Mary Ziegler. The American Journal of Bioethics. Volume 22, Issue 8, 2022.
Roe v. Wade, the most instantly recognizable United States Supreme Court decision, has served as a touchstone for debate about abortion both in the United States and abroad. Roe held that the constitutional right to privacy was broad enough to encompass a right to choose abortion until viability, the point at which survival is possible outside the womb.
Almost five decades later, the Supreme Court seems poised to overrule Roe and hold that there is no constitutional right to choose abortion. The Court’s conservative majority will soon decide Dobbs v. Jackson Women’s Health Organization, a case on a fifteen-week Mississippi abortion ban. From the moment that the Court agreed to hear the case, it was clear that the justices had in mind significant changes to abortion jurisprudence. Roe v. Wade and the cases following it recognize a right to choose abortion until viability, usually, somewhere between 21 and 24 weeks. To uphold the disputed law, the Court would have to either dispose of the viability line or conclude that there is no right to abortion at all. Predictions about the Court’s future actions are always perilous, but oral argument in Dobbs left little doubt that a majority do not believe that the Constitution protects a right to abortion.
The reversal of Roe seems to run counter to public opinion in the United States—while many favor restrictions and raise moral questions about abortion, a clear majority do not want Roe reversed and favor access to abortion early in pregnancy (Gallup, December 2021). If a decision reversing Roe is unpopular, it would likely do further damage to the reputation of the Court. Between September 2020 and September 2021, approval for the Court dropped significantly among Republicans, Democrats, and Independents (Jones, September 2021).
The current Court’s apparent willingness to run the risk of political pushback has a long and complex history, one that fundamentally changed the antiabortion movement, the Republican Party, and the conservative legal movement. Together, these transformations promise a new era for the Supreme Court. Scholars have long described the Court as a counter-majoritarian institution—one that need not be accountable to voters. In practice, as historians have shown, the Court tends not to stray too far from popular opinion. As argued further below, the prospect of backlash has served as a check on justices who do not want to appear partisan or undercut the power of the federal judiciary. The justices continue to argue that they are not merely partisans in robes, but the Court has taken on culture war issues at an almost unprecedented pace. For a Court bent on reversing Roe and tackling a long list of other divisive topic, concerns about institutional legitimacy no longer appear to be an effective check. A post-Roe Court may be more populist and unplugged from popular opinion, with unpredictable results for the future of the democracy.
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The fight to reverse Roe has had the most obvious effects on the U.S. antiabortion movement. The Supreme Court’s 1973 decision did not create the antiabortion movement, which had already organized across the states in the 1960s in response to a piecemeal effort to reform existing criminal laws on abortion (Williams 2016). The antiabortion movement was ideologically diverse on issues from contraception to protections for pregnant workers to constitutional prohibitions of sex discrimination (Ziegler 2015). First organized in Catholic dioceses, antiabortion organizations lobbied state legislatures and opened crisis pregnancy centers to discourage people from having abortions and offer limited support services. After Roe, a fractured movement agreed on the need to amend the Constitution to recognize the personhood of the fetus and ban abortion nationwide. Amending the Constitution was no easy feat, and to work toward supermajority support in Congress, abortion foes lobbied Democrats as well as Republicans. Indeed, there was no obvious partisan split on abortion in the 1970s.
Between 1976 and 1980, Ronald Reagan helped to engineer the partnership between the GOP and the antiabortion movement, seeing antiabortion voters as a new possible constituency for the Republican Party. Some socially conservative Catholics and evangelical Protestants had been union Democrats. Reagan’s handlers believed that these voters might forsake the Democratic Party for one that opposed legal abortion. He endorsed an antiabortion amendment in 1976 during his failed primary bid and then made abortion a central part of his 1980 campaign. At the same time, the New Right, a group of veteran rightwing activists, created an insurgency within the GOP, trying to cripple the party’s establishment. The New Right helped to launch what would become known as the Religious Right, a network of conservative evangelical Protestant groups. Ronald Reagan’s GOP, like the well-funded Religious Right, offered a lifeline to an antiabortion movement that was financially struggling and desperate for consistent political allies.
A partnership with the GOP transformed the antiabortion movement. Some in the movement had once pursued solutions designed to reduce the perceived need for abortion, including stronger federal laws against pregnancy discrimination, expanded funding for birth control, and programs intended to help young parents, newborns, and children. Aligning with the GOP in practice meant that larger antiabortion groups abandoned these initiatives, arguing that private (often religious) charity could address the needs of those who did not want to be pregnant. The antiabortion movement is still ideologically diverse, with groups like Texas’s New Wave Feminists, a secular, antiabortion, feminist organization, still organizing. But the movement’s reliance on the GOP fundamentally changed what the movement prioritized. Today, the states most closely aligned with the antiabortion movement tend to be the most conservative, have the weakest social safety nets, and record the worst outcomes for children (Annie Casey Foundation 2021).
