Book review of Roe: The History of a National Obsession by Mary Ziegler

As Mary Ziegler chronicles in “Roe: The History of a National Obsession,” the battleground was not contained to the fierce debate over women’s rights to bodily autonomy vs. claims of states’ interest in protecting fetal life. Rather, the fight over Roe — indeed, the continuing discussion now that Roe has been wiped from the lawbooks — launched a national argument about the correct method of constitutional interpretation and the role of the judiciary in American democracy. It implicated issues of women’s equality, racial justice, scientific knowledge and religious liberty.

Some iconic decisions, such as Brown v. Board of Education, received universal acclaim — if not at the moment they were decided, then in the longer lens of history. Others, such as Korematsu v. United States, upholding the detention and relocation of Japanese Americans during World War II, became part of the anti-canon, reviled in retrospect. Roe remained intensely, perhaps uniquely, contested.

“Roe has become the repository for the contradictions of the American abortion war. By infusing it with so many complex ideas, those contesting the abortion wars can preserve the façade of a black-and-white debate,” argues Ziegler, a leading historian of abortion and a law professor at the University of California at Davis. “But by telling the story of how we have redefined Roe, I hope to illuminate the paradoxes of our abortion politics and show that the pro-choice/pro-life binary has captured only a small part of how Americans think, talk, and fight about abortion.”

She tells the story through the eyes of competing figures on either side of the abortion divide — attorneys, scientists and activists. This technique is interesting but ultimately unsuccessful: The individuals are little known and not especially compelling, and the cast changes from chapter to chapter, draining the device of narrative force and leaving the reader unsure about why to care about these characters.

There is a more fundamental problem with this slender volume: its timing. As Ziegler was writing, the court had agreed to decide the fate of a Mississippi abortion law and seemed poised to overturn Roe. That much seemed clear after the oral argument in the case, Dobbs v. Jackson Women’s Health Organization. But neither the leaked Dobbs draft majority opinion, written by Justice Samuel A. Alito Jr., nor the full ruling had yet emerged. Ziegler could predict with no small degree of confidence how the play would end but not precisely what the varying characters would say in the final act. A book that focuses on one opinion without waiting for the language announcing, and denouncing, its reversal is hobbled from the start.

“A reversal of Roe will upend a half century of jurisprudence and forever define the current Court’s legacy,” Ziegler writes in her epilogue — an epilogue that, at the very least, should have waited until Dobbs was handed down last June. “What it will not do is stop us from talking about Roe. Americans certainly care about the decision because it has limited the extent to which states can restrict or ban abortion, but that is hardly the only reason. The way we talk about Roe is a window on our definitions of liberty and equality. Our conversations about it have a bearing on struggles over marriage, birth control, and civil rights, If the Court no longer recognizes a right to choose, Roe will almost certainly remain a rallying cry for those with different views about everything from race to religion.”

I respectfully dissent. Our “national obsession,” as Ziegler’s subtitle would have it, isn’t about Roe itself — it’s about abortion. Ziegler asserts that there is something particularly compelling about Roe. If the decision’s “allure is about abortion alone,” she wonders, “it is hard to explain why more recent — and legally central — abortion decisions have not had the same cultural resonance.” For instance, she notes, Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case in which the conservative court surprised observers by upholding Roe even as it was curtailed, “has never been the kind of lightning rod that Roe is.” I would posit a simpler, and less highfalutin, explanation: Roe, with its conveniently monosyllabic moniker, was an easily remembered shorthand for the larger issue. It stuck with both sides even after the law moved on. Roe was always more stand-in than obsession.

In the months since the court overruled Roe — and, with it, Casey — we haven’t been talking about either case. Rather, we’ve been embroiled in an intense and anguished conversation about what access, if any, women should have to abortion. The battleground is no longer the meaning of the U.S. Constitution or whether Roe and its progeny correctly located the doctrinal underpinnings of the right to abortion. At least for the foreseeable future, that question has been definitively, if not correctly, answered.

The fight now, as Ziegler understands as well as anyone, is state by state. In state courts (see South Carolina, where a divided state Supreme Court found that a ban on abortion after six weeks violated the state constitution’s right to privacy; see also Idaho, whose Supreme Court that same day upheld the state’s abortion ban against a state constitutional challenge). In statewide referendums (see Kansas, where voters resoundingly — and surprisingly — rejected a ballot measure that would have removed abortion protections from the state constitution, which the Kansas Supreme Court had found shields abortion rights).

And, most of all, in state legislatures — in blue states where abortion protections have been bolstered (see Connecticut’s move to expand protections for physicians performing the procedure) and in red states where lawmakers have seized the moment to enact abortion bans or restrictions unavailable to them for the last 50 years (see half the country.)

The court has spoken. Roe is overruled. The case is in the rearview mirror, Ziegler’s contentions notwithstanding. But abortion has upended and distorted our politics for decades; that shows no signs of subsiding in the aftermath of Dobbs. The larger debate continues, as unsettled and angry as ever.

Ruth Marcus is an associate editor and columnist for The Washington Post.

The History of a National Obsession