
[University of Georgia Press; 2024]
Politico published Samuel Alito’s draft opinion for Dobbs v. Jackson, the case that overturned Roe v. Wade, on May 3, 2022, twelve days before my law school commencement ceremony. Law school graduates are expected to begin preparation for the Bar Exam immediately after graduation—in our case, the Monday after a Saturday ceremony—and the class of 2022 from law schools everywhere had to do so unsure as to the status of a nearly fifty-year-old civil rights case that had become foundational to our legal education. On the day that the Dobbs decision became official, an administrator from our law school sent us an email with a link to the National Conference of Bar Examiners statement on the decision, which simply clarified that we would not be tested on the Court’s decisions from that summer.
Published two years later in August 2024, Roe v. Wade: Fifty Years After is a roundtable discussion and collection of essays edited by Rhae Lynn Barnes and Catherine Clinton that attempts to piece together the history of abortion rights and reproductive justice in the United States. Barnes is a professor of history at Princeton, where she focuses on racism, white supremacy, gender, and disability. She’s previously edited volumes on the history of books in the United States as well as the aftereffects of the COVID-19 pandemic. Clinton, on the other hand, is a professor of history at University of Texas San Antonio and one of the series editors for the History in the Headlines series from UGA Press, to which this most recent book belongs. Like Barnes, her research interests are African American history and gender history in the United States.
Their backgrounds are worth mentioning because it was immediately obvious to me that the introduction, penned by the editors, had not been written by legal scholars. (Further, I was a bit surprised by the inclusion of an Irish legal scholar in the roundtable discussion, Fiona de Londras, in a book about a uniquely American legal issue, but she was one of the only panelists who wasn’t surprised by the Dobbs decision, making her insight feel valuable.) Most of the contributors are academics, though there are poets and critics included, and many of the essays are pulled from popular publications like Slate, so even the academics featured are writing to a more general audience. This is something I usually find refreshing; part of the reason I decided not to practice law upon graduation was that I felt legal work and scholarship were too constrained by the Constitution and legal history rather than social movements that precede and facilitate legislation. Historians like Barnes and Clinton are able to give us a fuller picture of the social, medical, and occasionally legal developments that constitute historical progress. For instance, the introduction highlighted how later generations of feminists developed a “significant critique of the women’s rights movements of an earlier generation, particularly among those who regarded the Roe ruling as a penultimate victory.”
That the book had been “already in the planning stages when the Dobbs decision was handed down,” creates an ideological and historical tension that persists throughout the roundtable and the essays that accompany it. As can be the case in any co-authored historical text, there also seems to be some affective inconsistency between authors who continue to revere the Roe decision and those who viewed it as a partial victory, at best. While the introduction is careful to introduce the critique of Roe that it identifies as having emerged in the 1990s, the opening paragraph unambiguously describes the case as “a historic victory amidst the burgeoning Women’s Rights Movement [that] promised a future where women could control their own bodies.” Intentionally or not, the editors here reveal themselves to be aligned against the faction of feminists who viewed Roe with skepticism.
The strengths of this book are when this ideological tension feels productive. For example, the second essay, “Reproductive Justice, Not Just Rights” by Dorothy Roberts, critiques how “the rhetoric of ‘choice’ has privileged predominantly white middle-class women who have the ability to choose from reproductive options that are unavailable to poor and low-income women, especially women of color.” Encountering this perspective so early on in this collection provides a foundation for reflecting on the language of the essays that both precede and follow Roberts’s piece, most of which were published well after Roberts’s essay appeared in Dissent in 2015. Roberts’s essay also includes an extended look at some of the social movements and organizations like Sister Song and The March for Women’s Lives that have been combating the rabid “pro-life” movement that popped up even before Roe.
The essays collected also do a good job describing the various movements for reproductive justice that women have been engaging in since the country’s founding. A later essay by Lauren Thompson, originally published in The Conversation in 2022, addresses how amidst the fight for legalizing abortion, some women’s movements raised concerns over legislating abortion due to the fear that “men would then use these legal freedoms to further abuse and control women.” The early feminist conception of “voluntary motherhood,” as it was called, is nearly identical to the tenets of the reproductive justice movement that emerged in the 90s. Another essay, which Heather Cox Richardson published in her Letters from An American series in 2023, demonstrates that mainstream opposition to reproductive justice emerged before Roe, as a result of Richard Nixon’s campaign for reelection. “In 1970, Nixon had directed U.S. military hospitals to perform abortions regardless of state law,” she shares, “but in 1971, using Catholic language, he reversed course to split the Democrats, citing his personal belief ‘in the sanctity of human life.’”
The essays also cement the ways in which opposition to reproductive justice has always been an opposition to bodily autonomy. In a 2020 essay for ACLU Online Journal, Michelle Goodwin notes how abortion was legal in the United States prior to the Civil War, primarily practiced by midwives. Yet once those women were free to compete with white men in the free market following the abolition of slavery, (white) male gynecologists led a smear campaign against midwives, shaping policies adopted by the American Medical Association, which had been founded in 1847 and was exclusive to white males. Elsewhere, Jennifer Morgan notes that Clarence Thomas’s concurrence in Dobbs takes aim not just at abortion access, but “[b]irth control, state support for single mothers, the rights of the incarcerated, same sex marriage . . .” These essays demonstrate that Roe is about far more than the rights of individual states to legislate abortion.
