'Roe V. Wade' Turns 40, But Abortion Debate Is Even Older

Jan 22, 2013
Originally published on January 23, 2013 3:57 pm

Jan. 22, 2013, marks the 40th anniversary of Roe v. Wade, the landmark Supreme Court decision that legalized abortion nationwide.

But the conventional wisdom that the court's 7-2 decision marked the beginning of a contentious battle that still rages today is not the case, according to those on both sides of the dispute.

Michael Taylor, executive director of the National Committee for a Human Life Amendment, has been involved in the anti-abortion effort since the late 1960s. He says the present fight dates back to the 1950s, when some groups "began urging the overturn or modification of existing laws" banning abortion.

Linda Greenhouse agrees. "It's important to understand how we got to where we are, and not to misunderstand the various lessons of Roe," says Greenhouse, who spent 30 years covering the Supreme Court for the New York Times and now lectures at Yale Law School.

But, not surprisingly, not everyone agrees on what those lessons are.

Abortion foes like Taylor say the court's Roe decision, by nationalizing the debate, set the nation on its current path toward making the issue a seemingly intractable one.

"I'm not sure if you'd have as much black and white in politics as you do today if the court had not taken this very aggressive position," he says. "As another scholar said, the court has made legislators and citizens mute on this issue."

But Greenhouse, along with Yale Law professor Reva Siegel, disagrees. In both a recent book, Before Roe v. Wade, and the Yale Law Journal article "Before (and After) Roe v. Wade: New Questions About Backlash," the authors suggest that factors other than the court decision may have had much more to do with the state of today's debate.

One important thing most people don't realize, says Greenhouse, is that the move to relax state abortion laws came not from women's rights groups but from the medical profession and a prominent apolitical group of judges and lawyers called the American Law Institute.

"These were heavily, heavily male-dominated professional organizations that looked at the regime of criminal abortion laws that were driving women to back alleys and were putting doctors in legal jeopardy if they acted in what they considered to be the best interests of their patients," Greenhouse says. "And that's where the impetus really began."

Even those on the other side of the abortion debate don't dispute that the debate began well before the Supreme Court entered the fray. David O'Steen, executive director of the National Right to Life Committee, notes that the American Law Institute's model law called for allowing abortions in cases of rape, incest and fetal abnormality, and to preserve the physical health of the pregnant woman.

"And that law was passed in a number of states," he says. "Between 1967 and 1970, a total of 19 states had legalized abortion for reasons other than to save the life of the mother."

It's the next part of Greenhouse's and Siegel's argument that's more controversial. They say one of the things that really politicized the abortion issue was the efforts of those working to re-elect President Richard Nixon in 1972. His aides, including future Republican presidential candidate Patrick Buchanan, wanted to lure Northern Catholic voters, who had traditionally voted Democratic, over to the Republican Party.

Nixon "was strongly advised by his strategists ... to make a play for a Northern urban Catholic Democratic vote," says Greenhouse. "A kind of Northern strategy that mirrored the Southern strategy."

In fact, up until then, top Republicans tended to be more in favor of abortion rights than Democrats, including, for much of his first term, Nixon himself.

"It's upside-down," says Greenhouse. "It's like going through the looking glass into another world."

So, taking his aides' advice, Nixon switched sides on abortion, even reversing an earlier relaxation of an abortion ban in military facilities.

Meanwhile, his staff painted his 1972 Democratic opponent, George McGovern, as a radical, describing him as the candidate of "amnesty, abortion and acid," with amnesty referring to those who dodged the draft for the Vietnam War.

Although McGovern tried to deny the charges, the campaign worked. Nixon went on to trounce McGovern that November.

But it wasn't just the doctors and lawyers, or the politicians, who propelled the abortion debate before the Supreme Court got involved. The Catholic Church also played a role.

"During Vatican II, in the mid '60s, the pope instructed the U.S. bishops to make abortion a priority. And they did," says Jon O'Brien, president of the abortion-rights group Catholics for Choice.

Keeping abortion illegal, that is. But, O'Brien says, the church didn't necessarily want to be seen as the leader of that movement, because most of its flock didn't agree.

