The Washington PostDemocracy Dies in Darkness

What Ruth Bader Ginsburg got wrong about pre-Roe abortion fights

The battle was fierce long before the Supreme Court entered the fray

A sketch shows Solicitor General Elizabeth B. Prelogar at the Supreme Court on Nov. 1. (Dana Verkouteren/AP)

On Wednesday, the Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, in which Mississippi asks the justices to eliminate the constitutional protection for the right to have an abortion. (I am a signatory to an amicus brief in the case).

The state’s brief calls the court’s major abortion precedents, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) “egregiously wrong” and “hopelessly unworkable.” It charges that both harmed the United States and the court’s legitimacy and calls for the justices to overturn them. This would return abortion regulation to the states, to be sorted out by democratically elected legislatures.

One piece of the state’s argument may particularly grab the justices’ attention. Mississippi claims that Roe unnecessarily inflamed an issue that might otherwise be less polarizing. It asserts that only by undoing this mistake can the court break “the national fever on abortion.”

The state cites an unlikely authority for this claim: Justice Ruth Bader Ginsburg, a longtime champion of women’s rights. While Ginsburg, unlike Mississippi, never wanted to see the Supreme Court completely withdraw constitutional protection for abortion rights, she suggested in 1984, and again in 1992, that the court should have given state legislatures limited guidance and allowed them to work out new policies — as, she claimed, they were doing before Roe interrupted their work. Such “modest measures,” she wrote, instead of the sweeping policy laid out in Roe, might have prevented the rancor surrounding abortion rights that has been so much a part of our post-Roe politics.

But the truth is that Ginsburg misread the history of political struggle over abortion.

From the moment in the mid-1960s when state legislatures started to discuss abortion policy, it was fiercely contested. This past offers no promise that, if the court returned the issue to the states, the renewed debates would be anything but fraught and rancorous.

Take New York State. New York enacted the most ambitious abortion legalization bill in the country before Roe. In April 1970, the state legislature, led by Republicans in both chambers, passed, and Republican Gov. Nelson Rockefeller signed, a bill that decriminalized abortion through the 24th week of a pregnancy. This was a transformative piece of legislation because unlike in the 10 states that had already liberalized their abortion laws, New York did not include a residency requirement. This meant that those with the time and financial means to travel to New York could obtain a safe, legal abortion there. In fact, about 60 percent of abortions performed in New York in the first two years after the law passed involved women from out of state.

Yet the expansive nature of New York’s new law belied the herculean work required to enact it. New York’s abortion law was the product of extraordinary circumstances that are unlikely to be repeated today or at any point in the foreseeable future. Passage relied upon a coalition of liberals in both parties who strongly supported civil rights, including reproductive rights.

Members of the National Organization for Women persuaded liberal Republican state Assemblywoman Constance Cook, a vice president of the state chapter, to lead the effort. Cook’s willingness to become the public face of this issue reflected a transitional moment when Rockefeller’s style of liberalism still defined the New York GOP before Republicans headed in a much more anti-civil rights direction — in large part driven by the antiabortion activism that would erupt after the legalization bill passed in 1970. Simultaneously, the rise of a more liberal, or reform, faction within the state Democratic Party made the party as a whole more responsive to feminist policy proposals, including legalized abortion.

The rising mass feminist movement also jolted the political process and applied pressure on the legislature, helping this coalition of liberal lawmakers to push the bill across the finish line. Just days before New York’s Senate voted on the abortion bill, for example, more than 1,500 people marched through midtown Manhattan, and 2,000 gathered at Union Square, demanding a full repeal of abortion restrictions. It was “the first time in many decades,” two participants observed, “that New York had seen masses of women in the streets on women’s issues.” In addition to marches, a highly coordinated campaign, exhaustive and probably exhausting, got women constituents into dialogue with their local representatives. The new feminism motivated these grass-roots activists to speak up about an issue that had traditionally been shrouded in secrecy, shame and silence.

This advocacy helped shock some fence-sitting legislators into changing their votes.

Even so, the measure only passed the state Assembly by one vote — thanks to a switch from no to yes by a liberal Jewish Democrat named George Michaels, who correctly understood the electoral peril of voting for the law. His political career ended months later, when an antiabortion Catholic defeated him in the Democratic primary. Similarly, the Republican who introduced the abortion legalization bill in the state Senate also lost his seat, exposing how politically fraught the abortion issue was about to become.

The unique political moment that enabled the abortion bill to just barely cross the finish line did not last long. In this state that was a hotbed of feminist activism, while also having a large Catholic population, abortion quickly became a partisan issue. In response, many Catholics who previously voted Democratic for the party’s anti-poverty measures began voting Republican during the 1970s — and the GOP moved to win the votes of Catholics and other groups uncomfortable with legal abortion.

This political transition in New York reached a crucial milestone in 1972, just two years after the abortion legalization bill passed. Antiabortion legislators, pressured by the Catholic Church and lay Catholic activists, especially previously apolitical women, tried to repeal it beginning in 1971. In 1972, they persuaded both chambers of the legislature to vote to undo the abortion law. Only a Rockefeller veto saved it. Early in 1973, abortion rights activists were preparing for a major march in the state capital to preempt what they fully expected to be a third battle over the law. They only called off the buses taking people to demonstrate, and relaxed a little, when the Supreme Court handed down its opinion in Roe.

New York was hardly alone in its stormy abortion politics before Roe. As the legal scholar David Garrow argued in The Washington Post in 1993, “the emergence of powerful antiabortion forces in 1970 and 1971 resulted in an all-but-complete deadlock on abortion liberalization in state legislatures across the country” after that point. The 10 states that had legalized abortion under certain circumstances before New York acted had provisions in their laws that were too limited to reach most of the conditions under which people sought abortions. After New York’s well-publicized change, the Catholic Church and individual abortion opponents went into high gear. Alaska and Hawaii loosened their laws through legislative action, and Washington state did so with a hard-fought popular referendum, all in 1970. But no other states moved forward before the Supreme Court spoke in 1973.

As Republicans moved to capitalize on this new antiabortion activism, in places like New York the GOP shifted from a party that accommodated those who supported legal abortion and other feminist policy proposals, such as Assemblywoman Cook and Rockefeller, to a more monochromatic party of conservative family values and Ronald Reagan by 1980 — ultimately making it a nearly implacable foe of abortion legalization with little interest in compromise.

The idea, therefore, that the Roe decision forestalled a politics moving toward a consensus to liberalize abortion laws, one that would have prevented the rancor that has governed the issue subsequently, simply isn’t true. Ginsburg, while well-intentioned, misdiagnosed the battles that followed Roe. Americans continue fighting about abortion because the revolution in assumptions about sex and gender, which made headway in the 1960s and 1970s, lost ground in the years that followed because of a rising conservative tide that began before Roe. It ultimately wasn’t possible for Americans to negotiate their differences over abortion through the state legislative process, because one side of the debate simply had a lot more power than the other.

What this portends if the court accepts Mississippi’s invitation to overturn Roe is hardly the peaceful scenario the state’s lawyers claim to endorse.