While these varied essays taught me a lot about reproductive justice, I do wish the collection had included just a little bit more of what I had learned in law school about Roe, particularly the line of cases on which it rested. While Morgan’s essay, and others in the book, discuss the importance of the due process clause of the 14th Amendment in the context of Reconstruction, the book falls short of explaining its precise legal significance and how it relates to Roe. As opposed to the equal protection clause, on which the right to interracial marriage is based, the due process clause does not prohibit the government from infringing on one’s Constitutional rights. It simply requires the government to adhere to certain procedures (due process) before legislating rights away. Ruth Bader Ginsburg was a vocal proponent of this critique of Roe, though it’s hardly mentioned during the roundtable discussion, in which Johanna Schoenn mentions that Ginsburg would have preferred a different abortion case to reach the Supreme Court, “because that case was grounded in equal rights and not privacy.” There is also no mention of Ginsburg’s refusal to retire and the role that played in creating the conservative majority on the Court.
Though Cox Richardson’s essay examines how the language of Roe left an undue amount of authority in doctors, usually white men, the lack of comprehensive legal history in this book obscures just how vulnerable Roe had been from the start. There are statistics to show how popular abortion has been and remains despite the Supreme Court, along with statistics that indicate that legal abortions are safer, but no discussion of how the Court is not, in any meaningful way, accountable to the American public. Mary Zeigler, in her 2022 essay, “The Abortion Fight has Never Been About just Roe v. Wade” is most helpful in analyzing the full legal context of Roe in discussing how the Reagan administration viewed the Court’s 70s civil rights decisions, appointing Antonin Scalia to reverse the damage, but even her essay falls short of addressing Scalia’s influence on the Court that overturned Roe.
Learning the case in law school made clear how much of an anomaly it is. Law school also taught us that anomalous, precedent-setting cases are especially vulnerable to being overturned for their novelty. Griswold v. Connecticut, one of the cases that served as a legal precedent for Roe, is mentioned in passing, but the book neglects to mention how it had cobbled together a right to privacy through a reading of the First, Third, Fourth, and Ninth Amendments that was limited to couples in their marital relations. Roe featured a similarly novel right to privacy, argued along the same lines in the lower courts, but based it on a new reading of the Fourteenth Amendment and was the first case to affirm that there was a Constitutional right to privacy. This new understanding of the Fourteenth Amendment was central to the Court’s decision in Lawrence v. Texas, a 2003 case that prohibited state laws against sodomy, and Obergefell v. Hodges, the 2015 case that forbids states from passing laws against same sex marriage.
For conservative Justices, the history and connections between these cases is clear. In his Dobbs concurrence, Thomas specifically lists Griswold, Lawrence, and Obergefell as cases that must be reconsidered in light of the Court’s decision in Dobbs. Neither Lawrence nor Obergefell appear at any point in Clinton and Barnes’s book though, an editorial decision that seems at odds with the intersectional approach to reproductive justice. These are the points at which some of the tensions in the book feel less productive. Is this a history of reproductive justice in the United States, a book about a specific Supreme Court decision, or a collection of essays in favor of more inclusive conceptions of bodily autonomy?
Some of the historians, like Alicia Gutierrez-Romine in the roundtable discussion, are aware of some of the contradictions underlying this project. Describing her difficulty in finding quantitative data on abortions in the early United States, she says, “I was using coroners’ records. I was using newspaper documents and court records. So had these women had successful and safe abortions, they would have been invisible from the historical record.” Some of the essays do a good job mining what little record exists for powerful anecdotes about women exercising bodily autonomy even under conditions of chattel slavery, but this meticulous research is undermined by statements like “It might be argued that the right to privacy is a modern concern,” which do not seem to appreciate just how new the right to privacy is, legally speaking. This is not something that “might be argued”—it is, objectively speaking, an extremely modern concern, which was legally vulnerable precisely because of the lack of historical rights to privacy. Reproducing the full texts of Roe or Dobbs in the book would have allowed readers to discover this for themselves, but this fifty year review only features excerpted opinions in the appendix.
The book’s historical insights are valuable nonetheless, particularly for how they illuminate the ways in which institutional intervention from the courts, legislatures, and medical associations have tended to limit the freedoms they grant oppressed groups, when they can be bothered to grant rights at all. That this was foreseeable even to suffragists like Sojourner Truth in the 1800s suggests we should pay special attention to essays like Roberts’s, which urge a more inclusive vision of reproductive justice and champion organizing work external to the oppressive institutions that colluded to produce Roe and Dobbs. While the book tends to stop short of criticizing the American legal system as a whole, the inclusion of essays that are more skeptical of legal process is, ultimately, a good reflection of how complicated half of a century of Constitutionally protected abortion access was. The historical essays, especially those that focus on social and popular movements outside of the court, can help serve as a guide for how people can work to protect themselves and their rights in our uncertain legal future.
Colin Lavery is a writer based in Chicago. Recent awards include a Master’s Thesis prize from the Karla Scherer Center for American Studies and the Chicago Kent Justice Foundation Fellowship. His writing focuses on contemporary American literature, historical materialism, and speculative fiction.
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