSOLUTES. New York, NY: Norton.
© Copyright 2021 by author, Helena Silverstein
