an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Here’s the paradox about Sarah Palin: much as she would go out of her way to deny it, she is who she is because she’s the beneficiary of both the rhetoric and the reality of choice. I don’t just mean the obvious—that a self-described hockey mom, small-town mayor and short-term governor of state whose population is less than that of the city of San Francisco --can be in the running to be a heartbeat away from the Oval Office. (And given that McCain, if elected, will be the oldest first-term president and a cancer-survivor to boot, that heartbeat cliché has a little more resonance this time around than is usually the case.)
It’s more that she’s been able to make choices in realms that were unimaginable in the years before Roe v. Wade. Not just in the realm of work and family, but in many other areas, Sarah Palin’s life has been deeply shaped by choices Roe made possible, choices that are probably invisible to Palin and to many Americans as well.
What militantly pro-life Palin would deny is that abortion and the pill, as the Harvard economist Claudia Goldin has shown, were the keys that opened up higher education and the professions to women. Not just in the obvious ways, so that you could time your fertility and your education without sacrificing either, but in subtle cultural ways as well. When I was a graduate student in 1970 at Yale, I was denied a fellowship because, as I was airily told, I just might get married and have children. Five years later, no department chair in the Ivy League would have said that with a straight face, because Roe made clear that while women might very well get married and have children, we’d do it the way men did—when it worked for us and fitted into the larger trajectory of our lives.
Or take Palin’s new baby, the one with Down syndrome. I’m old enough to remember when it was the norm to send Down babies to institutions where warehousing, neglect and a refusal to remedy reasonably simple physical problems compromised these children’s abilities and often their very lives. Now, paradoxically, because parents affirmatively choose in many cases—as Palin reportedly did—to continue a pregnancy with full knowledge that a Down syndrome baby is on the way, parents and society alike increasingly treat children with Down syndrome as full members of our society, rather than as unfortunate accidents to be whisked out of public view. Again the paradox of choice: those parents who do not feel capable of taking on the challenges-and rewards—of having a child that’s “different,” opt out by choosing abortion, but those who see themselves as equal to the task demand respect and support.
Or finally, take Palin’s 17 year old unwed daughter, Bristol. Once again, abortion has changed the cultural, social and legal world in which Bristol’s pregnancy takes place. When out-of-wedlock pregnancy was an accident, something over which women had no control, it was shameful. Women my age have endless stories of the friend who sought an illegal abortion in the dark streets of Tijuana; or was sent away to the Midwest for a sudden “vacation;” or rapidly married someone in a relationship often fatally burdened by the circumstances that brought it into being. Conservative commentators bewail the lack of shame attending unwed pregnancy these days, but whether they will say it out loud or not, abortion, by making pregnancy a choice, has eroded the culture of shame that once surrounded it.
I don’t mean to sound like an unregenerate Pollyanna. Choice brings with it the obligation to choose, and as Erich Fromm pointed out, the temptation to escape from freedom is a powerful one. Cognitive psychologists have echoed Fromm’s point: more choices make us more anxious.
Which is why Palin is probably the perfect woman of her era. A woman whose life is shaped by choices fought for and won before she was a teenager, who sees no relationship between intimate choices she and her family take for granted and hard political struggles over the past century, now casually aspires to take those choices away from her fellow citizens.