The New York Times [again] misuses the history behind Roe v. Wade

By Dave Andrusko

BeforeRoebook

The New York Times Editorial Board used this book to “correct” the historical record

Let’s be clear: National Right to Life is a single-issue pro-life organization.

I start with this caution because the New York Times brought Roe v. Wade into the discussion of a controversial case currently before the Supreme Court–particularly Justice Ruth Bader Ginsberg’s oft paraphrased critique of Roe v. Wade (and its companion case, Doe v. Bolton). 

As she said recently in a discussion at Harvard Law School, instead of proceeding in “slow degrees,” Roe made every abortion law in the United States (even the most “liberal”) “unconstitutional in one fell swoop.” Justice Bader added, “And that’s not the way the Court ordinarily operates.”

This sends the Times editorial board into paroxysms or rage. The Times is not into gradualism: they want a favorable decision, not a “timid resolution.” Unlike us, they DO have a position on other social issues and don’t want to hear anything about “backlash.”

So the task of the editorial–“Justice Ginsburg’s misdirection”–is to “correct” the historical record regarding abortion and the impact of the Roe and Doe decisions on how the debate has unfolded. Why? So as to disarm anyone who (like Justice Ginsberg) gets nervous when the Court does things in “one fell swoop.”

The “correction” comes courtesy of a book written by former New York Times Supreme Court reporter Linda Greenhouse, who now teaches at Yale Law School, and Reva Siegel, also a professor at the law school. We talked tangentially about “Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling” at http://nrlc.cc/ZA1AVr.

Here’s how the Times’ uses and misuses the book, which is staunchly pro-abortion.

“[Ginsburg’s] comments misread the legal and political landscape at the time of the Roe decision and have been used to bolster the inaccurate notion that the court’s ruling on abortion rights somehow short-circuited a political process that was moving in the states to end criminalization of abortion. Some now argue that a toxic multidecade backlash against abortion rights could have been avoided if the court had given states more time to act..”

Remember, when the Supreme Court eventually reverses Roe, we will fight the battle in the states, which will decide their respective policies. Thus what the Times’ editorial board is saying is of more than passing interest. Three points:

#1. The Times and/or Greenhouse/Siegel can insist to the cows come home that Roe/Doe did not short-circuit the political process. Of course it did.  The “reform” movement had stalled and besides abortion proponents never were interested in slightly “liberalizing” abortion laws but gutting them. That’s why they went to the courts—because they had prevailed where there were going to prevail likely for the foreseeable future. So, with Roe/Doe “one fell swoop” guts all the laws and vaporizes all limitations.

In other words, what was “short-circuited” was not inevitable victories for pro-abortionists but a process that would have resulted in more defeats.

#2. Which means that the Times is right when it editorializes that “state progress on decriminalization had reached a standstill” by 1972 but only partially right in its explanation—“in the face of opposition from the Roman Catholic Church.” Pro-abortionists lost handily, for example, in regions of the country where the Catholic population was sparse. The abortion statutes had been on the books for a hundred years or more for a reason.

#3. The key argument then follows in the editorial.

“The claim that the court invited a backlash by getting too far ahead of public opinion does not hold. At the time of the ruling, a Gallup poll showed a substantial majority of Americans favored letting the abortion decision be made “solely by a woman and her physician,” with more Republicans than Democrats in favor.”

This is the usual verbal skullduggery and (to borrow from the editorial’s headline) misdirection. Roe/Doe=abortion on demand for any reason or no reason throughout pregnancy. But the American public has never endorsed that position and this finally became clear only when Gallup began to ask more nuanced questions which showed that, in fact, a majority of the population opposes the reasons for which over 90% of abortions are procured. That is why pro-abortionists always talk about a “woman’s right” rather than, say, a woman’s right to a dead baby.

The Times loves the Greenhouse/Siegel book because it satisfies and reinforces the prejudices that are such a part of their circle. The REAL reason abortion has been a lightning rod for 40 years was not because it raises first principle questions but rather because cynical Republican politicians used abortion “as a wedge issue” (not to be confused with the un-cynical use by Democrats) and “the vehemence and perseverance of abortion opponents.”

The irony (not to mention double standard) is stunning. Every cause that the Times triumphs– including the one in this editorial–has gotten as far as it has precisely because of “the vehemence and perseverance “ of those who favor what the Times favors.

Again, our issue is abortion. The Supreme Court simply decided it knew best and terminated the abortion statutes of all 50 states and pretended (don’t forget) that the decision was measured/modest/middle of the road.