The beginning of the end of Roe v Wade arrived on election night in November 2010.
That night, control of statehouses across the country flipped from Democrat to Republican, almost to the number: Democrats had controlled 27 state legislatures going in and ended up with 16; Republicans started with 14 and ended up controlling 25. Republicans swept not only the South but Democratic strongholds in the Midwest, picking up more seats nationwide than either party had in four decades. By the time the votes had been counted, they held their biggest margin since the Great Depression.
There had been a time, in the 15 years after Roe, when Republicans were as likely as Democrats to support an absolute right to legal abortion, and sometimes even more so. But 2010 swept in a different breed of Republican, powered by Tea Party supporters, that locked in a new conservatism. Although Tea Party-backed candidates had campaigned on fiscal discipline and promised indifference to social issues, once in office they found it difficult to cut state budgets. And a well-established network was waiting with model anti-abortion laws.
In legislative sessions starting the following January, Republican-led states passed a record number of restrictions: 92, or nearly three times as many as the previous high, set in 2005.
The three years after the 2010 elections would result in 205 anti-abortion laws across the country, more than in the entire previous decade.
"A watershed year in the defence of life," Charmaine Yoest, then-president of anti-abortion group Americans United for Life, proclaimed when the sessions were over, noting that 70 of the laws — restrictions on abortion pills and hurdles for women getting abortions and clinics providing them — had adopted the group's model legislation. "And that is just the beginning."
"It was a massacre," said Beth Shipp, then-political director of NARAL Pro-Choice America, which had been founded before Roe to push for abortion rights.
The momentum that started in 2010 led to the Supreme Court overturning Roe on Friday (Saturday NZT), even though polls show that a vast majority of Americans supported it, and that most now believe abortion is morally acceptable. The court's decision lamented that Roe had "sparked a national controversy that has embittered our popular culture for a half century". In fact, that controversy started not so much with Roe but in statehouses, and raged hottest over the past decade.
"Women are asking me all the time — what happened? They have no understanding of how this could be," said Cecile Richards, who was president of Planned Parenthood from 2005 to 2018. "What's happened is not about religion, or morality or unborn babies. It's about politics. Women can't wrap their brains around it. Republicans want to pretend it's about something else. But it's about control — that's what politics is about."
Living with compromise
Even some of the most ardent anti-abortion activists did not see the shift coming.
In 2009, the country seemed settled around the idea that abortion should be "safe, legal and rare", in the phrase coined by Bill Clinton. States had passed restrictions that lined up with public opinion, requiring parental consent and waiting periods for abortions. Ballot initiatives to ban abortion in South Dakota and Colorado had failed in 2008, and another failed in Colorado in 2010.
"At either extreme, people were unhappy, but essentially everybody could live with that compromise," said Neal Devins, a law professor at William & Mary and author of a 2009 article in The Yale Law Journal headlined 'How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars'. The contentious Casey decision, in 1992, had reaffirmed the central holding of Roe v Wade — that states could not ban abortion before a fetus was viable outside the womb, or about 23 weeks — but allowed states to impose restrictions on abortion so long as they did not impose an "undue burden" on women.
For the most part, Devins' article argued, state lawmakers hated talking about abortion and liked that the court had given them cover to pass some restrictions, but not ones that might contradict public opinion.
In May 2009, an anti-abortion extremist fatally shot Dr George Tiller, one of the nation's only providers of late-term abortion, in his church, damaging the image of abortion opponents. Abortion rights groups were also riding a string of victories. "In 2006 and 2008, we made great gains with pro-choice Dems and some pro-choice Republicans," Shipp, of NARAL, recalled. "We had the largest majorities in the House, we had the majority in the Senate."
They had secured health insurance coverage for birth control in Obamacare, and fended off congressional Republicans' attempts to defund Planned Parenthood.
"We were dead in the water," said Chuck Donovan, a longtime legislative director for the National Right to Life Committee. Except to fight over state funding on tax credits for health insurance, "pro-life didn't have a movement". Demographics were moving the country toward a more diverse majority that was presumed to lean left. Anti-abortion forces feared the reelection of President Barack Obama and six more years of potential appointments to the Supreme Court.
Republican strategists, however, had an eye on the states in the 2010 midterms. In The Wall Street Journal, Karl Rove, the architect of George W. Bush's victories, wrote that a group called the Republican State Leadership Committee was aiming to flip 18 legislative chambers where Democrats were holding the majority by four or fewer seats. Because it was a census year, taking control of state legislatures would give Republicans power over redistricting.
