Opinion
1:27 pm
Thu January 24, 2013

Roe v. Wade at 40: A Look at Its Legacy

Transcript

NEAL CONAN, HOST:

We didn't have a chance on Monday to get to our opinion page, so now a special Thursday edition of the opinion page. This week marks the 40th anniversary of Roe v. Wade, the landmark Supreme Court decision. In a recent piece for The New York Times, that newspaper's former Supreme Court correspondent, Linda Greenhouse, wrote that the ruling that legalized abortion across the entire country was much more about the rights of doctors than the rights of women.

Linda Greenhouse is co-author of "Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling." She joins us by phone from her office in New Haven, where she now teaches at Yale Law School. Good to have you back on the program.

LINDA GREENHOUSE: Oh, thanks very much.

CONAN: And one of the documents you reprinted is the story of Dr. Jane Hodgson. What's her part in Roe v. Wade?

GREENHOUSE: Well, she didn't have a direct part in Roe against Wade. Jane Hodgson was a very courageous obstetrician-gynecologist in St. Paul, Minnesota in the early 1970s. Before Roe she was a Mayo Clinic-trained doctor. And she decided to test, to challenge the Minnesota criminal abortion law. She had a patient who had contracted German measles very early in her pregnancy. And people my age might remember, before there were immunizations, that there were epidemics of German measles that swept through the country, and when it hit somebody early in pregnancy, it had a very high probability of causing serious birth defects.

So this young woman who already had several children, as I recall, decided that she wanted an abortion. And Dr. Hodgson was willing to do it, did it, and then basically called the police and said come and get me. And they did. And they arrested her and they prosecuted her and she was convicted. And she was - she would have been sentenced. But at the time she was about to be sentenced, the Supreme Court decided Roe against Wade, of course legalizing abortion throughout the country. And so Dr. Hodgson was off the hook.

CONAN: But that case illustrates what the justices were considering as they looked at this case. It was the doctors whose - were dispensing what they thought was the best treatment for their patients; that's who they were most concerned about.

Yes. And I should say, from the comments that my online column is running today attracted, I think some readers misunderstood me to say that women's rights is somehow divorced from the abortion question, and that's not at all what I was trying to say. What I was trying to say was in the minds of the justices, the seven middle-aged and elderly guys who formed the majority in Roe against Wade - it was a 7-2 decision - when you actually read the opinion, the voices of women, those voices were presented to the court.

GREENHOUSE: There were briefs from feminists and women's groups and so on, but they're really not reflected in the opinion. The emphasis in the opinion is on the rights of doctors. And that's easy to understand because the court at that time, 1971, '72, '73, didn't really have a jurisprudence of women's rights. The court had yet to find that discrimination against women was a form of unconstitutional sex discrimination. So it's not surprising that that was not a frame through which they saw the abortion issue.

CONAN: And interesting, you note that coverage in the newspapers the next day, well, it wasn't - it was front-page news, but the death of Lyndon Johnson competed for the headlines.

GREENHOUSE: Well, that's right. And of course in New York, the New York legislature had legalized abortion in 1970 by a legislative vote. And so when the Supreme Court decision came down, it didn't change life on the ground in New York and the opinion was, you know, people don't - we look at it now through the lens through which we see the abortion controversy today.

But that's actually not how it evolved. So Roe against Wade, of course, overturned a Texas law, a Texas law that made abortion a crime, and newspapers in Texas praised the decision. The companion case, Doe against Bolton, overturned Georgia law, Georgia abortion law, and newspapers in Georgia praised the decision. So, you know, one point I tried to make in the column is that the controversy that surrounds abortion today actually is something that's quite different from the debate that was going on at that time.

CONAN: And quite different and you suggest that consciously the Republican Party tried to stir opposition to Roe v. Wade as the northern counterpart of its southern strategy.

GREENHOUSE: Oh, yes. I mean the historical evidence on that is irrefutable. When - now, when we say try to stir controversy, of course there was controversy before the Supreme Court ruled. There was controversy that had absolutely nothing to do with the Supreme Court because reform had been stirring in various parts of the country. And even the slightest stirrings of reform, the mildest kinds of reform, not just repeal of the old laws but tweaking the old laws, engendered very concerted opposition from the Catholic Church hierarchy.

And there was the formation of the National Rights to Life Committee and so on, so that there was a lot of pushback and conflict that had nothing to do with the court. So the kind of received notion that, oh, nothing was going on and then the Supreme Court ruled and we've had controversy ever since is really a distortion of what occurred. We have conflict, all kinds of conflict, and it doesn't mean that Supreme Court decisions or judicial decisions cause a special kind of conflict.

CONAN: We're talking with Linda Greenhouse, now a professor of law at Yale University Law School. You can find a link to her piece that ran in The New York Times on our website. Go to npr.org, click on TALK OF THE NATION. And this is TALK OF THE NATION from NPR News.

Another part of that backlash theory that you were writing about in your piece was that it shows up in the controversy that the court faces today in the decision on gay marriage, the idea that it was the court's imposition of abortion across the country that we would have been better off had it been decided by legislatures rather than by the court, and people draw an analogy to gay marriage.

GREENHOUSE: Yes. I mean, certainly not my view of what happened after Roe against Wade. But the reason that the backlash narrative so-called that I'm trying to shed some light on and raise some serious questions about, the reason it's relevant today is that people either out of fear of what might happen if the courts rule in favor of same-sex marriage, or they wish some negative reaction would come from a court decision legalizing same-sex marriage, invoke what they assert happened as the result of Roe against Wade as a way of saying watch out, don't go there, don't turn to the courts. If you win in the courts you're going to lose to the public.

And what my view is and what I try to suggest in that column is, there's no one-size-fits-all response to court decisions or to social conflict over these kinds of issues that we can predict one thing that will happen. Each situation has its own costs and its own benefits. And the choice of whether to go to litigation, legislation, let events take their course, those all have to be evaluated on their own merits. There's not a kind of a slogan that one can invoke about what to do.

CONAN: And over the years, particularly in the last three years, we've seen many efforts in state legislatures to chip away at the rights provided under Roe v. Wade. And it's interesting, you describe yourself as one of the - those who was a profit of doom until this past election.

GREENHOUSE: Yes. I think, you know, when you look at the sort of ebb and flow of the abortion controversy and what happens in the courts and what happens in politics, it's kind of cyclical. And you can see sort of negative court decisions that follow elections that lead to Supreme Court appointments and so on. We can go into a lot of detail about this.

And so the question is, what's the mood of the country right now? And there was a recent Wall Street Journal/NBC poll this week that showed people were asked - would you like to see Roe against Wade overturned? And 70 percent of the people said no.

We know what happened in various campaigns around the country this year when Republicans went quite far and kind of weird theories about women's anatomy or what should happen with reproductive rights. And you could make up a good case that there is a new mood in the country. So that even though it's very concerning to those of us on the pro-choice side that a number of states have gotten away with putting up these various obstacles and various restrictions, the right to abortion still exists. And I believe that it will continue to exist as a matter of law.

CONAN: Linda Greenhouse, thanks very much for your time.

GREENHOUSE: Thank you.

CONAN: Linda Greenhouse, former Supreme Court correspondent for the New York Times and currently a professor at Yale Law School. She joined us from her office there. Tomorrow, it's TALK OF THE NATION: SCIENCE FRIDAY. Ira Flatow will be here with the next pick in his SciFri Book Club, Michael Crichton's 1969 classic "The Andromeda Strain." And see you again on Monday. Have a great weekend, everybody. I'm Neal Conan. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.