Beyond Backlash: Legal History, Polarization, and Roe v. Wade

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods. This Article reevaluates the beyond backlash claim through a careful historical study of the world of abortion politics in the decade after Roe. It unearths a surprising set of negotiations between activists who believed in shared solutions. Roe certainly intensified conflict, prompting a nationalization of pro-life activities and sparking an academic debate about judicial review. Nonetheless, as the Article argues, the ideological entrenchment we associate with Roe came later than we have thought and emerged for reasons beyond the Court’s decision. This Article uses this history as an entry point for rethinking the uses to which post-Roe history is put in contemporary debate about judicial review. The beyond backlash argument uses Roe as shorthand for a wide array of strategic decisions and political events. Disentangling the decision from the events following it will allow scholars to have a more principled debate about what responses to Roe actually teach us about the role of the courts. At a minimum, the Article suggests that scholars have overstated the degree to which Roe immediately polarized discussion. Until we better understand the causes for the radicalization of abortion politics, we should not rely so heavily on Roe in reasoning about the consequences of judicial review. As importantly, reexamining the beyond backlash narrative makes apparent that polarization is neither inevitable nor beyond the control of nonjudicial actors. If we wish to create a more reasoned abortion debate, Roe cannot stop us from doing so