Ziegler on the Price of Privacy

Mary Ziegler, Florida State University College of Law, has posted The Price of Privacy, 1973 to the Present.  Here is the abstract:

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly became vulnerable, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling arguments for reproductive rights and to pursue a broader reproductive-health program.

Other scholars have studied the social movement activists and attorneys who helped to shape pre-Roe advocacy and to influence the Court’s decision. This project is unique, however, in offering the first explanation of the emergence, ascendancy, and persistence of crucial post-Roe choice-based claims that have defined the law and politics of abortion in the past several decades. This history suggests that Roe alone was not responsible for the emergence or the staying power of the choice framework. Since 1973, abortion-rights activists prioritized choice arguments not only because of Roe but also because of the need to respond to antiabortion tactics and to changing political opportunities. Ordinary politics reinforced rather than undermined the choice framework.

Based on this history, the Article argues that de-constitutionalizing the abortion issue would do little to dismantle the choice-based frame. At a minimum, the abortion-rights movement will have to do more to make abortion, and the women who benefit from it, more visible and sympathetic to the public. Removing the Constitution from the equation will do little to change this basic dynamic.

The full article is available here, at SSRN.