"A majority of Catholics, even back in the 1960s, believed that the abortion decision should be between a woman and her doctor," O'Brien says.

So the church created groups that were not overtly church sponsored.

"And what they wanted to do was give the appearance of having a grass-roots movement, when really this was the Catholic hierarchy at work to make abortion illegal in the United States of America and to keep it so," he says.

Taylor, of the Committee for a Human Life Amendment, is a living example of that move. As a graduate student then working for the U.S. Conference of Catholic Bishops, he was asked by the church to help run the original National Right to Life Committee, which the church had set up.

"I was asked, would I temporarily shepherd this thing until it could get on its feet independently," Taylor says. "And I did that. I started that in '69; I went full time in '70."

The National Right to Life Committee was spun off into an independent organization in 1973. And both current Executive Director O'Steen — who is not Catholic — and Taylor insist that the anti-abortion movement is both nonsectarian and very grass-roots.

"Nobody runs a grass-roots movement," Taylor says. "I think the pro-life movement is one of the strongest grass-roots movements in the history of this country."

But the fact remains that the 40th anniversary of Roe v. Wade is anything but the 40th anniversary of the nation's abortion debate.

And despite all the years of strife, it seems that not that many minds have been changed.

A poll by the Pew Research Center released last week found that over the past two decades, opinion on whether or not Roe should be overturned has barely changed. In 1992, 60 percent of those asked said the court should not overturn the ruling. Today that's up to 63 percent.

Perhaps more troubling for those on both sides of the debate, however, is that the older the ruling gets, the less young people appear to know about it. Among those younger than 30, only 44 percent polled knew the case was about abortion; 16 percent thought it had to do with school desegregation.

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Transcript

DAVID GREENE, HOST:

Today marks the 40th anniversary of Roe v. Wade. It is the landmark Supreme Court decision that legalized abortion nationwide. By now, most people think this marked the beginning of the long national battle over abortion, but as NPR's Julie Rovner reports, like just about everything else in the abortion debate, there's disagreement about that.

JULIE ROVNER, BYLINE: Here's how legendary ABC news anchor Howard K. Smith announced the news of the court's ruling 40 years ago.

(SOUNDBITE OF ARCHIVED NEWS BROADCAST)

HOWARD K. SMITH: The Supreme Court today rule that abortion is completely a private matter to be decided by mother and doctor in the first three months of pregnancy.

ROVNER: And the conventional wisdom remained that the decision so polarized the nation that it has poisoned the landscape ever since.

MICHAEL TAYLOR: I'm not sure you could have such black and white in politics as you do today if the court had not taken this very aggressive position.

ROVNER: Michael Taylor is a long time anti-abortion activist and heads the National Committee for a Human Life Amendment.

TAYLOR: As another scholar said, the court has made legislators and citizens mute on this issue.

ROVNER: But the idea that it was the court's decision alone that touched off the debate is leading people to incorrect conclusions about other sensitive social issues, says Linda Greenhouse of Yale Law School

LINDA GREENHOUSE: When you look at the use that many people are now making of the backlash narrative, which is to look at the same-sex marriage issue and say, watch out, if you win in the courts, you're just going to have a big backlash like Roe. I don't believe it's true there.

ROVNER: So what did happen in the abortion debate? Greenhouse, who covered the Supreme Court for the New York Times for three decades, along with a Yale colleague recently wrote a book and a law review article based on new research about the debate leading up to Roe V. Wade. One thing they found is that what the court did in 1973 really started in the1960s.

She says one thing most people don't remember is that the move to relax state abortion laws came at first not from women's rights groups at all, rather it mostly came from the medical profession and a from prominent apolitical group of judges and lawyers called the American Law Institute. It said it was time to rewrite laws that made almost every abortion a crime in every state.

GREENHOUSE: These were heavily, heavily male-dominated professional organizations that looked at the regime of criminal abortion laws that were driving women to back alleys and were putting doctors in legal jeopardy if they acted in what they considered to be the best interests of their patients, and that's where the impetus for change really began.

ROVNER: Even those on the other side of the abortion debate don't dispute that. David O'Steen is executive director of the National Right to Life Committee. He noted that the American Law Institute's model law called for allowing abortions in cases of rape, incest, physical health of the pregnant woman and fetal abnormality.

