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January 24, 2005

On Why Roe was Bad for Progressives

In the discussion of evolution and judicial activism, the discussion jumped (inevitably) to Roe v. Wade. The fact is that no less a feminist than Justice Ruth Bader Ginsburg believes that Roe was bad for abortion rights because of its extreme judicial activism and the countermobilization it created on the Right.

Scott Lemieux -- whose Ph.D. on the subject I've been reading for this reply -- responded in a series of posts - here, here, and here. While he makes some good points, I think he is ultimately wrong.

Before I get to Scott's subtler points, let me lay out the basic points of the progressive case against Roe. I went into more detail in this post back in 2003, but here are the basic points:

Legislative reform was effective: Most of the increase in legal abortions in the US happened before Roe was decided. Between 1966 and 1972, legal abortions increased from 8000 to 586,000 per year. After Roe, the annual increases in legal abortion would be rather minor (21% in 1974, 15% in 1975, 14% in 1976, and so on).

Roe fed the rise of the New Right: Of course, as Scott argues, that mobilization was already happening in response to legislative changes, but Roe helped feed a particular form of populist anti-elistist rhetoric that helped merge abortion activists with other conservative groups created a unified rhetoric against "liberal elitism."

Roe's narrow rhetoric of privacy cut abortion rights off from broader Feminist mobilization: The rhetoric of the decision emphasized government withdrawing from decision-making over abortion, instead of emphasizing women's equality, so government withdrawing from funding it -- the Hyde Amendment -- was a natural part of the post-Roe rhetoric.

Roe broke feminist coalitions between rich and poor women: Economically conservative women no longer had to choose between their right to abortion and GOP economics; they had their social liberalism through the courts, so they were free to support the new Republican coalition (who were free then to cut off Medicaid funding for the abortions of poor women).

Roe demobilized pro-choice forces: In many ways, this was the key result. With abortion protected by the courts, abortion became a less salient issue for potentially pro-choice voters, so they stopped extensively campaigning and educating the public on the issue. Not only was the Right counter-mobilizing against Roe, they were facing a largely demobilized opposition.

So what is the response in defense of Roe?

The strongest argument against Roe's baleful effect is the argument that abortion liberalization had stalled in the year or two before Roe due to religious countermobilization that had preceded Roe. Now, this is a real argument, but no one argues that legislative changes don't lead to resistance by opponents and occasional setbacks. After the massive liberalization of abortion laws in the late 60s and early 70s, a year or two pause in abortion rights advances is hardly a strong argument for the permanent strength of the religious right before Roe.

The case against Roe is that the result of judicial activism was a particularly toxic form of counter-reaction that fused normal political disagreement into a mode of rightwing conspiracy thinking that fused social conservatives into a much broader New Right alliance. Not able to hope to change abortion laws at the ballot box, anti-abortion religious voters could be encouraged to understand the situation as one of liberal tyranny that reinforced a whole host of other cultural frustrations.

And this was matched by the splintering of the pro-abortion rights coalition -- now able to go their separate ways at the ballot box due to court action.

Comparisons with other countries: Scott in his Ph.D. makes some interesting comparisons of the experience in the US with the United Kingdom -- where abortion liberalization was achieved completely by legislation -- and, more significantly, with Canada -- where courts imposed abortion liberalization with far less of the reaction than in the US.

The problem with such comparisons is that you can't talk about reactions to court power in the abstract. In the 20th century, the US went through a series of populist rebellions against court power -- first in the New Deal by the Left against a rightwing court and then in the 1950s by the racist Right against a liberal court. This meant that working class families distressed by abortion rulings had a whole cultural vocabulary of anti-court economic and racist populism to draw on in condemning the courts.

If you compare the US to Canada -- or to almost any other country with judicial review -- the difference is that US courts have far more power, since their decisions are almost impossible to reverse. In Canada, the parliament can override any court decision by a two-thirds vote, while in the US, it requires not only such a supermajority vote but a laborious process of approval by three-quarters of the states. If courts in the US had a veto on legislation subject to simple override, similar to the President's veto, the rhetoric on court power in the US would be quite different. The Court would just be another political player subject to check by the other branches.

For progressives, the historic calculus of using court power is thoroughly against its use on balance. That Court power has had baleful effects in American history -- from Dred Scott helping to precipitate the Civil War to the post-war Supreme Court's destruction of Reconstruction to the conservative court of the early 20th century blocking basic humane reforms of the economy. The reality is that the positive exercise of court power, such as in Brown and Roe, were largely unneeded since both desegregation and abortion rights were increasingly popular and movements for reform were already in motion.

And in modern politics, even with "good" decisions, we lose more from both backlash and from demobilization of our own supporters than we gain in positive social change.

Posted by Nathan at January 24, 2005 07:59 AM