(Spoiler) Roe v. Wade: How We Got to This Point

(Posted May 5, 2022)

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Over the past few months, I was working on a historiography of Roe v. Wade. (A historiography is kind of a meta-history, a look at how the history of a subject has been written in different ways over time, rather than a history of the subject itself.) Nobody else seems to have written one. And it’d be a good outline for when the comic gets to Roe.

In my paper, I first summarized the historical legal landscape leading up to Roe. Did you know that, although technically illegal since the late 1800s, the laws weren’t really enforced? And “back-alley” abortions were incredibly rare? True! More women were having safe abortions every year, performed by qualified physicians, before Roe than even today. So how did it become an issue that SCOTUS had to decide? Either read it and find out, or wait for me to get to it in the comic!

The core of the paper is the historiography itself. “Historiography” is a kind of meta-history: instead of writing a history of how Roe came to be decided the way it was, I reviewed how historians and others have written that story. To me, that’s actually more useful, because it reveals so much more than that particular (though fascinating) story. It reveals the dramatic ways that American society itself has changed in the almost half-century since Roe was decided—and directly because of Roe! Having lived through this period myself, the changes were so gradual and imperceptible that I barely noticed. But believe it or not, it goes a long way to explaining the deep political and cultural divide that rocks our nation here in the 21st century!

There are some real eye-openers in here, at least for me. Did you know that Ruth Bader Ginsburg always said that Roe v. Wade was a bad case, wrongly decided, overbroad yet overdetailed, an instance of legislating from the bench that made everything worse? True! In fact, as early as the 1980s she firmly believed that if the Court had stayed out of it, abortion would probably have been legal across the country. (Her thoughts here, as elsewhere, have powerfully affected my own, and I have some additional thoughts to add at the end.)

There are plenty more surprises in here, sure to undermine the received truths pushed by activists on both sides of the abortion debate.

I submitted the paper a few days ago on May 2, 2022. So imagine my surprise later that evening when I saw that someone had leaked the first draft of Alito’s opinion in Dobbs, revealing that a majority of the Court had voted to overrule Roe. Talk about timing!

And you can imagine how much I’ve been cringing ever since, as people keep freaking out with bad legal take after bad legal take. It’s as if the most vocal people on both sides of the issue have no clue what the hell they’re talking about. [Edit: One week later, and the bad legal takes keep coming. If anything, they’re getting worse.]

Which isn’t surprising, of course, now that I know how we got to the present pass. But still, oh so cringeworthy.

So I figured I’d share my research with you all now, even though it’s probably a spoiler for what’s coming up later in the comic. But my brilliant and ridiculously good-looking readers deserve no less! (As an added bonus, if you print it out it makes a dandy doorstop.)