Five days ago, Politico magazine published a leaked draft opinion from the Supreme Court in the case Dobbs v. Jackson Women’s Health Organization. While this opinion was only a draft, Chief Justice John Roberts confirmed that it is authentic. So it is always possible that the final decision might look very different, but you probably shouldn't bet your life savings that it will.
The leaked draft has caused a lot of noise in American society, to say nothing of our journalistic and political-commentary industries, because—as written—it would overturn Roe v. Wade and Planned Parenthood v. Casey, and might endanger the legal presumption of a right to privacy. It's hard to characterize the impact of such a ruling, except to say that it would change some of the fundamental legal assumptions that have undergirded American society for at least the last fifty years. Indeed if the right to privacy is eliminated root and branch, the time span in question will be longer than that, because the right to privacy was implied in the decision of Griswold v. Connecticut (1965)—and perhaps even in Pierce v. Society of Sisters (1925), albeit in what might be called (you should forgive the expression) an embryonic form.
But it is safe to say that Roe v. Wade itself has caused a lot of noise in American society ever since it was decided, and this on several levels. At the very least, there are many who have attacked the decision vigorously on substantive grounds, because they wish the outcome had been different; and meanwhile a somewhat smaller group has criticized the decision on legal or technical grounds, because (regardless what outcome they would have preferred) they think that the justices made a mess of the argument. On the other side, there are also many people who have defended Roe every bit as as vigorously. (So far as I can tell, all of Roe's supporters are motivated by the substantive outcome of the decision; to date I have heard of no one moved to tears by any elegant beauty found in the argument.)
I don't propose to argue any of these points.* What I want to discuss is a feature of the Roe decision that hasn't gotten much air time, but that is in many ways responsible for the tumultuous arguments which have wracked American society ever since it was handed down. In an unexpected way, the decision in Roe v. Wade has been bad for the supporters of legal abortion and has crippled their movement. If I were an activist in support of legal abortion (which I'm not), there is at least one respect in which I would welcome the overturning of Roe so that we could replace it with something better.
What do I mean?
Abortion law in the United States
Think back to the time before Roe was decided. The first statute banning abortion anywhere in the United States was in Connecticut in 1821, although there had been some opposition** to abortion in the English Common Law before that time. By 1900, every state had some kind of abortion legislation. Interestingly, these laws had a variety of motivations, which were not always clearly distinguished from each other: "One ... was to preserve the life of the fetus, another was to protect the life of the mother, ... and another was avoid injuring the mother's ability to have [other] children [later]." (It should be noted that some of these motivations appear to have been pragmatic reactions to the poor quality of early medical practice.) As the twentieth century wore on, the pendulum began to swing back the other way: by 1971, abortion was available legally and on demand in Alaska, California, Washington, D.C., Washington state, Hawaii, and New York. (For all this history, including the quotation, see the article "Roe v. Wade" in Wikipedia.) In other words, from the perspective of those who supported legal abortion, progress was being made but it was slow.***
How to achieve social change
But normally any change in social attitudes is slow, and it always requires patient work on the part of the advocates of change to sell it to the rest of society. Usually there will always be a small remnant who remain unconvinced no matter what; but once the advocates of change have convinced enough people—either a majority or else a large enough minority to sway the large group in the middle who really don't care either way—then the change can become effective. And any change which comes about this way is stable. It is not likely to swing back to the status quo ante, because there is no constituency large enough with a stake in reverting. Also, bringing about a significant change in social attitudes is hard work. This is another reason that, once a change has really taken root, things aren't likely to slide back to the old ways. Once the change has really taken root, changing back is just as hard as the initial change was at the beginning. Most advocacy groups will be scared off by the size of the challenge.
In a political sense, the technical term for this process is grassroots democracy, and it is fundamental to the American system. It is also, as noted, a lot of work. But when it succeeds (and it doesn't always), nothing else can stand up to it, for the reasons I just described.
There are other ways to make a change irreversible, but not many. When slavery was abolished, there must have been many who were privately unreconciled to the change; but they had just lost a catastrophic war, and the pro-slavery position was ever after linked in the popular mind with treason and rebellion. When the New Deal was enacted, there were certainly active politicians who opposed it,**** to say nothing of the citizens they represented; but the political coalition forged by Franklin Roosevelt was so successful that it was fifty years before any challenges stood a chance of being taken seriously.
You could argue that Roe v. Wade has been in place for half a century just like the New Deal, so there's really no difference between them with respect to political effectiveness. But you'd be wrong. During the forty-eight years from 1932 to 1980, criticism of the New Deal was almost unheard-of; the few serious politicians who carped about Roosevelt's "tyranny" or "socialism" mostly lost elections by wide margins, and the non-politicians who expressed the same opinions were typically cranks. During the forty-nine years between 1973 (when Roe was decided) and today, public argument over legalized abortion has been consistently acrimonious and sometimes violent; and ever since 1976 the Republican Party platform has included a plank opposing legal abortion. Unlike opposition to the New Deal, opposition to legal abortion has never in all that time been the province of losers and cranks.
