The discussion which should follow the Supreme Court decision on abortion.

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This is the second part of a review of The Rights of Women: Reclaiming a Lost Vision, by Erika Bachiochi. The first part is here.

When the US Supreme Court in its 1992 Casey decision doubled down on Roe v Wade, the court majority claimed that “an entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society”.

What was Roe’s concept of liberty? That of the autonomous individual, the hero of American libertarianism and a parody of the self-governing (virtuous) individual of the founding era.

Roe’s heroine is the one who “chooses”, behind the veil of “privacy”, all by herself, what to do about an “unplanned” child she has conceived.

Her options are stark. Will she keep the baby and risk her marriage or career, or both? Is she prepared to see the last of her uncommitted partner, and face years of poverty and loneliness as a single parent, trying to balance work/welfare and care of her child?

Or will she “get rid of it” and simplify her life, make progress in the job market – and hope for better circumstances next time around?

Since 1973 American has, through its laws and economy, told women that they are on their own in this matter. Caring for children is a choice, a private thing. Society is interested in women as workers, not mothers. Workers just like men.

As Erika Bachiochi observes in her book, The Rights of Women: Reclaiming a Lost Vision, “When Casey reaffirmed the ‘right to choose’ abortion, employers and other public institutions remained ‘free’ to be unchanged by women’s participation in them.”

In support she quotes a pro-choice law professor, Deborah Dinner:

“The discourse of reproductive choice continues to legitimate workplace structures modelled on the masculine ideal [with no caregiving responsibilities] as well as social policies that provide inadequate public support for families.”

“In the end,” adds Bachiochi, “it may just be that an unmitigated right to abortion serves of profit-driven market above all else.”

How did “women’s rights” end up in this blind alley?

In the second-last chapter of her book, Bachiochi explores the work of Harvard legal luminary Mary Ann Glendon to throw light on this question.

Family law in America vs Europe

Glendon, whose early experience of single parenthood was formative for her views, traced the source of the problem to the libertarianism of the Anglo-American rights tradition and its effect on family law and culture.

By the mid-twentieth century, she found, “self-sufficiency” had become the guiding principle in US family law, leading to the removal of legal protection from the family unit (through, for example, no-fault divorce) and to the idea of marriage as, “an association of individuals”.

In Europe, things were different. In many countries the civil law, reflecting classical and Christian ideas about human dignity and the common good, had more to say about spousal rights and duties, and envisaged marriage as a community of persons for the nurture of children. As women won equal status during the twentieth century, marriage law was not emptied of content as in the US.

In most modern European constitutions the basic social institution of the family (and often the status of motherhood itself) remained protected, as it had been in the 1948 UN Universal Declaration of Human Rights. Thus, in 1970, the Federal Constitutional Court in West Germany stated:

“The concept of man in the Basic Law [i.e. the Constitution] is not that of an isolated sovereign individual; rather, the Basic Law has decided in favour of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing on a person’s individual value.”

Though European countries have since bought into autonomy and individualism, most have far better supports for families. They are also more conservative regarding abortion.

A dignitarian vision of marriage

Glendon pointed out that while American law advanced women’s rights in the sphere of work and public life, it simultaneously devalued women’s role in reproduction and the concrete caregiving work they had traditionally done at home, and which still had to be done by parents – or someone. She wrote, in 1996:

“[In modern times, women] have adapted to that situation in two ways. They are having fewer children, and they are maintaining at least a foothold in the labour force even when their children are very young. But that strategy still does not protect mothers very well against the risk of the four deadly Ds: disrespect for non-market work; divorce; disadvantages in the workplace for anyone who takes time out; and the destitution that afflicts so many female-headed households.”

Having men do half the caregiving and other domestic work, as advocated by mainstream feminists, could never remove these risks because of the deep “asymmetry” (not simply “difference”) between their reproductive roles. Like Mary Wollstonecraft, Glendon advocated not strict equality but, as Bachiochi puts it,

“an equal dignity that admits the special ‘power’ and ‘privilege,’ and ‘disability’ too, of childbearing and childrearing, seeking not the erasure of these facts of life, but a reconciliation of them within reciprocal relationships of mutual respect, interdependence, and collaboration in all realms of life.”

To make this dignitarian vision a reality for women Glendon called for a cultural turn towards the family, in recognition of the fundamental importance of stable, self-governing families to public order and a flourishing society.

As Wollstonecraft insisted: “If you wish to make good citizens, you must first exercise the affections of a son and a brother. This is the only way to expand the heart; for public affections as well as public virtue must ever grow out of private character…”

Familism, communities and society

This would entail a “social ecology” in which smaller groups and systems (“communities of memory and mutual aid”) would play their supportive role in the neglected space between the state and the family or individual.

With others, she proposed to the Clinton administration in the early 1990s that society should:

• Support infant-parent bonding in the home until the age of one year. This through a combination paid leave (for six months at least) flexitime and work-from-home arrangements.
• Provide a generous, European-style child allowance, and tax policies which did not favour those who work outside the home.
• Foster a culture of familism to shore up the essential work parents do and reaffirm the value of children over “excessive careerism or acquisitiveness”, so parents could put their children first.

The aim, here, was not some kind of “work-family balance”, but a fundamental change in the way parents in the workforce – both men and women – are seen: not as employees first and caregivers second, but as caregivers first and employees second. The economy should serve families and not vice-versa.

Coming to the present, the fate of those ideas can be judged, perhaps, by President Biden’s recent (failed) attempt to spend more than $200 billion on subsidising childcare for millions of poor and middle-class families where both parents work, while offering nothing to families who would like to have one parent stay at home with their young children – as many would.

Reimagining feminism

Yes, despite more flexibility in the workplace and diversity in familial arrangements in the direction of “gender equality”, Glendon’s call for a family-friendly culture remains unfulfilled. And some things are worse.

College-educated fathers may be doing a larger share of caregiving and domestic work, but further down the social scale they are often simply missing. More than a third of children in the US live without their father in the home, Bachiochi notes. Marriage rates and fertility are at historic lows, and the happiness of women has also fallen. Where there are two spouses or partners, they often both need to work full-time to keep the small family afloat.

In the face of all this, most feminists remain obsessed with the gender pay gap and abortion rights.

However, there is nothing inevitable about the present, and Bachiochi concludes her historical study of the rights of women by imagining a 21^st century feminism shaped by the dignitarian values of Wollstonecraft and Glendon.

The new feminism, while preserving the real gains for women of the last two centuries, would correct mistakes and carry forward the work of harmonising marriage, parenthood and the social and economic equality of women.

Importantly, it would disentangle the sexual revolution from the movement for women’s rights. Given the role abortion has played in enabling the sexual chaos and in delaying proper recognition of the work of the home, repudiating abortion would be a good place to start, Bachiochi suggests.

It’s a big ask, but Bachiochi’s own history is proof that it is possible. She was a pro-choice feminist when, at 20, she read Mary Ann Glendon’s Rights Talk, with its appeal to human dignity as the basis for human rights, and could not shake off its arguments.

Later, when she started her research on theories of women’s rights, she was stunned to discover Mary Wollstonecraft’s view that male chastity was the precondition for equality between the sexes.

There is much, much more in her book, but by bringing the thought of these two women to light for today’s scholars and students, Bachiochi has done them a great service. And the timeliness of her work is only enhanced by the pending Roe and Casey decision, since it lays out the terms of the discussion that should follow.