Fifty years of legal skirmishes have deepened the divide over Roe v. Wade

Law professor Mary Ziegler chronicles the tactics used by abortion foes and abortion rights activists in the years since the 1973 decision.

Chief Justice John Roberts frustrated abortion opponents June 29 when he joined the U.S. Supreme Court’s four liberal members in rejecting a Louisiana law requiring doctors who work at abortion clinics to have admitting privileges at a nearby hospital. 

True, the Court had rejected a nearly identical Texas restriction in 2016. But abortion foes thought the arrival of Neil Gorsuch and Brett Kavanaugh, appointed by President Donald Trump, in the years since would have produced a different outcome. 

Time will tell whether Justice Roberts will similarly thwart future attempts at overturning Roe v. Wade or if he just didn’t like the idea of the justices flip-flopping on the admitting privileges question so soon after they’d decided it the first time.

The Louisiana decision came too late to make it into Florida State University professor and legal historian Mary Ziegler’s latest book, “Abortion and the Law in America: Roe v. Wade to the Present,” a blow-by-blow chronicle of the endless legal skirmishes that have defined the post-Roe era.

Ziegler provided a nuanced history of the first decade following the Supreme Court’s 1973 decision in an earlier book, “After Roe: The Lost History of the Abortion Debate.”

In “Abortion and the Law in America,” Ziegler broadens her lens, detailing how the 50-year-long court battle over abortion has evolved from a focus on constitutional rights to a consideration of the costs and benefits for women, families, and society as a whole. Not everyone is going to want to read a tale that Ziegler herself describes as full of “hopeless polarization, personal hatreds, and political dysfunction.”

Readers may guess where Ziegler’s sympathies lie in the debate, but she deserves credit for staying largely dispassionate, or at least as dispassionate as it’s possible to be on so divisive a topic. 

The book evinces a grudging respect for abortion foes’ strategic actions and boundless creativity. Case in point: When their frontal assault – via a constitutional amendment – stalled, abortion foes shifted to incrementalism. They pushed to require informed consent, limit later-term abortions to hospitals, curtail public funding, and ensure involvement by husbands and parents of teenagers.

Then came state regulations that abortion rights advocates say were designed to put clinics out of business altogether. In 2016, the Supreme Court rejected Texas requirements that subjected abortion clinics to the same strict guidelines governing ambulatory surgical centers and required providers to have admitting privileges at a local hospital. More recently, there’s been a multistate effort to ban abortions after a doctor could detect a fetal heartbeat.

The COVID-19 pandemic brought no pause to the legal battles. And so it should come as no surprise that the issue made an appearance in the middle of the coronavirus crisis. At least eight Southern and Midwestern states sought to limit abortions as part of broader prohibitions on “non-essential” and elective medical procedures. Abortion rights advocates quickly went to court with challenges.

Ziegler offers a cleareyed view of interest groups on both sides of the debate, detailing the frequent internecine fights over legal strategy. Established abortion foes who favored litigation and lobbying opposed the clinic blockades launched by activist Randall Terry.

Abortion rights groups in Ziegler’s account come across as flat-footed and overly concerned with how their public messaging would affect their fundraising efforts. “As long as debate focused on a possible constitutional amendment, then NARAL and Planned Parenthood could expect donations to keep coming in,” Ziegler writes of the early 1980s. “Access restrictions, by contrast, did not get anyone excited.”

Supreme Court vacancies could similarly energize the base. Sen. Ted Kennedy of Massachusetts used this to his advantage in 1987 when he warned of a dystopian future in which women would be forced into back-alley abortions should Robert Bork be confirmed. Such scaremongering helped convince senators to reject Bork, paving the way for Anthony Kennedy’s eventual confirmation.

But the wheel turns. Fast forward to 2018, when Justice Kennedy’s retirement renewed the same fears about Roe’s fate. Justice Kavanaugh, his successor, provided the court’s conservative bloc with a solid fifth vote, raising the prospect that perhaps the most controversial Supreme Court decision of the 20th century could potentially be overturned.

Roe v. Wade’s future remains uncertain even after the Supreme Court delivered a surprise victory to abortion rights advocates in the Louisiana case.

Ziegler is certain, however, that neither side will be entirely satisfied if Roe is ever overturned, because neither would get the absolute constitutional protection they want. The legal battle will just shift to the states.

“Any victory, no matter how sweeping, will simply trigger a new round of fighting,” Zielger writes. Sadly, the prospect of more conflict is probably the only certainty when it comes to the future of abortion.

Seth Stern is the Supreme Court editor at Bloomberg Law and co-author of “Justice Brennan: Liberal Champion.”