Harvard Law Symposium on Roe 50 Years Later

Hundreds gathered last week for a two-day conference to commemorate the 50th anniversary of the landmark Roe v. Wade decision, guaranteeing the right to abortion, which was overturned by the Supreme Court last June in Dobbs v. Jackson Women’s Health Organization. The event, hosted by the Harvard Radcliffe Institute, considered the transformational history of Roe and looked at what may lie ahead.

I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law and deputy dean at Harvard Law School, said he expects there will likely be geographic, moral, and technological “frontiers” where the anti-abortion movement, which believes a fetus has rights that are not usurped by the mother’s rights, will take its legal battles next.

States that permit abortions or do not prosecute those who come from states where abortion is illegal may be targeted by activists. While some, including Justice Brett Kavanaugh in Dobbs, are skeptical that any ban on interstate travel for abortions will hold up to scrutiny, it’s “far from a clear constitutional matter” and is likely to become an issue in the next 10-15 years, said Cohen, who is also faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.

Evelynn Hammonds, Barbara Gutmann Rosenkrantz Professor of the History of Science and of African and African American Studies at Harvard, noted that to understand the imposition of governmental control on women’s bodily autonomy, it’s important to first review “the long and persistent efforts to control the fertility and reproduction of Black women by white men” throughout American history.

“Unlike white Christian men, the historical record shows that migrants’ procreation has been forced, monetized, and monitored since they arrived on U.S. shores. This did not unfold organically or naturally; it was done for specific reasons, to support specific goals, that should be named. Naming the acts that led to and sustained the denial of bodily autonomy to certain women is key to understanding where we are today,” said Hammonds, who is also professor of social and behavioral sciences at Harvard T.H. Chan School of Public Health.

Though many were critical of the Dobbs decision and worried about the effects it could have on women’s physical and mental health and socioeconomic agency, others felt Roe supporters have given too little consideration to what is owed to the developing fetus.

Erika Bachiochi, a fellow at the Ethics and Public Policy Center, a conservative Washington, D.C., think tank, said 19th-century feminists’ views of the interconnectedness that a pregnant woman has with the developing child inside her have much to teach us today, where society and the law under Roe often treats pregnancy “as a woman’s inconvenient and burdensome choice.”

“In my view, a half-century of privileging abortion rights as a means to women’s equality, liberty, and well-being has obviated the need for a total cultural, familial, and economic transformation on behalf of mothers, especially poor mothers and their children,” she said.

Because it raises so many fraught questions about government, religion, health, and the judiciary, abortion has morphed into a kind of “shorthand for our deepest divides,” far removed from how most Americans actually view abortion, said legal historian Mary Ziegler, a UC Davis law professor who co-organized the conference with Jane Kamensky, Carl and Lily Pforzheimer Foundation Director of the Arthur and Elizabeth Schlesinger Library on the History of Women in America and the Jonathan Trumbull Professor of American History at Harvard.