Justice Harry Blackmun published his opinion for the Supreme Court majority in Roe v. Wade 50 years ago on Jan. 22, 1973. Since Justice Blackmun’s ruling was overturned on June 24, 2022, it has been mourned and vilified, far more preciously held (by some) and defiled (by others) than the case whose holding has replaced it, Dobbs v. Jackson Women’s Health. As the results of last November’s midterm elections make clear, Roe—no longer good law but hardly forgotten—continues to remake our politics.
Although Roe continues to be a hyper-visible landmark in our political landscape, there is much we do not know about it. This is a history people committed to reproductive autonomy need to get right as we face the thorny post-Roe future. We must marshal every resource to recover what’s been lost since Dobbs while taking an unlooked-for opportunity to rebuild on more solid foundations for the future of reproductive rights.
For the longest time, all roads led to Roe. This includes the road that winds through my own family history. My late mother, a labor lawyer and volunteer with the National Organization for Women (NOW) named Beatrice Kornbluh Braun, wrote the first version of the law that decriminalized abortion in New York State—almost five years before Roe. Once the state legislature finished amending and passing it, in April 1970, N.Y.’s law was less sweeping than my mother’s draft but still the most liberal state statute on abortion in the United States. (It was liberalized further by the state’s Reproductive Health Act of 2019.)
It allowed people to end their pregnancies through their 24th week, or roughly the end of the second trimester, with no gatekeepers to decide if they deserved access to this medical service. Most remarkably, N.Y.’s law included no residency requirement. As soon as it was implemented, people arrived in N.Y. from every corner of the country seeking safe, legal, and relatively affordable abortion care. This law, a version of my mother’s spade-work, was a model and a launching point for what Justice Blackmun did in Roe.
The first thing we’ve missed about Roe is that it was merely the final scene in a drama whose origins lay far from the U.S. Supreme Court. Its true authors were members of a movement that resembled the movement for abortion rights today, centered on policy change in individual states and localities. Legal historian Stan Katz, who in the years just before Roe, volunteered with the American Civil Liberties Union of Illinois, told me he “never expected the Supreme Court to bail us out.” He believed that the way to secure abortion rights was to change votes in state legislatures and not to pull new constitutional interpretations from the courts—although the movement’s efforts wound up doing both.
Sarah Weddington, one of the two lead lawyers in Roe, was so unconvinced that an abortion-friendly reading of the Constitution was in the offing that she ran for a legislative seat in Texas while waiting for the decision. She introduced a bill much like my mother’s just three days before the Supreme Court ruled in her favor. Now that a raft of far-conservative judicial appointments and the Dobbs ruling have made the federal courts so unfriendly to reproductive rights, advocates should make obsessive study of our predecessors’ state legislature-focused strategies.
The next forgotten dimension of Roe’s past is the degree to which it depended on diverse grassroots activists working across their differences. The foot soldiers who waged local battles to decriminalize abortion didn’t censor their political views, but they learned to focus more on their common goals than on what divided them. My mother was a liberal lawyer who believed that abortion access was a necessary linchpin of women’s rights—to education, employment, and political participation, as well as to personal bodily autonomy. The reproductive rights activist who by coincidence lived next door to her in Manhattan, Puerto Rican physician Helen Rodríguez-Trías, believed reproductive rights could not be separated from questions about racial justice, economic justice, and sovereignty for territories, like Puerto Rico, that were (and still are) under U.S. imperial control.
Dr. Rodríguez-Trías saw the abortion rights struggle as just one part of a larger struggle for reproductive freedom. But she believed it was an integral part of that bigger whole. She advocated abortion rights while also working to improve public hospitals like the one where she worked, Lincoln Hospital, in the South Bronx neighborhood. She cofounded an organization called CESA, the Committee to End Sterilization Abuse, which fought the coercion and lack of informed consent that many Latinas, Black women, young and poor women experienced in the 1960s and 1970s around their decisions to have sterilization surgeries (typically, tubal ligations). For Rodríguez-Trías, the fight against sterilization abuse, too, was at the heart of the struggle for reproductive rights.
From looking at how the law of abortion changed 50 years ago, we also see that the grassroots action of people like my mother and Rodríguez-Trías served a vital role in public education and even changed public opinion. In Roe v. Wade, the Supreme Court ruled in a way that matched a transformation in public opinion – and that transformation was itself a product of popular agitation and legislative campaigns like the one in N.Y. A New York Times newspaper clipping that I found in Justice Blackmun’s papers reports on a finding from the August 1972, edition of the Gallup Poll that “64% of the public and even a majority of Roman Catholics” believed “that the decision to have an abortion should be left solely to the woman and her doctor.” It seems that either Justice Blackmun or his clerks emphasized the data with heavy underlining.
Even the reaction to the N.Y. law helped spur the Supreme Court to act as it did in Roe v. Wade. Immediately after its passage, a Fordham Law School professor named Robert Byrn, an activist in the still-rising movement for the “right to life,” challenged the N.Y. law in court. Byrn, who had served on a commission N.Y. Governor Nelson Rockefeller established to consider reforming the abortion law and would soon submit a “friend of the court” brief in Roe for the National Right to Life Committee, argued that embryos and fetuses above four weeks of gestation should be treated as people who possessed all of the rights of citizens under the U.S. Constitution—the first time such a claim for fetal personhood had been made in American courts. New York’s highest court, the Court of Appeals, rejected his arguments—and Justice Blackmun’s opinion cited that judgment when he, too, rejected the claim that the rights of gestating beings trumped the privacy rights of pregnant adults in the first two trimesters of a pregnancy. Another artifact I stumbled across in Justice Blackmun’s archives was a copy of an essay from the journal Science News, published in January, 1972, which argued that the ongoing ferment over abortion regulation in places like New York—symbolized by the Byrn challenge and despite improved maternal health and lowered costs for abortion since a version of my mother’s law went into effect—made it “clear that a definitive ruling from the Supreme Court is necessary.”
A half century on, Roe v. Wade is as important as it ever was, even if the Supreme Court majority no longer embraces it as a statement of our constitutional law. As we face the post-Dobbs v. Jackson landscape, it is vital for us to learn the lessons of Roe’s past and repeat what our predecessors got right. Much as they did, advocates and activists today need to fight local and state-level battles before we can restore national rights; we need to work together across gulfs of difference without silencing or marginalizing those differences; and we need to build from the grassroots up to the highest political or legal forums—never expecting the Supreme Court to bail us out.
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