Forty years after the Supreme Court handed down its landmark decision in Roe v. Wade, the backlash it generated continues to shape the public discourse, says Harvard Law School Professor Michael Klarman, an expert on constitutional law and constitutional history.

“The justices who decided Roe almost certainly did not expect the kind of political backlash that materialized in its wake,” Klarman said. “They thought they were pushing the country further in the direction it was inexorably moving in, which was progressive reform of abortion statutes.”
At a March 12 event commemorating the 1973 decision guaranteeing a woman’s right to an abortion through the second trimester, Klarman explored the ways that public response to the controversial Supreme Court decision sparked a strong resistance that redrew the lines on the cultural battlefield. Harvard Law Students for Reproductive Justice hosted the talk.

Klarman offered several explanations for why the Court ruled the way it did in the case and how the country responded. For starters, the Supreme Court was fooled by opinion polls showing that 64 percent of Americans in the summer of 1972 thought that abortion should be a private decision between women and their doctors, even while 32 states still had restrictions allowing abortions only when a woman’s life was in jeopardy. The Court might also have been convinced that opposition to abortion was mostly coming from a vocal Roman Catholic minority, which had also opposed expanding access to contraceptives.

By deciding Roe the way it did, however, the Supreme Court struck down the abortion laws of 46 states and opened the floodgates for a wave of opposition that has never abated, Klarman said. By placing strong protections on abortion rights instead of finding a possible compromise or middleground, such as limiting abortions to the first trimester, the decision sparked extreme resistance fueled by images of fetuses late in the second trimester.

The decision did not have to be that way, however, Klarman said. In fact, Justice Harry Blackmun’s first draft of the opinion limited guaranteed abortion rights to the first trimester and changed only after Justice Lewis F. Powell’s law clerk suggested extending the decision to the second trimester.
“Things almost didn’t turn out the way they did, and one has to wonder how it would have changed the politics of abortion if the court stuck with Blackmun’s first version,” Klarman said. “Since 90 percent of abortions take place in the first trimester, late-term abortions are a symbolic issue but one of great potency, as Republicans have shown in the last 15 years. Roe put the court on the wrong side of public opinion by extending the right beyond what the public was willing to accept.”

Klarman argued that Roe’s legacy in legal thinking and judicial reasoning has played at least as prominent a role as the backlash it generated in public opinion. In fact, Klarman said, although most constitutional theory has been preoccupied with justifying or condemning Roe, the modern school of formalism and originalism developed mostly in response to the decision.

“It’s perfectly easy to imagine how differently Constitutional law might have developed,” Klarman said. “Rather than charting a constitutional course about a woman’s right to privacy, we could have had one about the fetus’s right to life.”

“In that alternative universe, our entire perspective on judicial activism would be flipped,” he continued. “Justice Scalia would be talking about protecting rights that aren’t clear in the Constitution and Justice Breyer would be accusing him of Constitutional navel-gazing.”

Klarman’s theories about the backlash to Roe v. Wade are part of a larger body of research he has led into the way that controversial Supreme Court decisions have fueled resistance that later stands in the way of the progressive reform the decision was meant to advance.

Other examples include Brown v. Board of Education, which Klarman argues provided a boost for radical segregationists and made it harder to desegregate the South, and the Massachusetts ruling in Goodridge v. Department of Public Health, which constitutionally established same-sex marriage in the commonwealth, but immediately led to 13 states adopting constitutional bans on same sex marriage.

In all those cases, according to Klarman, the backlash occurred not because the Supreme Court opinions were controversial per se, but because they were decided while public opinion in the majority of the country was lagging behind the Supreme Court’s progressive decisions.

The Kirkland & Ellis Professor of Law, Klarman is the author of many books, including most recently: “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (Oxford University Press, October 2012).