A police officer leads a K9 around steel fencing and barricades surrounding the Supreme Court. Photo / AP
OPINION: The anti-abortion movement has won its decades-long effort to undo Roe. Now what?
The anti-abortion movement has long argued that reversing Roe v Wade would strengthen American democracy. Roe, the argument goes, short-circuited a process of state-by-state debate and compromise, freezing the democratic process and imposing a single abortion solution on the nation. Undoing the constitutional right to abortion, then, is seen as a win for democracy — a first step in allowing each state to set its own policy.
The Supreme Court stresses this point in its opinion overturning Roe, going so far as to suggest that Roe is at the root of the polarisation of American politics and the partisanship of our courts. Overturning it, the court argues, will move us a step closer to national sanity — or at least states can reach their own decisions and leave one another alone.
The problem with this argument is that history gives us no reason to believe it. Opinions about legal abortion were polarised before 1973, and Americans have held vastly different views about abortion since at least the 1960s. Nor did Roe short-circuit promising consensus solutions. The closest thing to a compromise — a model law promulgated by the American Law Institute in 1962 — was rejected by the anti-abortion movement as a denial of fetal rights and by many supporters of abortion rights as ineffective. Tensions have ratcheted up in the decades since for reasons having little to do with Roe, including the realignment of political parties around abortion and the rise of negative partisanship.
The dissolution of Roe will not make the tensions that preceded it disappear. Several states have already issued sweeping laws criminalising abortion, while others have declared an intention to become sanctuaries for people seeking abortions. State leaders seem intent on influencing what happens outside their borders, encouraging or punishing travel for abortion. Anti-abortion leaders hope to ban abortion across the country through federal legislation or yet another Supreme Court decision, while abortion-rights groups are seeking to ensure access, circumvent criminal laws and wage battle in state courts.
But more fundamentally, the story the Supreme Court tells is dangerously incomplete. The decades-long fight to reverse Roe was not an effort to restore democracy but instead an attempt to change the way American democracy works — one that, now realised, will touch areas of life well removed from reproduction.
The leaders of the anti-abortion movement have long seen their cause as a fight for human rights in which compromise was a betrayal of principle. Their stance was clear in the 1960s, as they fought the loosening of criminal abortion laws, and it was obvious after Roe was decided, when the movement agreed on the need for a constitutional amendment recognising fetal personhood and thus banning abortion nationwide.
American party politics as we know them today were, in time, shaped by those efforts. For the better part of a decade after Roe, abortion was on the back burner for major figures in both political parties. But by the 1980s Ronald Reagan saw abortion as an opportunity. Reagan, who as governor of California had signed a law that made abortion accessible in some cases in the state, understood that white evangelical Protestants and some Catholics were increasingly anxious about the rise of the feminist movement, the early fight for gay rights and the spread of no-fault divorce. Abortion, Reagan thought, could put Republicans in power and keep them there. The anti-abortion movement, in turn, forged a partnership with the GOP in the hope that Republicans would usher in a new era in constitutional law, one in which rights and personhood began at fertilisation.
But amending the Constitution is hard, and when it came to a fetal-rights amendment, most Republicans had other priorities. By the mid-1980s, leading anti-abortion groups had a backup plan: Take control of the Supreme Court.
At first, anti-abortion leaders believed that they could simply elect Republicans to nominate and vote on Supreme Court justices, and the rest would take care of itself. But in 1992, a Supreme Court with six justices appointed by Republicans refused to reverse Roe v Wade. Anti-abortion leaders believed that the authors of the Planned Parenthood v Casey plurality had been afraid of alienating the legal community and angering the American people. The key to undoing Roe, then, would be to ensure that future justices did not worry about either of those things — a shift that led some anti-abortion groups to seek fundamental changes in America's party politics and campaign spending, and the basic role of the Supreme Court.
The reversal of Roe required the remaking of a growing conservative legal movement, one that had expanded considerably since the founding of the Federalist Society in 1982. From the standpoint of the anti-abortion movement, the conservative legal movement had been an unreliable ally in the 1980s and early 1990s. Many in the Federalist Society had been uncomfortable with the anti-abortion movement, disagreeing about the value of a right to choose or worrying that abortion opponents would tarnish the image of an emerging conservative legal elite.
Robert Bork, whose 1987 Supreme Court confirmation went down in flames, helped to change that. Bork had been a prominent critic of Roe, and after the Senate voted down his nomination, the conservative legal movement became more comfortable defining Roe as the ultimate symbol of judicial activism. As the conservative legal movement became more powerful, the country got closer to the elimination of abortion rights.
