Abstract
This book is an exploration of Roe v. Wade (Roe), a precedent that the author, Professor Mary Ziegler, describes as, ‘a long shadow over American culture and politics’ (p. 1). The way this shadow manifests, she argues, is through Roe’s reputation as ‘America’s most controversial decision’ (p. 15) with a ‘legacy [that is]…complex’ (p. 252). Ziegler’s goal with this book is to explore the impact of Roe on not just abortion rights and reproductive justice in the United States but also the lesser known areas in which grass-roots activists and politicians were ‘energized’ by the decision. As Roe was decided on a right to privacy, Ziegler examines who in the aftermath of the decision asked ‘is there a right to privacy? For whom, and what is protected?’ (cover material).
The campaigns that Ziegler has selected for discussion alongside abortion are wide ranging and include sexual freedom campaigners, patients’ rights groups campaigning for a right to refuse treatment, patients’ rights groups campaigning for a right to access unproven treatments, disability rights groups and those campaigning for a right to die. She begins tracing these movements by giving a brief synopsis of their developments before Roe and then moving on to analyse the importance of right to privacy arguments after Roe in the 1970s. When examining the use of Roe in the 1980s and 1990s, she argues that this is when the now-familiar connotations with reproductive health emerged and were developed. She then goes on to address the linking of Roe to judicial activism and overreach, and the status of Roe in the United States today.
The diversity of groups and causes included in this book is a result of Ziegler taking a wide interpretation of the influence of Roe. She argues that Roe’s legacy should be seen not just by what was said in the Supreme Court but also ‘includes all that activists made it mean’ (p. 2). This applies to those who used abortion rights arguments and those who interpreted Roe’s ruling to apply to a ‘right to choose or a right to control one’s body’ (p. 2). She also analyses the impact of Roe on those who spoke of such rights without mentioning Roe directly, or at all. Through using these examples, she makes a compelling argument for looking beyond the exact wording of judgments to consider how the ideas discussed therein may manifest, be adopted and utilized in wider society.
This may seem like an overly broad method of engagement with the impact of Roe. However, Ziegler makes a strong argument for her inclusive method of analysis. She states that, for many, Roe was an important ‘rhetorical arsenal’ (p. 84) which allowed those who wished to argue for autonomy and choice to do so in a way that best suited their causes. One such example that she engages with is the use of Roe by mental health advocates fighting against forced drugging, who used Roe due to a lack of precedent in this area. Ziegler also argues for recognizing the tactical savvy of many grass-roots activists who tapped into the popularity of campaigns for the right to privacy in the years after Roe. Another point that she invites us to consider is that sometimes the creative applications of Roe were down to the inexperience of some activists, and also the outright rejection of the ‘niceties of constitutional doctrine’ (p. 3) by those who previously experienced the law as oppressive or hostile. These various approaches are well-illustrated throughout the book and would make for compelling reading for anyone interested in the history of activism or law in action.
Those familiar with the right to privacy in the US context may wonder why these activists and politicians used Roe as their source of inspiration, rather than Griswold v. Connecticut (1965) or Eisenstadt v. Baird (1972): the right to privacy was also the key consideration in these cases. Ziegler tackles this question head-on by first describing how controversial Roe was from the very beginning. Her highlighting of criticisms of Roe by those who may have been assumed to have supported it, such as women’s rights advocates, is an important inclusion and an often overlooked part of Roe’s history. Ziegler shows how the privacy argument was considered less favourable than an equality-based approach, which would have developed anti-discrimination jurisprudence.
However, Roe did have its advantages and Ziegler discusses this by detailing how Roe was seen as a more powerful tool through its ability to be used to overrule State decisions. She also suggests that Roe tied privacy arguments to ‘bolder’ (p. 4) issues of self-determination and a possible constitutional right to autonomy. In demonstrating how Roe was such a ‘potent symbol’ (p. 4), Ziegler points to the use of the arguments developed by conservatives to argue against the intervention of the government in areas such as consumer protection, social welfare and racial justice. This goal, she argues, of using the ideas in Roe through reinterpreting the Court’s decision, even had the effect of bringing together people on various points of the political spectrum to work together in a way that would be, in her opinion, ‘politically unimaginable’ (p. 160) today. An example that she uses to illustrate this is the Privacy Project, which brought together ‘civil libertarians, feminists, gays, and lesbians’ (p. 80) to work together for sexual autonomy. When considering the current operations of the US political landscape, Ziegler’s pessimistic observation about bipartisan campaigning for rights such as the right to consent to medical treatment seems particularly prescient.
