The Baby and the Bathwater

The circumstances that gave rise to the Supreme Court’s 1973 decision in Roe v. Wade, to establish physicians’ right to counsel the possibility of medical abortion, are not easy to recall.  There was so much turmoil on the surface of things fifty years ago – Vietnam, Watergate, Richard Nixon’s landslide re-election. In retrospect, one skein of developments stands out as more momentous than the rest:  the rapidly changing opportunities available to American women.

For that reason, there is no better place to start than Claudia Goldin’s Career and Family: Women’s Century-long Journey toward Equity (Princeton, 2021).  A distinguished economic historian, Goldin organized her account around the experiences of five roughly-defined generations of college-educated American women since the beginning of the twentieth century.  Each cohort merits a chapter.

The revolution, Goldin finds, was a technological one:  the advent in the Sixties of dependable methods of birth control – the Pill, the IUD, and the diaphragm.  Women began re-entering the workforce on new terms. After explicating the traditional logic of early marriage – perhaps timeless, evolutionarily speaking – Goldin writes:

Armed with the new secret ingredient, the recipe for success became, “Put marriage aside for now. Add gobs of higher education. Blend with career. Let rise for a decade, and live tour life fully. Fold family in later.” Once this happiness formula was adopted by large numbers of women, the age at first marriage increased, even for college women who did not take the Pill. That reduced the potential cost of long-run cost of marriage delay for any one woman.

With that, the 7-2 majority decision in Roe v. Wade was almost an afterthought.  The Supreme Court doesn’t just follow the election returns; they have families, and read the newspapers as well. .

Since 1982, the Federalist Society, conservative legal representatives of that year’s “Silent Majority,” have been working to reverse the decision by fundamentally transforming the judicial interpretation of the US Constitution.  You can read historian David Garrow’s triumphant summary of these “originalist” and “textualist” movements here.

Meanwhile, a Boston Globe story yesterday (subscription required) about Sir Matthew Hale, the seventeenth-century jurist whom Associate Justice Samuel Alito cited more than a dozen times in his 98-page draft opinion, makes equally interesting reading.  Reporter Deanna Pan may have surfaced another plausible reason the draft was leaked.

If experience is any guide, the next twenty-five years will see an avalanche of work on the other side of the argument, produced by legal scholars, historians, economists, and other social scientists. Quite apart from whatever the election returns in the coming years might be, a movement to explain changing values and preferences has been underway in economics for years. New views on the joint evolution of institutions and cultures are entering the mainstream.

The Supreme Court is one of those institutions – central banks are another – to which democratic societies have delegated decision-making powers in the hope that in difficult times they will make more far-sighted policy choices than those of the current majority.

The Court decided Roe v, Wade correctly in 1973. In all likelihood, it will sooner or later rise to the occasion again, In the meantime, stay calm; plan ahead, and cope with consequences if the expected reversal eventuates. Don’t throw the Supreme Court baby out with the bathwater.

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