The price of privacy is to save democracy
Most people don’t realize that Roe v. Wade was the brainchild of two Nixon appointees, Justice Harry Blackmun and Chief Justice Warren Burger – the so-called Minnesota twins because they had grown up together in Minnesota. Blackmun had been counsel to the Mayo Clinic and he and Burger had corresponded about abortion rights well before Roe v. Wade came to the Court. So they were ready and waiting for it.
As a moral issue Roe was about people’s rights to control their own bodies. It has never seemed a close moral case to me. But the legal implications of litigation are often much more complex than the moral issues. Roe was controversial from the beginning even among liberal law professors. I particularly remember an article by John Hart Ely criticizing the legal foundations of Roe. And Gerald Rosenberg famously argued in The Hollow Hope that women would have had a more secure right to abort without Roe. I’m in print, in an article with my friend David Schultz, disagreeing with Rosenberg.
But I want to make a different point than the ones that Ely, Rosenberg, or David and I made, that it is important to understand the price we have paid for the freedom we believe in and what that means for the future.
When Roe was decided, the Court was mopping up some of the civil rights cases in the midst of a backlash. Many of us remember the White Citizens Councils and racist violence. But most of the country was appalled. The racists had no chance of taking over the country. They had no claim to the moral high ground, and even its opponents understood that. Segregation, lynching, denials of voting rights were basically indefensible.
But Roe was a bugle call to many religious groups. The racist and religious groups reached different people despite some overlap. Church groups had a religious fervor and an organizational engine that the racists could not achieve by themselves. Karl Rove and others put many of them together. In doing so, they created a movement that threatens the core of American self-government.
Racism clearly underlies a great deal of what is happening now in the country and a large part of support for Mr. Trump. But the religious fervor of church groups built a separate movement around gender and sexual issues before some of the religious groups merged with the racists. The combination is lethal.
By nationalizing the social, gender and sexual issues on top of the Civil Rights revolution, the Court made a large group of Americans willing to attack American democracy. It was once possible, though unfair and expensive, for people who believed in the freedom to control their own bodies to rely on the law in states like New York and Massachusetts even though they’d be wise to stay out of Mississippi, Alabama, Texas and other states that had tried to destroy the country in the Civil War. But now, freedom-loving people cannot be sure of freedom anywhere in the country when American popular government is under attack by racists who recognize no rights but their own. What was a religious movement aimed at a moral issue is now fueling an attack on democracy itself.
Let’s be clear – no dictatorship, no government based on aiming weapons at its own people, supports women’s rights, privacy rights or sexual rights. In other words, with their sights trained on popular government, everything is at risk, all the freedoms we care about. The price of protecting everyone’s control of their own bodies is that we all have to fight for democracy with everything at our disposal.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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