Central to this book are the stories of the people who were involved in these causes. Ziegler argues that these are important to include as it is through these stories that we as readers, and people trying to understand the partisan politics and inequalities that exist today, cannot do so without understanding the influence of privacy arguments on the social-change politics of the time. Through the stories of those who campaigned for liberalization, such as the Mental Patients Civil Liberties Project, and to those who resisted liberalization, such as the Americans United for Life, readers can see real-world examples of the arguments that Ziegler is making about the importance of Roe. The number of organizations and people discussed in this book can sometimes be difficult to keep track of as a reader, but this demonstrates the winding-pathways that Ziegler acknowledges must be traversed in order to gain a comprehensive understanding of the legacy of Roe.
Another goal of Ziegler’s story-driven analysis is to try and ameliorate the conflicting evidence in the literature on whether using a right to privacy argument can assist those working to change society. Through her work, readers can see that some arguments and campaigns were more successful than others. When discussing sexual freedoms Ziegler details where campaigners were more successful, in challenging sodomy laws for example. However, she claims that an apparent ‘consensus’ (p. 9) about privacy in sexual matters has concealed a lasting rift between those advocating for wider sexual freedoms and those of the new right and religious right. She uses excellent examples of the limits of using the right to privacy argument in her chapters on mental illness (Chapter 3) and treatments for cancer patients (Chapter 4). Through cases such as Parkham v. J.R. (1979), she shows how the US Supreme Court denoted limits in the right to refuse treatment by concluding that family members and medical professionals could make decisions for minors who were considered to be mentally ill. Later courts sided with the Food and Drug Administration, confirming that it and the doctors could refuse a patient access to a drug that was not considered effective or safe, even if the patient had a terminal diagnosis. When it came to these disenfranchised groups, these arguments ‘did little to reshape attitudes’ (p. 10). The public were not yet ready to trust people to make their own decisions in these areas, she argues, and so the model of medical paternalism was continued despite Roe.
Some readers may wonder to what degree these changes could be attributed to Roe, and how many were because of changes in wider society (that possibly influenced Roe itself). In a demonstration of her comprehensive review of materials, Ziegler also addresses this point arguing that other societal events did influence how Roe was used or perceived. It came to be, and developed, during a time where a growing sense of individualism was gaining support in society alongside and, in part, due to free-market capitalism. Events such as developments in technology, Watergate and the AIDS crisis shook public confidence in authority and, she argues, led to a growing support of rights, such as the right to privacy relating to personal information. However, these societal influences could also work in the opposite manner. Ziegler identifies how during times of poor economic performance, courts used a neoliberal lens when balancing rights and a consideration of costs to the public purse. She also argues that the periods in power of Republican administrations, such as that of Reagan, helped to turn conservatives away from using Roe as a precedent, as they styled themselves ideologically as ‘the party of life’ (p. 160) and Roe, in their opinion, was antithetical to that identity. So what readers have here is a picture of a complex set of influences, reactions and arguments and Ziegler does a masterful job of threading them all through each other.
While the book taken as a whole is illuminating in terms of understanding contemporary US politics, one chapter in particular stands out. In Chapter 6, Ziegler returns to Roe in the context of abortion politics and examines ideas around conscientious objection and the role of the judiciary. Ziegler argues that, through events such as the Vietnam War, more people became aware of conscientious objection. As the links between Roe and ideas around the right to choose in the context of abortion became strengthened in the mind of the public, more pro-lifers began to use their objection as a political tool to oppose abortion access and to justify civil disobedience. To demonstrate this, Ziegler uses the example of Operation Rescue and activists in the clinic blockade movement. To them, Roe was bad law and could be, and needed to be, disregarded. Conservative support for Roe continued to be strained, she argued, and now Roe is seen as a symbol of judicial overreach, where instead of interpreting the law, the Supreme Court created law. This history is vitally important to understanding some of the anxieties around President Trump’s Supreme Court appointees; Ziegler’s chapter offers a concise appraisal of events.
Ziegler concludes that Roe gave social movements a great opportunity to push for change. While the arguments were not always successful, she argues that Roe required courts to examine equality and dignity arguments closely. It involved ‘ordinary people’ who ‘made – and remade – law in ways rarely understood, appreciated or recalled’ (p. 14). It destabilized hierarchies in the home, workplace and in the hospital. By reading the stories and following the timelines that she details in this book, readers can see that these arguments are well made. Beyond the Trump administration, it is hard to say what future Roe may have in the United States; but, in part now thanks to Ziegler’s book, we can be sure of its place in the history of US activism.