What went wrong? Why has the issue been consistently so contentious?
Failing to build a coalition
Naturally there are several answers. Part of the answer is that the Religious Right weaponized opposition to legal abortion in the late 1970's, as part of a strategy to acquire political power and influence. (Randall Balmer discusses the unexpected complexity of this history in a number of places, for example in this article here.) Ironically though, at the same time that men like Paul Weyrich and Jerry Falwell were building a political coalition to support the causes they favored (and in particular to oppose abortion), the supporters of legal abortion did not build the same kind of coalition on their side. To be sure, there were specific organizations like NARAL devoted to defending the access to legal abortions. But it was less clear that there were any broad political constituencies in American society which supported abortion rights with the same fervor that the Religious Right deployed to oppose them. If asked, the supporters of legal abortion would have said that they fought on behalf of "all women," but this answer was plainly untrue as there were many women who opposed legal abortion.
To be clear, I do not argue that building a successful coalition in favor of legal abortion would by itself have made the issue less contentious. There were strong coalitions both for and against slavery, and in the end we had to fight a war over it. But abortion is not slavery. If a coalition supporting abortion had been powerful enough, very likely it could have dominated the discussion the way the New Deal coalition did. If a supporting coalition had been powerful enough, the abortion issue would never have looked like a tempting target to the Religious Right; Weyrich and Falwell and the rest would have gone after something else. What made the issue of abortion such an appealing target for the Religious Right was precisely that its political support was weak enough to be challenged.
The key flaw
But this answer isn't enough. It just pushes the discussion back one step. Why did the supporters of legal abortion fail to build a national coalition to back their side? Why did they allow their side to remain weak and vulnerable? Why didn't they engage in the slow, steady work of grassroots organization that would have allowed them to sell their position successfully to the whole country? Already they had successfully changed attitudes in half a dozen states. Why didn't they keep going?
Because they won.
Because the Supreme Court handed them a victory with Roe v. Wade. And after that they didn't have to sell anything to anyone any more.
But the victory came too soon. The battle was over before the supporters of legal abortion had a chance to engage with the main forces of their opposition. And as a result the opposition was (so to speak) undefeated on the battlefield of public opinion, even though they lost in the courtroom.
The supporters of legal abortion won the fight for the law before they had a chance to win the hearts and minds of the citizens. And so this premature victory left the movement permanently weakened.
Waiting for the grown-ups to intervene
The after-effects of this victory have hobbled the Democratic Party ever since.
One of the most significant after-effects has been that activists who support progressive***** causes have focused more and more on winning in courts rather than in legislatures. As a consequence (just as an example) confirmation hearings for Supreme Court justices have become bitter partisan fights, where as recently as 1986 Antonin Scalia (nobody's idea of a middle-of-the-road justice) was confirmed 98–0. But the assumption, at least among progressives,***** is that courtrooms are now where the action is. While there are some feints made towards favorable redistricting and getting out the vote on Election Day, the dominant strategy seems to be to let the state and federal legislatures pass whatever bills they like, and then to sue in court to have those bills overturned.
I'm not the only one who thinks this. Back in August 2019, a blogger named Jane analyzed the observed behavior of the Democratic Party in terms that are almost identical, although she references the career of the Rev. Martin Luther King Jr. as a proximate cause, rather than Roe v. Wade. I will quote her at some length because her account is so clear and trenchant. This text comes originally from her Tumblr blog here, although I first encountered it as an extended quote in an article by John Michael Greer here:
I think the narrativized, reinvented MLK that white liberal establishments hold up as an icon is responsible for this shift away from politics to (political) eschatology. Because in order to produce a MLK that was not threatening to the status quo, white liberals had to come up with some reason for his success other than mass mobilization. King’s nonviolence, of course, was a tactic intended to take advantage of breakthroughs in mass media that the state was not used to dealing with. Its audience was the masses, the people who would be shocked by the one-sided violence on their television screen.
The reinvented MLK, however, practiced nonviolence because it was morally right. His audience was not the masses but was rather God, or (in slightly more secular, though no less teleological, terms) the arc of the moral universe. This MLK did not win because he was politically savvy; he won (and it is important in this conception that he did win, regardless of the messy topic of just what exactly he won) because he was right, because he was moral. He proved that he was just, and the moral arc of the universe accordingly bent in his direction. Good triumphed over evil not because it mobilized people but merely by virtue of being good.
