Beyond "Choice": Roe v. Wade as U. S. Constitutional History

I teach a general education course in U. S. constitutional history to undergraduates, the majority of whom are not history majors and, in fact, do not have much knowledge of—nor do they have a particular interest in—either women's or gender history. The occasional student is actively hostile to both. But Roe v. Wade (410 U. S. 113, 1973) is a case that virtually all students recognize, even if they do not know exactly what it is that the Supreme Court actually said. Not infrequently, they view Roe either as a case about a narrowly (and often imprecisely) defined "feminist" issue that does not concern them directly or, alternatively, as a ruling that concerns them only in the abstract sense that they might one remote day be faced with a personal decision about whether or not to carry a pregnancy to term. Students do not often begin my courses regarding reproductive rights as having the same fundamental significance in U. S. constitutional history as, say, freedom of speech or the free exercise of religion, and in this sense they are no different than large segments of the American public. What is more, today's traditional students are coming of political age at a time when sound-bite-as-discourse has impoverished our political vocabulary, with the unfortunate consequence of reducing the complexity of the key constitutional issues underlying Roe to the trope of "making a choice," something akin to consumers' freedom to choose among brands of toothpaste at Walgreen's drug store. My response has been to reposition Roe in my teaching as a case that dealt with principles that are integrally imbedded within American history rather than marginal to it. The case represents a specific and important landmark in a larger story about the rights of individuals—men and women—to make determinations regarding their own bodies, free from interference by the state. It is thus inextricably linked to the more familiar discourses of personal liberty that are woven throughout the grand narrative of U. S. history.

The true significance of the claims Roe brought before the nation's high court becomes more apparent, I think, only after students have examined the historical picture prior to 1973 and gotten a glimpse of what the United States looked like when individuals—both male and female— lacked recognized rights to make choices regarding their own bodies. The institution of chattel slavery and the common-law notion of married women's coverture serve as the two most obvious instances in which individuals lacked rights to bodily self-determination. But, even as these strictures were breaking down in the late nineteenth and early twentieth centuries, the power of states to enact measures that infringed upon bodily autonomy was actually increasing.¹ Several important cases in the first half of the twentieth century challenged this expanding authority on the grounds that such laws violated the Fourteenth Amendment's protections of individual's life and liberty from infringement by the states. Prior to mid-century, however, such claims rarely received the backing of the courts. Instead, the states' power to protect the health and safety of the general public at the expense of individual rights was repeatedly validated.²

Using case law has the pedagogical advantage of providing a logical framework for demonstrating how concepts of bodily autonomy rights are historically constructed and thus change over time. Recovering the stories underlying the cases that come before the U. S. Supreme Court can be a fascinating endeavor for students, allowing them to really sink their teeth into the crucial constitutional issues that arise from ordinary people's lives. What is more, these cases leave behind proverbial mountains of documentary evidence that an instructor can draw upon for use in the classroom, including legal briefs, tapes and transcripts of oral arguments, and the texts of the opinions themselves. This material is readily and inexpensively available in government documents and law libraries, reproduced, usually as excerpts, in numerous commercially published casebooks and edited documents readers, and easily accessible in both excerpted and full-text formats on a range of internet...