The Myth That Roe Broke America

The debate over abortion is an important part of the story of polarization in American politics, but it is not its genesis.

Anti- and pro-abortion protesters in 1973
Associated Press

The idea that American politics became bitter and divisive because of Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, is a cherished bit of right-wing folk history, akin to the idea that Robert E. Lee opposed slavery or that the purpose of the Electoral College was to protect small states from the tyranny of big states. Like any political use of history, its purpose is to justify the use of power to achieve a desired end—in this case, the overturning of Roe and the elimination of women’s right to decide whether and when they have a child.

In his draft opinion overturning the decision, Justice Samuel Alito laments that Roe “sparked a national controversy that has embittered our political culture for half a century.” In classic Alito fashion, the justice contradicts himself later in the opinion, arguing that the justices cannot consider how society would be affected by Roe being overturned, insisting, “We would have no authority to let that knowledge influence our decision.” Alito’s defenders and fellow travelers have echoed this reasoning. The New York Times columnist Ross Douthat described the decision as “an inflection point where the choices of elite liberalism actively pushed the Republic toward our current divisions, our age of chronic strife.”

Roe is an important part of the story of polarization in American politics, but it is not its genesis. “The idea that Roe kickstarted polarization is a really dramatic oversimplification,” Mary Ziegler, a law professor at UC Davis and the author of the forthcoming Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, told me. “If people are genuinely upset about polarization, presenting Roe as the source of that denies that a lot of other people had responsibility. There were a lot of politicians, activists, media figures, and lawyers who deepened the divide on abortion and benefited from it.”

The notion that Roe is solely or largely responsible for polarization and bitterness in American politics is an ideal just-so story for anti-abortion advocates who wish to celebrate its destruction, but that story bears little resemblance to history as it actually occurred—it is an argument that rests on wiping the 1960s from public memory as easily as you delete a botched photo from an iPhone. The right-wing counter-mobilization against the Supreme Court had already begun as early as the Brown v. Board of Education decision striking down segregated schools, and the parties had begun sorting into more coherent ideological blocs as a result of the realignment of conservative Southern Democrats into the Republican Party. Abortion was already a divisive issue when Roe was decided, but in the immediate aftermath of that decision, activists on each side of the issue cooperated on proposals to support mothers more than they ever have since. The “bitterness” of the abortion debate is not a cause of polarization, but its result.

“At an elite level, the parties remained internally divided on abortion until the early 2000s—30 years after Roe and the emergence of polarization on most other issues,” Nolan McCarty, a Princeton University political-science professor and a co-author of Polarized America, told me. “Within Congress, partisan divisions were much clearer on taxes, regulation, and labor policy than on abortion.”

The conservative Wall Street Journal columnist Peggy Noonan wrote last week that “other high court decisions that liberalized the social order—desegregation of schools, elimination of prayer in the schools, interracial marriage, gay marriage—were followed by public acceptance, even when the rulings were very unpopular.” Saying the Supreme Court’s decisions on school prayer and integration were followed by “public acceptance” is a little like saying that the South welcomed the election of Abraham Lincoln.

“Ultimately, Roe was used to mobilize evangelical voters who had very conservative ideas about racial and gender equality,” Lilliana Hall Mason, a professor at Johns Hopkins University and the author of Uncivil Agreement, told me. “When those voters joined the Republican Party, it continued the process of realignment that began after the civil-rights legislation of the 1960s.”

Southern politicians infamously responded to the Brown decision with a campaign of “massive resistance,” by attempting to thwart integration through violence, by passing laws making desegregation illegal, and by privatizing their school systems—a campaign backed by conservative organs such as National Review. Segregationist Democrats such as George Wallace attacked the justices as “omnipotent black-robed despots,” while Republicans such as Richard Nixon refined southern-style criticisms of the Court into more neutral-sounding language. Nixon outmaneuvered his more conservative rival Ronald Reagan for the GOP presidential nomination in 1968 partly by reassuring the segregationist Senator Strom Thurmond that he was the best hope of bringing a “power-grasping Supreme Court” to heel. Conservatives turned the Warren Court’s decisions on criminal justice into a way to attack the civil-rights movement without defending Jim Crow directly. Nor could anyone seriously describe the politics of the 1960s as tame, with the civil-rights movement and the anti-war movement, and extremism that generated a long list of bombings and assassinations.

In the 1960s, abortion was a divisive matter but not a partisan one—the ideological valences of the issue were not yet clear. In 1972, a year before Roe, conservatives attacked Nixon’s Democratic rival, George McGovern, as the candidate of “acid, amnesty, and abortion,” hoping to damage his standing among Catholic voters. Ironically, McGovern’s position at the time was Alito’s—that abortion was an issue for the states. Nixon, for his part, privately acknowledged there were moments when he believed abortion was “necessary,” such as “when you have a black and a white, or a rape.” In The Rise of the Conservative Legal Movement, Steven Teles quotes a memo written by the Nixon aide Pat Buchanan, in which Buchanan voiced his hope that his boss’s appointees to the high court had halted its “social experimentation.”

“There was an intense conflict about abortion before Roe,” Ziegler told me. “This partly reflected a more general, prolonged partisan realignment that began in the 1960s and reshaped party identification in the 1980s, congressional elections in the 1990s, and state legislative races in the 2010s. But the parties’ positions on abortion were diverging too. It’s not that Roe doesn’t matter, but the polarization of the parties is already happening for different reasons.”