The group spent just US$30 million — less than the cost of some Senate races. Republicans won 680 seats, more than the Democrats had won in the post-Watergate election of 1974.
In another year, the swing in party control might not have given much hope to anti-abortion forces. They had failed to pass a constitutional amendment banning abortion even with Republicans controlling Congress and the White House in the 1980s, and failed to get a favourable Casey decision even with Republican appointees dominating the court. A decade later, the party had set up a "big tent" to include abortion rights supporters, with Roger Stone, the future Donald Trump operative, advising Republicans for Choice, a group led by his wife.
The Republicans of 2010 had been backed by the Tea Party, which had swelled in protest over Obamacare in the summer of 2009. Polls found that about 60 per cent of Tea Party supporters thought that abortion should be illegal, and about half identified as part of the religious right, a coalition that had belatedly come together after Roe, in 1980, to oppose abortion.
Over the next year, Republican-led chambers passed more restrictions on abortion than in any year since the Roe decision in 1973.
Many of the earliest bills reflected the bitterness of the Obamacare debate. They prohibited insurance coverage of abortion and eliminated public funding for Planned Parenthood.
Others added delays for women seeking abortions: ultrasounds, counselling from anti-abortion crisis pregnancy centres and waiting periods. South Dakota's 24-hour waiting period became 72 hours. Six states mandated that parental notification for abortions be notarised. North Carolina required women to receive counselling that abortion could damage their ability to get pregnant and cause lasting mental health consequences — claims unsupported by medical studies.
Many of the bills copied model legislation from anti-abortion groups such as Americans United for Life or the National Right to Life Committee that had stalled in committee in previous years. Now they were gliding through two Republican-controlled chambers to the governor's pen. "It wasn't that they were coming up with new ideas," said Donna Crane, then-policy director at NARAL. "It's just that the goalie got pulled."
The red wave
The new laws accelerated the strategy that anti-abortion groups had embraced since their failure to secure the constitutional amendment against abortion in the 1980s: if they could not topple Roe in one nationwide swoop, they would go state by state passing laws that chipped away at what it allowed. By destabilising it, they would undermine its legitimacy.
A young Justice Department lawyer named Samuel Alito had articulated this strategy in a 1985 memo advising the Reagan administration to enter an amicus brief seeking to uphold abortion restrictions in Pennsylvania. The department ultimately had to push to overturn Roe v Wade, he wrote, but a "frontal assault" on the decision's holding on viability — that abortion was protected until the fetus could survive outside the womb — risked the Supreme Court "summarily rejecting" an outright ban. Instead, abortion opponents had to make the case that more incremental laws were "eminently reasonable and legitimate".
But there was a divide in the movement between those who argued for incrementalism and those who wanted the frontal assault. James Bopp Jr, a conservative lawyer who had fought abortion since Roe and in 1980 wrote the first anti-abortion plank into the Republican platform, tried to reinforce the message for discipline in 2007, as restive anti-abortion groups pushed for outright bans on abortion starting at conception.
These efforts were only "doomed to expensive failure", Bopp wrote in a memo that year, and would only end up enriching Planned Parenthood and other groups that would win legal fees in court challenges.
More damaging, he wrote, "there is the potential danger that the court might actually make things worse than they presently are", by reinforcing Roe's declaration of a constitutional right to abortion.
By the end of 2011, five states — Alabama, Idaho, Indiana, Kansas and Oklahoma — had followed Nebraska's lead to ban abortion before viability. They prohibited abortion after 20 weeks of pregnancy, asserting that the fetus could then feel pain.
"One of the dynamics that drove this was a kind of frustration," Bopp said. "'Look how long it's been, we need to force the court.' There was a natural frustration which makes people willing to take more risks, or do things differently."
In March 2011, the new Republican supermajority in the Arizona Legislature passed the nation's first bill banning abortion when the woman's decision was based on the sex or race of the fetus, one of many that aimed to portray abortion providers as sexist, racist and supporters of eugenics. The bill had been pushed by the Center for Arizona Policy, which had been founded in 1995 largely to support anti-abortion legislation.
The bill's sponsors named it the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act. On the floor, they cited a few studies — one including just 65 women — that suggested some immigrants from countries such as India and China, where there has been a traditional preference for sons, faced pressure to abort female fetuses.
