In the middle of a Sam Roberts New York Times obituary of Anthony Beilenson, a Democrat who represented parts of Southern California in Congress, comes this profoundly insightful passage:
His biggest accomplishment in the State Legislature was the first liberalization of California's abortion law in a century, passed in 1967.
"At the time it became law, no one anticipated that the Supreme Court would discover a constitutional right to abortion, as it did in Roe v. Wade in 1973," Lou Cannon, his friend, a Reagan biographer and a former reporter for The Washington Post, wrote recently on RealClearPolitics.com.
"Instead," Mr. Cannon wrote, "it was believed that the abortion rights battle would be fought in state legislatures, and Justice Ruth Bader Ginsburg has suggested that the United States might be more accepting of abortion rights if that had happened. Beilenson told me he also believed this."
Arguing that thousands of women were dying from back-channel abortions — the procedure was permitted only when a woman's life was endangered — Mr. Beilenson persuaded the Senate president to consider liberalizing the law. Mr. Reagan agreed to sign a bill passed by a bipartisan majority.
Mr. Beilenson crafted a compromise that legalized abortion in cases of rape or incest, or when a woman's mental or physical health was at risk. The Legislature approved it, and Mr. Reagan signed it, though he later said he regretted his decision.
Historical counterfactuals are always necessarily speculative, and the flip side of the "wait for the state legislatures" approach is that in the meantime, individuals suffer. Imagine if the Supreme Court had waited for state legislatures or local school districts to desegregate schools rather than ruling in Brown v. Board of Education. (Maybe it wouldn't have led to the white flight to the suburbs that further segregated education even to this day?) But surely, too, Ginsburg and Beilenson are on to something in suggesting that, at its best, the local legislative process is able to build consensus and forge compromises in ways that Supreme Court rulings sometimes fail to do.