Nixon’s Supreme Court appointees—three of whom supported Roe—were simply not ideological enough to suit many conservatives. This was one of the catalysts for the modern conservative legal movement, for which the overturning of Roe would be a crowning achievement. But that movement, which emerged in opposition to liberal legal victories on religious freedom, criminal justice, and business regulation, was slow to embrace overturning Roe as a cause, Ziegler said. Some of its members were ambivalent about the issue—many of them were ideologically anti-statist; some were uncomfortable with the state interfering with such personal decisions.

“The idea that opposition to abortion went together with free markets and anti-communism was not clear in the 1970s,” Teles told me. “The kind of decisions Nixon and the people around him thought they were going to change were more like Miranda than Griswold,” he said, meaning that they were more frustrated with the Warren Court’s criminal-justice jurisprudence than the 1965 decision guaranteeing married couples the right to use contraception.

Similarly, some Democrats openly expressed their opposition to abortion rights. In 1977, the civil-rights leader Jesse Jackson wrote that “if one accepts the position that life is private, and therefore you have the right to do with it as you please, one must also accept the conclusion of that logic. That was the premise of slavery.” But by the 1980s, as he prepared to run for the Democratic nomination for president, although Jackson was still expressing his personal opposition to abortion, he was also insisting that the state should not interfere.

In the aftermath of Roe, Ziegler has written, anti-abortion activists supported legislation barring discrimination on the basis of pregnancy and advocated for state-supported child-care services and sex education. On the other side, she writes, “members of Congress and some organizations supportive of abortion rights endorsed limited protections for fetuses that did not conflict with a woman’s abortion decision. Pro-choice activists debated the propriety of fetal rights in the context of scientific experimentation and late-term abortion.”

Those early points of convergence became a casualty of the polarization that was already well under way. Republican activists such as Paul Weyrich saw abortion as a promising wedge issue to split the Democratic coalition, which included many working-class Catholics. As the abortion-rights and anti-abortion movements became more aligned with a single party, they adopted the ideological assumptions of their comrades.

“In forging a working relationship with social conservatives, abortion opponents took more extreme and consistently right-wing positions on a number of gender issues. In response, pro-choice leaders expressed skepticism about any effort to recognize fetal rights,” Ziegler writes. “For reasons having little to do with the Court, movement members, politicians, and political operatives deliberately and consistently made decisions that intensified abortion conflict.” Blaming Roe for “embittering” American politics ignores those who profited from that very outcome.

When conservatives talk about Roe, a decision they loathe, they engage in the common tic of conflating their own views with those of the public. In this case, because Roe is a decision they find uniquely abhorrent, they assume that same view is shared by the majority of Americans—certainly those they consider “real” Americans. But the irony of this argument is that the decision in Roe, by finding a constitutional right to abortion while allowing some restrictions, is far closer to reflecting Americans’ ambivalence on the matter than Alito’s leaked draft opinion is.

As my colleague Jerusalem Demsas writes, “The number of people favoring legal abortion under any circumstance has consistently outstripped the number of those wanting it to be illegal under any circumstance since 1975. But the broad center of public opinion says that abortion should be legal only ‘under certain circumstances.’” Unlike other issues, that divide has remained stable since the 1950s. Only the composition of the Supreme Court has changed.

If the argument is that Roe was the origin of today’s partisan polarization by settling a profound moral argument too early, or that it went against the preferences of the majority, then conservatives should be worried. Because if that’s true, then the backlash to a decision overturning Roe will ultimately be massive. But perhaps Republican confidence about being able to weather a post-Roe backlash has more to do with GOP success at election-proofing state legislatures through gerrymandering than the delusion that criminalizing abortion is popular. Having limited the ability of voters to throw anti-abortion lawmakers out of office, Republicans may present their continuing majorities as proof of post-Roe harmony. Indeed, the fantasy that Roe sparked polarization, and the implied logic that getting rid of it will heal the divide, can be read less as a hopeful prediction than as a demand for surrender.

Skeptical as I am about the conservative narrative on Roe, however, I do not know if there will be a big backlash. The Democratic Party’s politics in the Biden era are of strategic retreat from any controversial matter, ceding the field to a Republican advance, in the hopes that voters will independently decide that the GOP is too extreme to support.

I am more certain that the regime of state surveillance, prosecution, and incarceration that Republicans are planning in the event that Roe is overturned dwarfs anything that existed before the decision, and seems likely to reach beyond abortion to contraception, especially given that conservatives define some contraceptives as “abortion-inducing drugs.” Those with an understandable moral ambivalence about abortion may find themselves nonetheless horrified by grieving mothers being investigated by cops after a miscarriage or state authorities combing through social media for evidence of illegal travel across state lines. Enforcing bans on abortion will require extreme violations of personal freedom that until now have been abstract. Other nations with strict abortion bans have found that those violations were too frequent and too harsh to justify.

As Jessica Valenti notes, contrary to conservative stereotypes, most women who have an abortion—about a quarter of all women—are already mothers, concerned about being able to care for children they already have. The consistent conservative hostility to expansions of the welfare state suggests that recent claims that Republicans might back state support for such mothers in the aftermath of Roe’s hypothetical demise are just rhetoric meant to shield the party from accusations of callousness. The only states with paid family leave are those with few restrictions on abortion.

Perhaps class divides would soften the potential political repercussions of overturning Roe, with middle- and upper-class women receiving medication in discreet brown packages, while poor women face burdens of access that leave them more vulnerable to prosecution and incarceration. Whatever the outcome, the “bitterness” surrounding the issue seems unlikely to subside.

“People with opposing views on abortion did not have those views because of Roe; they had them before Roe, and Roe did not convince them they were wrong,” Ziegler told me. “Getting rid of Roe isn’t going to convince them they were wrong either.”