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A partnership with the antiabortion movement had an equally transformative effect on the Republican Party. The party’s successful focus on the federal courts cannot be understood without examining the quest to reverse Roe. Before 1973, Republicans from Richard Nixon to Barry Goldwater had railed against what they described as judicial overreaching. But abortion foes played a central role in making the control of the Court a major issue on election day. After the failed campaign to amend the Constitution, the antiabortion movement fixated on the Court. Successful Republican candidates could nominate and confirm Supreme Court justices. Antiabortion organizations, in turn, made the prospect of potential new Supreme Court nominations a major reason for conservative voters to turn out.
At first, antiabortion activists and other socially conservative groups mostly rallied around whomever Republicans nominated. But the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey changed the calculus. The Casey Court had been widely expected to reverse Roe, especially since self-described antiabortion Republicans had nominated six of the Court’s nine members. And while the Court did partly overrule Roe (ditching the trimester framework, the rule governing abortion regulations), Casey preserved the idea of a right to choose abortion until viability.
For antiabortion activists, Casey suggested that it was not enough for Republicans to win presidential elections and nominate Supreme Court justices. Abortion foes concluded that only a certain kind of justice would vote to reverse Roe when the time came—not the kind of consensus pick who had sailed through Congress but someone who clearly believed Roe to be wrongly decided—someone unconcerned about the political fallout that the reversal of Roe could produce. Antiabortion leaders also increasingly saw the importance of other federal judicial nominees—especially since many abortion cases had historically never made it to the Supreme Court.
Pressure from conservative movements gradually helped to change both the type of judge selected by Republican presidents and the process of Supreme Court confirmations. Republican and Democratic presidents had (with some exceptions) gravitated toward nominees with impeachable credentials and broad appeal. For decades, this led to easy bipartisan confirmations. When George W. Bush selected Harriet Miers, an experienced Texas attorney and confidante of the president, the pattern seemed set to continue. Miers did not have the judicial experience or Ivy League of some nominees, but she was a talented lawyer with almost no paper trail.
It was opposition from social conservatives that helped to doom Miers. Miers lacked the resumé some expected of a Supreme Court nominee and did not belong to the Federalist Society, the most influential organization in the conservative legal elite. Perhaps unsurprisingly, the Federalist Society also helped bring her down. But rank-and-file conservatives saw Miers’ selection as the betrayal of a GOP promise to nominate sure bets to reverse Roe. After 2005, Samuel Alito—the justice ultimately confirmed in Miers’ place—became a model for the new kind of justice—more clearly conservative, more divisive, and more likely to excite base voters. Bipartisan, uneventful confirmation hearings—which remained common well after the failed 1987 hearings of Robert Bork—gave way to razor-thin confirmation votes and pitched battles about a nominee’s future votes, especially on abortion itself.
The GOP’s focus on judges dovetailed with the party’s response to the nation’s changing demographics. Ronald Reagan had created a powerful coalition of socially and fiscally conservative, predominantly white Baby Boomers. But the nation’s white majority was rapidly shrinking, set to become a minority between 2041 and 2045 (Gest 2021). Some in the party urged various strategies to appeal to a more diverse electorate, from doubling down on socially conservative policies that might appeal to religious people of color to softening positions on immigration.
The antiabortion movement played an important part in encouraging the GOP to focus instead on shrinking the electorate. Antiabortion activists frustrated by the Casey opinion threw themselves into the fight to lift limits on federal election spending. At first, the connection between abortion and campaign finance seems tenuous. But for abortion opponents like James Bopp, the general counsel of the National Right to Life Committee, the two issues were closely related. Without enough power in the GOP, antiabortion activists had no say over the justices selected for the Supreme Court. Spending more on elections—and devising strategies to help the GOP vastly outspend the competition—would mean more antiabortion Republicans in office and increase the antiabortion movement’s influence in the party. Antiabortion groups joined a broader fight against campaign finance reform and had a hand in major decisions, including Citizens United v. Federal Election, which laid the groundwork for uncapped independent expenditures by corporations. But the corporations that thrived after Citizens United were generally not Fortune 500 companies. Instead, Citizens United began a new era of outside spending, with massive amounts funneled through super PACs and nonprofits that did not disclose their donors (Bipartisan Policy Center 2018).
