This month, Life of the Law is featuring the work of scholars published in the June 2014 issue of the Law and Society Review, which has partnered with LOTL to make the longer versions of these articles free for 30 days (through July 18th) for anyone who accesses them by clicking here.
When the Supreme Court takes a case about a major social controversy, such as gun ownership or same-sex marriage, we talk about how the Court’s decision might change social policy by upholding, for example, a right to gun ownership or marriage. What we don’t often discuss is how a Supreme Court decision can influence not just the policy itself, but the way we talk and think about the policy.
The justices are respected, more so than the Congress and White House, and their unique position as constitutional arbiters mean they can decide whether certain kinds of arguments—arguments about the meaning of the Constitution—should be taken seriously by the public. I think Court decisions sometimes do more than just change policy; they change the way we think and talk about policy. In an article published in the current (June 2014) issue of Law and Society Review, I show that this happened in the case of abortion. Through a reading of thousands of different texts, I argue that the Court’s decision in Roe v. Wade changed the very meaning of abortion in America.
Newspaper opinion pages offer a pretty good look at how mainstream public figures talk and think about policy issues. Taken together, newspaper editorials (and op-eds and letters) showcase the range of opinions that make up the chorus of policy voices influential in Washington. In the first half of the century, the most prominent American newspapers had confined mention of abortion to their crime blotters, but in the 1950s, that began to change slowly, and by the middle of the 1960s, many establishment newspapers were calling for various kinds of liberal reforms.
On August 1, 1966, the Los Angeles Times ran an editorial about abortion. This wasn’t unusual; though far from the top of the national agenda, abortion policy was an increasingly controversial and talked about issue in the 1960s. What made the editorial unusual was how comprehensive it was. This editorial was a tour-de-force of opinion journalism, a grand statement for liberal reform from an increasingly influential (and increasingly liberal) newspaper. Most editorials run only a few paragraphs and make a few arguments, but this one ran twelve paragraphs, and its authors made every prominent argument that proponents of abortion policy reform were making in the 1960s. The editorial argued that illegal abortions carry unnecessary risks and suffering for women who pursue them and that it is cruel to prevent physicians from helping patients in need. It discussed victims of rape and incest, congenital disorders, pregnant teenagers, and unwanted children. The editorial argued that legalization would be humane, that abortion would not supplant birth control or promote promiscuity, and that it could prevent “up to 10,000 deaths a year.”
What this lengthy editorial did not mention was privacy. The newspaper’s opinion page did mention privacy, however, six years later, in an editorial printed on January 23, 1973, the day after the Court’s ruling in Roe v. Wade. The board wrote:
“It is obvious that the best way to handle unwanted pregnancies is to prevent them. Abortions are, for many, immoral, but there is nothing in this decision to force the unwilling to submit to the procedure. ‘More important is the right of privacy, which surely must include protection from unreasonable intrusions by government in private matters.’”
It’s a familiar position, and from our vantage point it seems wholly unremarkable that liberals would agree that the right to privacy surely entails a right to an abortion. But in the decade preceding Roe, the Los Angeles Times published eleven editorials about abortion. The word privacy appeared in none of them. By the end of the decade, however, talk about privacy would come to dominate discussion of abortion policy. But it did not fill a vacuum. By the 1990s, the privacy argument had grown to such influence that discussion of abortion as an actual medical practice had begun to disappear, replaced by an abstract constitutional idea. In the decade before Roe, an ordinary editorial about abortion in the New York Times included two different arguments about health and safety, while fewer than half of editorials included an argument about rights or the Constitution. By the 1990s, however, arguments about rights were appearing more than three times as often, while arguments about health and safety, once dominant, were now appearing in fewer than one out of every three editorials.
There is another change that paralleled this one, and it is telling. In the years before Roe, women making abortion decisions were described as making them “with a physician.” Even in response to the Court’s ruling, one newspaper wrote that “the decision will not satisfy those who had argued that the mother should make the decision. It insists that the decision be made with the personal physician.” In the years after Roe, however, the same freedom of choice that liberated women to make reproductive decisions for themselves entailed the disappearance of the medical context in which that decision had once been made. And as imagery of back alleys and sterile operating rooms alike disappeared, replaced with the conscience, abortion was itself transformed from a medical choice to a moral one. In the wake of a rising discourse of abortion rights, the doctors disappeared.
Both despite and because of the Court, we have ongoing debates about abortion. At this moment, opponents of safe and legal abortion are experiencing some success in efforts to impose burdensome regulations on abortion services. Most of these, such as hospital admitting privileges for abortion providers, serve no medical purpose for what is one of the safest and most common medical procedures in the United States. The ongoing marginalization of the public health community in the abortion debate almost certainly makes such policies an easier sell.
Vincent Vecera is Assistant Professor of Political Science at Randolph College. His research is focused on the political development of civil rights in the United States.