Before Roe v. Wade

reviewed by Jenni Parrish

Last spring Gallup published a series of articles and poll results revealing the views of Americans on abortion since 1975, concluding: "Over the past three decades, men and women have consistently held similar views about the extent to which abortion should be legal." But the analysis reveals that a sizable gender gap emerges with higher education: "College-educated women are significantly more likely than college-educated men to believe abortion should be legal under any circumstances."

Meanwhile, state legislatures (such as those in Florida and Oklahoma) continue to nibble away at a pregnant woman's right to choose, demanding that she undergo an ultrasound of the fetus, listen to a detailed description of the fetus, and fill out lengthy questionnaires about her private life before she is allowed to undergo an abortion. The more things change, the more they stay the same.

The book Before Roe v. Wade is a documented compendium framing the social and historical back story to the famous 1973 Supreme Court decision. For those of us who came of age at the time of Roe (410 U.S. 113 (1973)), it is tough to accept the idea that it is an era "rapidly fading from memory," as the book's editors, Linda Greenhouse, formerly the New York Times's Supreme Court reporter, and Yale law professor Reva Siegel, say in the foreword. But in fact, the Roe decision predates the births of many currently practicing attorneys. And even for those who have studied abortion litigation and legislation over the years, it is easy to confuse the facts with the myths surrounding Roe. "For example, the fact that neither fetuses nor women figured very prominently in Roe v. Wade makes it plausible to assume that feminist voices and right-to-life voices were simply missing," say the editors, "both from the arguments ... and from the public conversation." Though this was not the case, the editors go on to say that Roe is a decision "that appeared mainly responsive to the arguments of the medical community ... and in its main holding affirmed the autonomy of doctors to act in what they believed to be the best interest of their patients."

In addition to the medical arguments, the book includes letters, articles, and policy statements from public health advocates, environmentalists, feminists, and religious voices on both sides of the issue.

Another myth concerning Roe is that it was a "historical aberration" brought to the Supreme Court by chance. In fact, at least a third of the states had amended their abortion laws during the late 1960s, and at least six state court challenges were in the pipeline at the time the Court heard arguments in Roe.

My only quibbles are that the decision isn't included in the book, and with the editors' characterization of their own biases: "Although both of us believe that women should be free to decide for themselves whether and when to bear children, this is not a work of advocacy." On a legal and political issue of this magnitude and longevity, whose controversial nature has not dimmed with the passage of time, it is nearly impossible to select documents for such a work without displaying at least a subtle bias. And there is nothing wrong with that. Total neutrality rarely provokes the best thinking.

Jenni Parrish is a law professor at UC Hastings and the director of its law library.

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