Outside spending, in turn, loosened the grip of a struggling GOP establishment. The traditional Republican leadership—focused on producing electable candidates—once had powerful advantages when it came to campaign spending, access to the media, and connection to the average voter. But the electorate had polarized, with a growing number of Republican voters becoming ideologically aligned with GOP candidates (Wolak 2020). The rise of negative and affective partisanship—hostility to voters and politicians from the other party—made Republican voters more willing to choose extremists from their side (Mason 2018). And the growth of conservative media rewarded purists and ended establishment leaders’ monopoly on media (Rosenwald 2019). But the rise of outside spending also crippled the establishment, which lost its ability to starve insurgent candidates of funds. The version of the GOP that emerged was far more populist and beholden to rightwing movements that the one had come before. And increasingly, antiabortion voters, especially white conservative evangelical Protestants, have been the GOP’s most reliable supporters.
As important, the relationship between the Republican Party and the antiabortion movement has remade the place of the Supreme Court in US politics. In the 1960s, Yale law professor Alexander Bickel famously described the Court as the least democratic branch. In practice, however, a wide range of scholars have shown that the Court has rarely broken much with national sentiment—and has faced disastrous backlash when the justices try to change public attitudes (Rosen 2006; Friedman 2009; Klarman 2004).
The possibility of backlash long discouraged the Court from doing anything that would create public outcry. In turn, the Court has rarely been a deciding election issue (Schmidt 2018). Major party candidates have with few exceptions not focused on judicial nominations on the campaign trail. But recent elections have been unusually focused on the Court, and when the Court is perceived as political, the justices’ popularity takes a hit. In 2020, Donald Trump made the Supreme Court a central issue in his campaign, especially following the passing of Ruth Bader Ginsburg in 2020. Trump rallies frequently featured chants of “fill the seat” (Gringlas 2020). Trump’s weaponization of the Court, combined with Ginsburg’s prominence, helped to raise the salience of the Court and to convince some voters that the Court was becoming more political. So, it seemed, did the Court’s handling of a Texas abortion law. The state’s SB8 law banned abortion at six weeks and assigned enforcement responsibilities to private citizens, who could sue anyone who performed or “aided or abetted” in an abortion for at least $10,000 per procedure (Feuer 2021). The Court let the law go into effect in September, suggesting that Texas might have devised a way to prevent any challenge in federal court.
The prospect of a politicized Court produced controversy and proposals for changing the Court. Some, like term limits, may require a constitutional amendment. Others, like adding justices to the Supreme Court, have not enjoyed great public support. For the most part, court reform of this kind struck many as unnecessary when the justices rarely issued decisions expected to invite major political chaos. In 2021, President Joe Biden seemed reluctant to press the issue, and a court reform commission did not push any proposals for major change (Totenberg 2021).
Even the antiabortion movement recognized that the Court would hesitate to outpace public opinion. Instead of forcing the Court’s hand, abortion foes instead promoted laws that would enjoy public support, reassure anxious justices, and maximize the chance that antiabortion candidates would win elections. In the 1990s and early 2000s, for example, the movement focused on bans on so-called partial-birth abortion (or dilation and extraction) a technique sometimes used in the second trimester. Strategies centered on partial-birth abortion stressed issues that tended to poll well for the antiabortion movement (support for legal abortion has traditionally declined later in pregnancy) (Ziegler 2020). Other antiabortion groups pushed laws requiring practitioners to provide patients with inaccurate medical information including that abortion increased the risk of breast cancer, post-traumatic stress, or infertility. Such laws might discourage individuals from terminating their pregnancies and spread the word that abortion harmed those who sought it out.
At the same time, abortion opponents made ever more exacting demands when it came to the kind of Supreme Court justices that they expected Republicans to nominate. The goal was to identify judges who not only believed Roe to be wrongly decided but who also were committed enough to their beliefs about Roe that they would discount the threat of backlash. While the movement catered to public opinion in the legislation it promoted, antiabortion leaders looked for judges who would not worry about public reaction.
As the movement’s political and judicial strategies diverged, it became increasingly obvious that the movement might more easily and quickly achieve its goals through the federal judiciary rather than through popular politics. For the antiabortion movement did not simply want each state to have the power to ban abortion; the movement described its cause as a fight for human rights. If a fetus or unborn child was a rights-holding person, as abortion foes saw it, it was unacceptable for abortion to be legal in any state. But popular politics seemed unlikely to deliver a nationwide abortion ban. Historically, the Court had resisted making decisions that would produce significant blowback and thereby undermine the power of the federal judiciary. The antiabortion movement, then, had a new holy grail: judges who would not worry about public reaction when the time came to reverse Roe or even recognize fetal rights.