"This was an issue that didn't exist," said Katie Hobbs, a Democrat elected to the Arizona House that year. "But how do you fight against that without sounding like you actually support people aborting babies because they are a race or gender that they don't want?" If the bill was "ludicrous", she said, "it kept the issue at the forefront, made it look like the Democrats were supporting these extreme measures, and why wouldn't you want to stop them?"
The law punished providers, making violations a felony. Within two years, five other states had copied it, and North Dakota started a trend of bans on abortion based on diagnoses of Down syndrome and other genetic abnormalities.
Sue Liebel, an anti-abortion activist in Indiana at that time who became state director of what is now Susan B. Anthony Pro-Life America, founded in 1992 to support anti-abortion candidates, called it "pent-up demand after years of pro-choice control".
"This was a red wave — it kind of rolled across the country," she said.
By early 2012, a report from the Guttmacher Institute, which supports abortion rights, declared a "seismic shift" and the end of consensus on abortion. More than half of women of childbearing age lived in states the report deemed hostile to abortion rights — 15 million more than a decade earlier. A chunk of states in the Midwest, and the entire South, had moved to hostile ground.
Americans United for Life noted the Guttmacher ratings as an accomplishment in its own annual report that year, giving Kansas and Arizona, two newly "hostile" states, awards for "most improved".
Growing political divide
Many of the new laws were bucking public opinion. Polls at the time showed that more than half of Americans thought that abortion should be legal if a child would be born with a life-threatening illness or "mentally disabled", or when the mother's mental health was endangered. A majority did not support blocking federal funding for abortions. And three-quarters thought there should be an exception to save the life of the mother even in the last three months of pregnancy.
In 2011, even as their state legislature was tightening restrictions on abortion, Mississippi voters rejected a ballot initiative on "fetal personhood" that would have declared that life begins at conception.
But polls showed the issue becoming more partisan. Increasingly, Republicans were identifying as "pro-life" and Democrats as "pro-choice". Support for abortion rights had once depended largely on education and economic status but now depended mostly on party affiliation, with Democrats moving sharply toward supporting abortion rights.
And although Republicans and anti-abortion forces were increasingly working in concert to turn the states to their advantage, abortion rights supporters accused Democrats of all but giving up on local elections.
"On the far right, they realised that the most lasting impact of 2010 would be in the states," said Daniel Squadron, a former New York state senator and executive director of the States Project, which was founded by Democrats in 2017 to try to win back control of legislatures. "On our side, state power was a footnote. The lesson we took was 'Focus more on midterms'; the lesson they took was 'Wield power in states.' And today, both sides are reaping what we sowed."
Abortion rights groups lacked the infrastructure their opponents had in the states. NARAL had cut its number of state affiliates nearly in half between 1991 and 2011. And with Democrats in the glow of winning Congress in 2006 and electing the nation's first Black president two years later, abortion rights groups were having trouble convincing big donors and grassroots supporters alike that Roe was in trouble.
Donors liked to support congressional and presidential elections, and tended to go away when they perceived that the threat had disappeared. "When you were trying to convince them they had to put money into Kansas or Nebraska, they were like, 'That's futile,'" said Nancy Keenan, then-president of NARAL.
Opponents of abortion rights had always proved easier to mobilise than supporters. In polls and focus groups, NARAL asked women who were sympathetic to its cause what it would take to get them to be more active in protecting Roe v Wade. "Consistently," Keenan said, "we received answers saying, 'If they overturn it.'"
Some younger activists were pushing abortion rights groups to stop apologising for or seeking compromise on abortion. To the new generation, abortion was healthcare, and bodily autonomy was not something to be compromised. The Democratic Party platform in 2012 left in "safe" and "legal" but took out "rare".
Anti-abortion groups exploited this, portraying the Democrats' position on abortion as anytime, anywhere, under any circumstance and paid for with government funds. By contrast, said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, a 20-week ban looked reasonable, in keeping with what polls showed Americans wanted.
"2010 was the year that the light came on about the reality of abortion law in the nation," she said. "It was the year that the polarisation between the extreme abortion absolutism and the Republican Party position was a winning contrast. It's the first year that sitting officeholders could see that this issue really helps us. And it just got stronger every election cycle because we would not relent with that contrast."
Republicans running in right-leaning districts backed increasingly strict laws to appeal to reliable anti-abortion voters and avoid primary challenges. By 2016, one analysis found not a single Republican state legislator willing to identify as "pro-choice".