DAVID O'STEEN: And that law was passed in a number of states. And between 1967 and 1970, a total of 19 states had legalized abortion for reasons other than to save the life of the mother.

ROVNER: It's the next part of Greenhouse's argument that's more controversial. She says one of the things that really politicized the abortion issue was the efforts of those working to re-elect then President Richard Nixon in 1972. They wanted to lure Northern Catholic voters, who had traditionally voted Democratic, over to the Republican Party.

GREENHOUSE: He was strongly advised by his strategists to make a play for a Northern urban Catholic Democratic vote, a kind of Northern strategy that mirrored the Southern strategy, which, of course, was aimed at peeling the white Democratic voters away from their traditional home in the Democratic Party. And we know how successful that was.

ROVNER: In fact, up until then, Republicans tended to be more in favor of abortion rights than Democrats, including, for much of his first term, Nixon himself.

GREENHOUSE: It's upside-down. It's a totally - it's like going through the looking glass into another world.

ROVNER: So, taking his aides' advice, Nixon switched sides on abortion, even reversing an earlier relaxation of an abortion ban in U.S. military facilities. Meanwhile, his staff painted his 1972 Democratic opponent, George McGovern, as a radical, using abortion as part of the rhetoric. Says David O'Steen of National Right To Life...

O'STEEN: You know, '72 was when the furthest-left element of the Democratic Party really gained control, and if you remember those who opposed McGovern used a slogan: Abortion, Amnesty and Acid.

ROVNER: Amnesty, of course, referring to those who dodged the draft for the Vietnam War. And the campaign did work. Nixon went on to trounce McGovern that November.

(SOUNDBITE OF ARCHIVED TAPE)

PRESIDENT RICHARD NIXON: I notice some of the commentators are referring to the fact that it may be the greatest victory in American political history.

ROVNER: But it wasn't just the doctors and lawyers or the politicians who got the debate before the Supreme Court did. It was also the Catholic Church. Jon O'Brien is president of the abortion-rights group, Catholics for Choice.

JON O'BRIEN: During Vatican II, in the mid '60s, the Pope instructed the U.S. bishops to make abortion a priority. And they did.

ROVNER: Keeping abortion illegal, that is. But, O'Brien says, the church didn't necessarily want to be seen as the leader of that movement. Why not? Because, he says, most of their flock didn't agree with them.

O'BRIEN: A majority of Catholics, even back in the 1960s, believes that the abortion decision should be between a woman and her doctor.

ROVNER: So, he says, the church created groups that were not overtly church sponsored.

O'BRIEN: And what they wanted to do was give the appearance of having a grassroots movement, when really this was the Catholic hierarchy at work to make abortion illegal in the United States of America and to keep it so.

ROVNER: Now, remember Michael Taylor, the head of the Committee for a Human Life Amendment? He's actually a living example of that. As a graduate student then working for the Conference of Catholic Bishops, he was asked by the church to run the original National Right to Life Committee, which the church originally set up.

TAYLOR: I was asked, would I temporarily shepherd this thing until it could get on its feet independently. And I did that. I started that in '69; I went full time in '70.

ROVNER: The Right to Life Committee was spun off into an independent organization in 1973. And both current Executive Director O'Steen, who is not Catholic, and Taylor insist that the anti-abortion movement is both nonsectarian and very grassroots.

TAYLOR: Nobody runs a grassroots movement. I think the pro-life movement is one of the strongest grassroots movements in the history of this country.

ROVNER: But the fact remains that the 40th anniversary of Roe v. Wade is anything but the 40th anniversary of the nation's abortion debate. And despite all the years of strife, it seems that not that many minds have been changed. A poll by the Pew Research Center out last week, found that over the past two decades, opinion on whether or not Roe should be overturned has barely changed.

Sixty-three percent of respondents want it left in place now, compared to 60 percent in 1992. Julie Rovner, NPR News, Washington.

(SOUNDBITE OF MUSIC)

GREENE: This is NPR News. Transcript provided by NPR, Copyright NPR.