By 2018, Donald Trump, a candidate who won over the movement in 2016 by promising to nominate “pro-life judges,” was able to replace Anthony Kennedy, the judge who had long cast the deciding vote in abortion cases. After Brett Kavanaugh, a conservative judge from the DC Circuit Court of Appeals, joined the Court, there appeared to be five votes to reverse Roe. Following Kavanaugh’s confirmation, activist groups and state legislatures stopped prioritizing the most popular restrictions. Instead, conservative states pushed sweeping laws and worked to assure that Roe was overturned as quickly as possible. Alabama banned all abortion except in cases of a threat to the patient’s life; Georgia’s six-week ban recognized fetal personhood. Many states eliminated exceptions for rape and incest.
Reaction to the confirmation of Kavanaugh (and later, of Amy Coney Barrett, Trump’s third nominee) signaled a change in the strategy of the antiabortion movement. No longer would the movement appeal to popular majorities; instead, abortion opponents would ask the Supreme Court to uphold the kinds of laws that their movement believed to be morally and constitutionally justified—sweeping bans with no exception for rape or incest. For decades, abortion foes had argued that most Americans would oppose almost all abortions if they understood what the procedure really involved. But decades of struggle had done little to change public opinion. With a sympathetic Court, abortion opponents increasingly did not see that as much of a problem. Popular opinion aside, the Court could not only reverse Roe but perhaps also hold that the authors of the Fourteenth Amendment of the Constitution believed a fetus to be a rights-holding person. And if the Court recognized fetal personhood, then abortion itself would be unconstitutional.
This history helps makes sense of what it means for the Court to reverse Roe. For years, constitutional scholars have worried about the antidemocratic potential of a Supreme Court that intervenes in major medical and legal debates (Bickel 1962). The justices, like other federal judges, have lifetime paid appointments. They are not elected and cannot be removed except by impeachment, which has been extremely rare (only fifteen judges have been impeached, including a single Supreme Court justice, and only eight have been convicted and removed the bench). Nevertheless, political scientists, legal scholars, and historians have largely dismissed concerns about the Court’s threat to democracy by stressing how rarely it breaks with popular opinion. Historically, the Court has faced devastating political costs when it issued high-profile decisions. Congress has stripped the Court of jurisdiction or changed its size (Friedman 2009). Political backlashes have limited the Court’s authority (Rosen 2006). In other instances, Americans faced with unpopular decisions have simply ignored the Court altogether.
For this reason, to conserve its own authority, the Court has generally reflected rather undermined popular will. The current Court seems set to break with this historical pattern. Reversing Roe—and doing so quickly and openly—will likely be unpopular, at least if polls are to be believed. And yet the justices seem poised not only to issue this kind of ruling but also to address guns, affirmative action, voting rights, and climate change. The Court’s approach to abortion and much else suggests that the conservative majority either believes that there will be no backlash to its rulings or that such a backlash should not matter. Either possibility would mark a major change to the way the Court operates in U.S. politics.
First, it is possible there will be no backlash. The American electorate is increasingly polarized; the realignment of the Democratic and Republican Parties, together with gerrymandering and redistricting, have created a growing number of uncompetitive seats that would limit the effect of any backlash, especially in the states that are the most likely to pass punitive abortion laws. If many Americans, especially those with resources, are still able to access abortion, there may not be a significant political movement to address the elimination of a right to choose. Other major issues, from war in Ukraine to the COVID-19 pandemic, may take precedence when voters go to the polls.
And if there is a backlash, the current Supreme Court may not be affected. It seems unlikely at the time of this writing that Congress will pass a law adding justices to the Court or imposing some other kind of reform. The loss of face in the legal community, too, may sting far less when that community is fragmented. The Federalist Society, which has served as a gatekeeper for Republican presidents looking to nominate judges to the federal bench, has also created a kind of alternative legal community, with its own values and professional opportunities. The justices have less to fear if part of the legal community will celebrate a conservative constitutional revolution.
The reversal of Roe will certainly signal major changes to law the of reproduction. States banning “abortion” will have to define that term—and may choose to sweep in common contraceptives like intrauterine devices or the morning after pill, or assisted reproductive technologies. But it will not likely stop there. A Supreme Court unconcerned about the political fallout from its decisions would break from the norms that had constrained the federal judiciary in recent decades. With no such constraints, the Court could fundamentally change and ultimately weaken American democracy.