In the nearly 50 years between the Roe decision and its reversal on Friday, states enacted 1380 restrictions on abortion. Almost half — 46 per cent — were enacted since 2011.
Party lines harder than ever
Devins, of William & Mary, revisited the question of abortion politics in 2016, this time in a paper for The Vanderbilt Law Review. He stuck by his 2009 assessment, but the middle ground he had written of approvingly then had disappeared. "Today, red state political actors are not interested in compromise," Devins wrote in 2016. With the rightward shift in the Republican Party, abortion rights had become about partisan advantage, along with voter-identification laws, tax reform and elimination of public-sector unions.
In 2015, the Florida Senate took just one hour to approve a 24-hour waiting period on abortion, with Republicans rejecting all eight amendments offered by Democrats. Wisconsin had passed its ban on abortion after 20 weeks without a single Democrat. And a bill in Texas to prohibit abortions based on fetal abnormality was brought up for a committee vote after the House had recessed and Democrats were absent.
"It's conventional wisdom to say that the court's decision in Roe caused the polarisation over abortion," said Reva Siegel, a law professor at Yale. "But the court did not cause that polarisation. It was the Republican Party's quest for voters — political party competition — that savaged Roe. Once the attack on Roe was underway, the defence needed to be full tilt in politics as well as in the courts — and in all political arenas, state, local and federal. Because over time the attack on Roe has become more than an attack on abortion; it has become an attack on democracy."
By 2019, proponents of the incremental strategy for undoing Roe were losing to those who wanted the frontal attack. With two new conservative justices, the Supreme Court was tilted toward the latter. Momentum was on their side, and states began passing legislation designed to force the court to act. Twenty-week bans had led to 18-week bans, eight-week bans and now six-week bans.
Still, many anti-abortion leaders predicted that the Supreme Court would continue to chip away rather than strike down the decision. Justice Clarence Thomas, the court's only Black justice, had criticised abortion as eugenics. So the next big case, many reasoned, would concern one of the bans on abortion in cases of genetic abnormalities.
Instead, the court took the case regarding a Mississippi law passed in 2018 that banned abortion at 15 weeks.
Republicans had taken control of the Mississippi Legislature in 2011 — the first time since Reconstruction that Democrats had not controlled the House.
"It became much easier to navigate these waters and get restrictions passed," said Mississippi state Senator Joey Fillingane, a Republican who sponsored numerous anti-abortion bills after being elected in 2000. "Even though these state Democrats were social conservatives, they still had to answer to the national Democratic Party and received pressure to limit the number of restrictions."
Republicans got smarter about strategy, he said, having women appear as the chief sponsors of anti-abortion legislation to avoid criticism.
During the two decades when Democrats controlled the chambers, the two parties had often worked together. As the 2011 elections approached, David Baria, then a state representative, recalled discussing strategy with a fellow Democrat who had served for 35 years and was poised to become House speaker. To hold the House, the colleague argued, they would have to make it safe for Democrats to vote for anti-abortion laws and against gun control. Democrats had to be able to go back home and appeal to voters as moderates.
But the moderates had disappeared. His fellow Democrat lost. Baria took over as the leader of the new Democratic minority, and party lines were harder than ever. The Republicans were using a text messaging service to convey how members should vote. Soon, he adopted the same for the Democrats.
Still, Baria thought the vote on the ban in 2018 might be different. Proponents offered no scientific justification for cutting off abortion at that gestational age. The state had already restricted abortion so much that there was only one clinic remaining, and it performed so few abortions after 15 weeks that the provider had declined to file a legal challenge to a 20-week ban. And the proposed 15-week ban included no exceptions for rape or incest.
Proponents of the bill had mobilised callers, and by 10 to 1 those who called urged a yes vote on the ban. "We're a conservative state, but what I would argue is that the majority of callers didn't understand that there were no exceptions for rape or incest," Baria said. "The message is, are you for or are you against abortion."
Baria expected that at least a few Republicans would vote against the bill because it did not have rape or incest exceptions. Instead, even amendments to add those exceptions failed.
Four Democrats in the House and four in the Senate crossed the aisle to vote for the bill. Not a single Republican voted against it.
This article originally appeared in The New York Times.
Written by: Kate Zernike
Photographs by: Ilana Panich-Linsman and AP
© 2022 THE NEW YORK TIMES
