Roe vs. Wade: The End of a 50-Year Chapter

The laws also belong to cultural history. A Supreme Court decision struggles to connect to a timeless principle. But a decision is always connected, still — almost unconsciously, as if speaking in sleep — to its particular moment in national life.

Let’s think about

Roe v. Wade (1973) and in Dobbs v. Jackson Women’s Health Organization (2022) as an exercise in time-lapse photography. These decisions were, respectively, the beginning and the end of a year-long chapter of US history regarding the issue of abortion. These 65 years coincide precisely with the adult life of the older members of the baby boom generation, who were studying law when Roe won, or who were in their infancy in politics (see Bill and Hillary Clinton). Now they are easing into old age.

The Roe decision, a revolution, came at the height of the Gloria Steinem wave of feminism. The end of the years 60 and the beginning of the 60 were the seedbeds of the US culture wars — those struggles that began shortly after the passage of the Civil Rights Act of 1964 and 1965, when the conflict migrated from the field of legal battle for the cultural.

The old authorities failed. In Roe’s day, cultural elites were wrapped in a sheep mentality in the face of countercultural youth. They, who generally shied away from the draft decision, licked the wounds of the humiliating defeat in the Vietnam War, the Richard Nixon scandal (the abortion decision took place in the midst of Watergate, while the damning facts were leaked) and the Lyndon Johnson’s catastrophic government. They despised the regime of discredited old men (nothing good had happened to the country since the death of Jack Kennedy), so they begged for new and enlightened actions. Bliss was it in that dawn to be alive / But to be young was very heaven! Roe’s frailty (even Judge Ruth Bader Ginsburg found her weak as a matter of constitutional law) became yet another aspect of the era’s fiery impact. Furthermore, Roe appeared to be a victory for the young elites over the Old Believers — the silent majority that Spiro Agnew courted. Then, in 1973, Agnew had to resign from the vice presidency. It seems that in his days as governor of Maryland, he had been in the habit of accepting bribes delivered in brown paper bags.

The generational theme was ubiquitous in those days. The sexual revolution, a phenomenon of youth, had produced its natural consequences, despite the pill’s efforts to prevent such problems. So Roe was a blessing in practice. The ruling elites (in the media, in universities and the arts, in government, in corporations) had been terribly shaken by the second half of the years 60, and by their own guilt (Vietnam is only part of the story). They sought to appease the crowd of boomers , who were, after all, the ones to come, and, in the end, the winners as the country emerged from the years 60.

All these elements were part of the Zeitgeist that surrounded the Roe decision. I do not mean that the author of the decision, Judge Harry Blackmun, a Minnesota man sent to Court by President Nixon in 1970, was a hippie or a fool. He was 65 years old at the time and began his period at court as a Conservative. He would end up becoming the most liberal and (some would say) the most humane judge. But I propose that Blackmun’s reasoning and language in the Roe decision (both what he wrote and what he omitted) was influenced by the ambient cultural energies of that vivid era: by what we call “climate”.

Wisdom on the left embraces the idea that last week’s decision by Dobbs was essentially and criminally political: an act of Trumpist brutality. But the formulation is upside down. The energies of the elites boomers (dating back to the days of civil rights and the anti-war movement) have always been fiercely and theatrically political. Its victories in the years 60 were mainly achieved by political performances — dissent, disobedience, protest — rather than using the conventional instruments of constitutional process. The elected politicians (Johnson, Nixon) were their villains. The younger generations have inherited from the boomers certain anti-democratic preferences — including faith in political theatricality, amounting to hyperbole and even hysteria, which have now been amplified in a thousand ways by the social networks. Protest has become one of the most familiar and accepted forms of American theater. Women dress up in costumes from The Handmaid’s Tale and knock on the Supreme Court’s doors.

The truth about Dobbs is — or should be — an anticlimax. Anti-theatrical too: what the Court did was at least try to take it out of the hands of the baby boomers and its representatives the difficult and painful issue of abortion, and let it be democratically resolved by the legislatures of the states.

© 2022 City Journal. Published with permission. Original in English.

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