After Roe

Roger Berkowitz

Hannah Arendt never tired of reminding us that politics is about power. The only way to prevent a tyranny of the majority, she argued, is by dispersing power through institutions and across the population. She valued greatly the American Constitutional tradition because it sought to create multiple and competing power centers. In part this happened through the embrace of federalism, which pitted the states against the Federal government. The constitution also put up barriers to the concentration of power through the establishment of three equally powerful branches of government. The great shortcoming of the Constitution, however, is that it did not institutionalize what Arendt took to be the most important and most quintessentially American practice of dispersed political power, the practice of  town hall governance in New England and the citizens committees and civil society organizations that emerged throughout the country. She worried that the loss of these institutions combined with the centralization of power in the country in the 20th century and the rise of an imperial presidency would, taken together, bring about not only a dangerous centralization of power in the United States, but, equally, the disempowerment of the citizenry. 

It is in this context of the diminishing power of the people to govern themselves that Joan Williams can argue that it may be high time to abandon the constitutional right of Abortion and move the fight for abortion rights from the courts to the legislatures. The Roe decision, Williams writes, may have been a mistake—as even Justice Ruth Bader Ginsberg once argued. So what are we to do now? Williams writes: 

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecturemusing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

What Ginsburg called Roe’s “divisiveness” was instrumental in the rise of the American right, which was flailing until Phyllis Schlafly discovered the galvanizing force of opposition to abortion and the Equal Rights Amendment. Schlafly wrote the culture warsplaybook that created the odd coupling of the country-club business elite with evangelicals and blue-collar whites. In exchange for business-friendly policies like tax cuts and deregulation, Republicans now allow these groups to control their agenda on religion and abortion. It’s hard to remember now but this was not inevitable: abortion was not always seen as the partisan issue it is today, nor did evangelicals uniformly oppose abortion.

Whether or not R.B.G.’s assessment of Roe was correct, the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion, which — much to the distress of the Catholic Church — they did. (At the same time, activists galvanized to ensure that, in the absence of a referendum, women throughout the country would have access to and knowledge about medication abortions.)