SIGH: that is usually my reaction anymore to seeing yet another dude whip out the "I'm pro-choice but Roe was wrongly decided/decided too soon" argument. Scott Lemieux is the champion of shooting that one down, so I tend to leave it to him. But I have to respond to Garrett Epps of The American Prospect ruining what was otherwise an interesting article by arguing that Brown v. the Board of Education was correctly timed and Roe v. Wade was too soon, because the latter had such an appalling backlash. You hear variations of this argument a lot, and the sole evidence for them is that anti-choicers are such loud-mouthed assholes and they're willing to attack the decision directly, in a way that no one is willing to do with Brown. But that's extremely limited evidence for the assertion, especially since it focuses more on what people say than what they do. It's true that people are less likely to openly condemn desegregation than abortion rights, but does that mean the backlash to desegregation (and all it means) was less severe than the backlash to abortion rights (and all they mean)? I think this deserves a look, from a number of angles.
Structural differences in the decisions. If you want to compare Brown and Roe, you should make sure you're comparing apples to apples. Initially, it may seem that you are: both decisions granted rights to oppressed people that were expected to lead to their betterment and help them obtain political, social, and economic equality. Both had political movements behind them. That's where the similarities end, however. The big difference is that Brown addresses what is functionally a structural inequality—they forced schools who had previously closed their doors to non-white students to open them up. Roe, however, addresses an individual right. An individual now has a right to choose to abort or provide abortion. Abortion was a criminal matter, and segregation a matter of public accommodation. This difference structures the backlash to it. Opponents of Brown realized right away that they could re-establish desegregation by changing the systems so they seemed compliant, but with Roe, that's harder to do. When you're dealing with people making private choices, it's much harder to control without invoking law enforcement. In a sense, they don't have a choice but to oppose Roe directly, because without being able to use law enforcement, they're kind of fucked. They've finally figured out a way to get around Roe, but it really hasn't been easy. The fact that Brown openly invoked equal protection and Roe didn't also makes Roe easier to criticize without going on the record as being hostile to the abstract principle of equality.
The backlash to Brown has been more severe than the backlash to Roe in many ways. The National Guard wasn't called to let women get abortions. In fact, what was remarkable about Roe was that it was implemented with relatively little fuss. The violence agaisnt abortion providers didn't start up until the anti-choice movement had really developed into a hardline fundamentalist terrorist breeding camp. They have to work themselves into a frenzy to commit violence. For civil rights activists, violence was a constant problem from the get-go, and it was more frequent, and it was often less tied to organized hate groups. In fact, it still goes on. Not to downplay the ugliness against abortion providers in the slightest, but it's important to understand that both decisions and the movements around them have resulted in a terrorist response.
In addition, Roe was implemented without that much of a fuss in rapid order. Law enforcement immediately stopped throwing abortion providers in jail, and doctors started hanging out a shingle without much concern of running into the authorities. Brown was basically rejected in many communities, however. (My high school didn't desegregate until more than 20 years after the decision, if I recall correctly.) And when the authorities forced schools to segregate, local governments moved in rapid response by redrawing district lines, changing tax structures, and implementing policies that basically reinstituted segregation. Private schools shot up in rapid response to take the white kids that were being yanked from school. Busing was basically abandoned. White flight intensified. The result? American schools are more segregated now than they were in the late 60s. You know, when people were still openly flouting the decision. And Brown has had huge chunks of it functionally overturned in a way that is just as, if not more severe than the restrictions that have been placed on Roe.
Meanwhile, while it's been getting harder to get an abortion in this country than it used to be, women who want one are likelier than not to get it. It's not as good as it should be, but I think abortion rights are still doing better than desegregation of the schools.
The big picture. Brown and Roe cannot be assessed in a vacuum. Both were decisions that were made in response to activist lawsuits from people who had a bigger picture in mind. I'd say it was the same picture, in fact. Anti-racism and feminist activists wanted a world where the group they were advocating for were equal to white men in terms of education, career, personal freedom, personal stability, wealth, and access to those transcedent aspect of human life such as reputation, joy, creative freedom, role models for aspirational purposes, that sort of thing. You know, equality. Both decisions were seen as major moves in that direction. Brown addressed education inequalities that fed into economic and social inequalities. Roe addressed the way that pregnancy and childbirth are used to constrain women's economic and social opportunities.
Again, I have to look at the situation and think feminists have been allowed to go further in their goals. Women's status relative to men has improved more than black people's status relative to white people's. It's a complex question, of course—after all, half of black people are also women, and racism is different than sexism, so it's really hard to measure. One the measure of income, it's clear that race hurts more than gender: black people make 62% of what white people do, while women make 79% of what men do. I believe this is a sign that desegregation has faced more backlash than reproductive rights. Much of what made it hard for women in the past to get access to educational and employment opportunities was the assumption that they would get pregnant and be forced to drop out or downsize their careers in order to get married and have babies. That expectation has been curtailed greatly, especially for average Americans. Women can time their pregnancies and limit their family size, which gives them a great deal of control in the rest of their lives. But black Americans continue to be pushed out of educational and employment opportunities that would help make that income number more equitable.
It's true people are more willing to say grossly sexist things in public than grossly racist things (though the election of Obama has shifted that), but I think a larger look beyond what people say and what they do will indicate that the situation is more complicated than that.
What does this all mean? Well, it sure as hell doesn't mean that Brown was wrongly decided. What it does mean is that we can't judge a court decision granting human beings their full rights based on our fears of a backlash. Often, the only way to change the status quo is to force a confrontation, and courts granting rights are a good way to do that. Just quit pissing on Roe. It was a good decision and it came at a time that the country was actually supportive of abortion rights. The backlash against is shaped by the trajectory of women's gains differing from the tragectory of African-American gains, but reading the tea leaves of specific court decisions isn't really all that illuminating as to why.