But in 1992, the Planned Parenthood v Casey decision solidified a growing realisation among anti-abortion groups that it would not be enough to build influence in the conservative legal movement. Even with six justices nominated by Republicans, the court declined the invitation to reverse Roe, explaining that doing so would irrevocably damage its legitimacy. So anti-abortion groups set out to ensure that different kinds of justices would sit on the court — justices who would be ideologically consistent and indifferent to popular opinion.
Clarence Thomas, who joined the court the year before the Casey decision, stood out as a model for this new kind of justice. George HW Bush, the president who nominated Justice Thomas, was hardly a hero to abortion opponents; early in his career, he was a vocal supporter of family planning, and even as president, he was never fully comfortable with nationwide criminalisation. Justice Thomas was a different story: Anti-abortion leaders were impressed by his response to the sexual harassment accusations raised by Anita Hill. He seemed like the kind of judge who would stick to his principles no matter what the American people thought of him, and who even delighted in the hatred of his opponents on the bench and in Congress. That was the kind of justice who would put an end to Roe.
After Casey, some anti-abortion groups expanded their focus: To gain even more control over Supreme Court nominations, they sought to overhaul the Republican Party and the rules of campaign spending. Anti-abortion lawyers waged war on campaign finance limits, which they believed hamstrung social conservatives, disempowered small-dollar donors and violated the First Amendment. They joined other groups working to unleash a torrent of spending from nonparty outside groups, fought for donor anonymity and played an instrumental role in the Supreme Court's decision in Citizens United v Federal Election Commission, which struck down certain limits on corporate election expenditures.
With new money and influence in the GOP, anti-abortion groups were able to do something new: weaken the traditional leadership of the Republican Party, which had not made the fight against Roe as much a priority as business-friendly attacks on regulations and taxes.
And when GOP Supreme Court nominees were no longer ideologically pure enough, anti-abortion leaders and the conservative legal movement set out to destroy them. Harriet Miers, a longtime confidante of President George W Bush who was nominated to the court in 2005, learned this the hard way. After giving up the fight for Miers, Bush nominated Samuel Alito, the author of this week's opinion reversing Roe.
Progressives made mistakes that made this moment possible. They failed to mobilise voters to care about control of the courts in the ways that conservatives did over the past half-century. The abortion-rights movement often neglected the ideas and needs of people of colour, and they often treated Roe as a stand-alone issue — one that could be separated from fights about racism or voting rights or birth control — in ways that set their movement up for failure. And the anti-abortion movement had its share of luck. If Donald Trump had lost in 2016, or if Ruth Bader Ginsburg had retired earlier, this might not be happening now.
Just the same, anyone who underestimated the anti-abortion movement looks like a fool today. The Supreme Court concluded that Roe was egregiously wrong — and compared it to the decision to uphold racial segregation — but it did not stop there. The opinion borrowed language from the anti-abortion movement — the very movement that shaped the court as it exists today. And it overturned Roe despite evidence that most Americans do not want this — and despite the fact that the Supreme Court has rapidly lost standing and now is the most unpopular it has been in the modern polling era.
Americans will disagree about whether to mourn or celebrate the destruction of this constitutional right, but there should be no illusion about its price. The abortion rate may not decrease dramatically, especially if states offer little support for people who want to parent, and many desperate Americans will find a way to get an abortion no matter what. But those who are forced to continue pregnancies against their wishes will have to give birth and parent with little expectation that our society will treat them fairly, much less the children they raise. Some women will die.
Then there are the costs that go beyond pregnancy and abortion. The struggle to end Roe has helped make national elections more expensive. It has contributed to a world in which politicians may be more responsive to major donors, nonprofits and super PACs than to voters. The fight has transformed the GOP, weakening the party's traditional hierarchy and opening the door to populists indifferent to the very idea of democracy. And it has changed the Supreme Court in profound ways that are unlikely to be reversed anytime soon.
It is appealing to believe that judges can rise above politics, interpreting the law and nothing more, and remain indifferent to the consequences of their decisions. But it's clear that over the years the Supreme Court has become yet another partisan institution — and one that's unaccountable to the American people. In that light, it's hard to see the court's aggressive moves to remake American constitutional law as anything but anti-democratic.
The fight to undo Roe, then, has been a fight to remake our country — and it has succeeded. That fight seems even more ominous when one looks around the globe: Other countries that have recently undone abortion rights are backsliding democracies.
We live in a post-Roe America now, and we are just beginning to understand what that means.
This article originally appeared in The New York Times.
Written by: Mary Ziegler
© 2022 THE NEW YORK TIMES
New York Times: Nearly 75 million people have cast early ballots.