And this is what modern liberal politics has inherited — the belief that being right is more important than winning, because somebody, be it the Supreme Court or God, will throw the penalty flag and everything will be set aright. Democrats aren’t trying to win elections, they’re trying to build cases as to why, upon review, they should have won, why they’re right, so that when the ref reviews the play it’ll be awarded to them. But it’s important to note the origins of this approach. White liberal establishments created a Civil Rights Movement narrative that disavowed the masses (because revolutionary populism is dangerous but how could they claim to support civil rights gains if they condemned all of the civil rights leaders and the means by which those gains came about?) and then promptly fell in love with their own fiction. They told each other and us over and over again about how MLK won because he was right, because he was just, and they told it so much that they began to believe it themselves. They began to see victory as something that just sorta happens when you’re right, maybe not immediately, but inevitably.
A losing strategy
It feels almost churlish to point out that this is a losing strategy. You can't always trust that the grown-ups will swoop down onto the playground to set everything right. Supreme Courts come and go, after all. If you have pinned all your hopes for a Better Tomorrow on a fluctuating body of nine people, sooner or later statistical probability is going to catch up with you and there will be a majority who disagree. Nine people is not a large enough sample to protect you from the effects of randomness.
It's a losing strategy for another reason too. Court decisions are actually very weak tools for making changes in the world. Everyone has heard the story (perhaps apocryphal) that after the Supreme Court ruled against the State of Georgia in Worcester v. Georgia (1832), Andrew Jackson is supposed to have said, "John Marshall has made his decision; now let him enforce it!" In modern times, everyone has heard that public schools were racially desegregated as a result of the decision in Brown v. Board of Education of Topeka, Kansas (1954). But in fact very few schools were desegregated after the Brown decision, or for another sixteen years thereafter. Wide scale desegregation did not come until Richard Nixon made it a priority for his administration, and put the significant weight of the Presidency behind it. (See here for a detailed reminiscence.) Progressives should reflect on this history, and then put more effort into electing Senators, Congressmen, and Presidents. Leave the Supreme Court as an afterthought.
It's a losing strategy, finally, at a symbolic level, because striving to achieve your agenda through the power of appointed, unelected authorities means turning your back on the democratic process. Look at the very word court:****** an appeal to the courtroom is ultimately an appeal to a king. As far as the rhetorical battle is concerned, it might as well be an appeal to King George to overrule the silly colonial assemblies that don't know what's good for them. There is no way that such an undemocratic and antipopulist model can remain victorious in the United States for long.
We are Americans. We are supposed to understand how to carry out self-government. We can do better than this. If, indeed, Roe v. Wade is ultimately overturned by the current Supreme Court, the supporters of legal abortion should not despair, but should take it as a temporary setback and an opportunity to tackle the fight the right way.
Come on. We've got this.
__________
* Of course I have opinions. What I mean is that I don't want to discuss my overall opinions in this essay. Everybody's got an opinion, and you probably like your own better than you like mine anyway. But if you really want to know, my opinions are as follows.
On the substantive level, I think an absolute ban on abortions is impractical because there will always be a small number of bizarre and dangerous medical situations that cannot be handled safely in any other way. I am intrigued by the Donohue-Levitt hypothesis that legalized abortion in the 1970s explains a substantial part of the crime decline in the 1990s. (See also this discussion here.) And I have already argued in a post two years ago that there are natural moral purposes in sexual activity that have no connection to procreation. So on the whole, on the substantive level, I think some kind of access to safe medical abortion does more good than harm. But I don't mean to hold my opinions ideologically, and I am willing to consider "corner cases" where the reasoning gets iffy.
On the legal or technical level, I am not qualified to judge how good the reasoning behind Roe was, but I have to say that the way it was communicated to the public was appallingly clumsy. What we heard was that the right to an abortion was found lurking in the penumbra of the Constitution.
—Wait, what? Which article is the penumbra in?
I am reasonably sure that, to those who already opposed Roe on substantive grounds, the idea of being governed by a penumbra appeared much the same as being governed by a Magic 8-Ball. Reply hazy; try again later.
** Judicial, non-statutory
*** I specify that this is "from the perspective of those who supported legal abortion," because perspective is the only thing that distinguishes "progress" from "regress."
**** Among them, for example: Herbert Hoover, Robert Taft, and (a little later) Barry Goldwater.
***** Here and in what follows, I use the word "progressive" the way it is commonly used in the United States today, both by those who consider themselves "progressive" and by their opponents. I am aware of the deep theoretical criticisms that have been leveled at the whole concept of "progress" (see, e.g., the work of John Michael Greer in this article and many others). But in a political sense, the word "progressive" serves as a tag to identify a certain bundle of public policy proposals in modern America, and the people who support them. Both supporters and opponents tend to agree which policies and which people count as "progressive," so the term is comparatively objective and unambiguous. It is in that sense that I use it here.
****** "The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes." (From the Wikipedia article "Court.")
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