"Does the decision in Roe, even assuming the value of the right it created, carry legitimation costs? Placing the question in a historical context, one might recall that Catharine MacKinnon’s early critiques of Roe v. Wade pointed to two important legitimating effects of that decision—one quite specific and the other more general. First, she argued, constitutionalizing a right to terminate a pregnancy broadly legitimates the sex that produced the pregnancy—sex that might well have been less than fully consensual by both parties. It shifts the focus away from addressing the social and sexual imbalances that result in unwanted pregnancies to the unwanted pregnancy itself, and strongly suggests that the appropriate social and individual response to unwanted sex is to protect the decision to end the pregnancy. This has the effect of minimizing the social costs of sexual inequality for the strong and the weak both, rather than ending the sexual inequality itself. Roe, then, legitimates both unwanted sex and the hierarchies of power that generate it. Second, MacKinnon argued, the privacy rationale of Roe v. Wade might have the pernicious effect of further insulating the already overly privatized world of intimate relations from either moral critique or political struggle. Men subordinate women, to a large degree, in private: in homes, in bedrooms, in hotel rooms, through pornography, prostitution, marriage, and sex. Extolling the privacy of these relations, and casting a constitutional wall of protection around them for the express purpose of warding off legal intervention or regulation, thus both insulates and valorizes—and hence legitimates—the subordination that occurs within them. These arguments, I think, were never answered satisfactorily by feminist supporters of Roe v. Wade."
January 1, 1970