If Daughters Decided

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When Justice Lewis Powell joined the U.S. Supreme Court in 1972, he promptly encountered one of the era's most difficult cases, Roe v. Wade. Yet his decision to vote among the court's 7-to-2 majority in declaring abortion a fundamental right came with surprising ease, especially for a conservative lawyer inclined to read the Constitution strictly.

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His view that it was "intolerable" to meddle with a woman's "right to control her own body," wrote his biographer, John C. Jeffries, Jr., derived not so much from his view of the law as a belief that forcing women to have unwanted children was costly for the kids, as well as the mothers. Various sources shaped his thinking, said Jeffries, but one was particularly persuasive: Molly, "the most outspoken" of Powell's three daughters.

At a time when ideological purity often seems to guide our nation's leaders more than any other consideration, it is almost quaint that a prominent public official would pay attention to his daughter's advice, no matter how informed. Vice President Dick Cheney, for one, appears unmoved by the views of his daughter Mary, a lesbian whose outspoken support for gay rights hasn't kept him from consistently backing right-wing positions at odds with equality for gays. Sure, he broke with the President on a constitutional amendment against gay marriage, but his stance that each state should decide whether gays can marry is looking like a distinction without a difference: In the last month alone, courts have turned down arguments for gay marriage in seven states, most notably New York and Washington.

The surprise is that Powell's approach to decision making, not Cheney's, turns out to be the rule rather than the exception. In a recent study for the Yale Department of Economics, Prof. Ebony Washington found that, when it comes to making law, having a daughter makes a real difference.

The study looked at how all members of the 105th Congress, which met from 1997 through 1998, voted on 20 bills involving abortion, lesbian rights and other issues of particular interest to women. Republican or Democrat, conservative or liberal, male members of Congress with daughters were far more likely than their colleagues to vote as "feminists" on those issues — feminist in this case being defined as positions advocated by the National Organization for Women. And the more daughters a congressman had, the more feminist votes he generally cast. The effect was greatest for legislation involving reproductive rights, followed by bills promoting workplace equity and the protection of women from violence.

It may not come as that great a shock to learn that lawmakers — and judges — with daughters take essentially pro-women positions, especially on moral issues like reproduction, which tend to elicit votes from the heart rather than from a standard political playbook. Still, the clarity and consistency of the results are startling. But the real question is: are they also troubling?

There's a pretty fair argument to be made that Justice Powell should in fact have ignored Molly's advice and refused to find an abortion right in the Constitution — and it's not just the strict constructionist view that a judge's personal beliefs should not dictate one's reading of the law. Thanks at least in part to Molly, Powell believed women had the right to control their bodies. But he also believed that state legislatures were steadily embracing that view. As Jeffries explained, Powell and his brethren might have preserved abortion while preventing the divisive rancor that now surrounds the issue if they had just allowed the legislatures to take their course rather than trying to speed the process along.

So for judges at least, it is possible that daughters don't know best. But perhaps even lawmakers should think twice about letting personal circumstances inform their making of public policy. California's three-strikes law, for instance, didn't emerge from a reasoned debate over the wisdom of condemning three-time offenders to life in prison but from the impassioned pleas of a father whose daughter, Kimber Reynolds, was murdered by career criminals. Megan's Law (requiring released sex-offenders to publicly disclose their offense), Katie's Law (providing money to track sex offenders) and a host of similar measures share the provenance of narrow, private experience. Some of these laws may make sense, but most have unfortunate side effects, like causing the occasional injustice (do we really want to imprison for life someone whose crime, or at least one of his three, is stealing a videotape?) or practical problem (since no one wants a child molester in the neighborhood, where are these sex offenders supposed to live?). When the law becomes too personal, serving the public good sometimes becomes secondary to doing right by someone you love.

On the other hand, there's something different, even comforting and refreshingly human, about letting the gender of your child affect your decisions. It's not as if daughters were a narrow interest group to be served for political advantage. They make up fully half the nation's population, and their good, I might add, has seldom been served for most of the past two centuries. That congressmen from across the political spectrum feel compelled to take their daughters' interests into account indicates an honest effort to do right by the nation, as well as someone they love. If Powell had not been swayed by his daughter, surely the legislators he preempted would have been influenced by theirs. In the final analysis, it is the way the legal system should work. And just how do I know that? My daughter told me so.