Pro-lifers played the long game
Early pro-life actions kept Roe v. Wade unsettled, contributing to its overturn in Dobbs v. Jackson Women’s Health
The news broke at 10:10 a.m., Eastern time, on Friday, June 24:
The Supreme Court had ruled 5-4 in favor of overturning Roe v. Wade, a case that seven justices in 1973 had used to protect an invented constitutional right to abortion and invalidate protections for unborn babies nationwide. It meant the end of an era and a future of new possibilities and challenges for the pro-life movement.
Within hours, existing pro-life laws in states like Missouri, South Dakota, and Kentucky took effect, protecting unborn babies from abortion in most cases. Abortion facilities in several states announced their closure. Outside of the barricaded Supreme Court building, pro-lifers shouted, waved signs, cried, and hugged as they celebrated the long-anticipated decision.
The phrase of the year for pro-lifers had been “cautiously optimistic.” When in May 2021 the Supreme Court first agreed to hear Dobbs v. Jackson Women’s Health Organization, the case over a pro-life Mississippi law, some pro-life legal experts were surprised.
The court had dozens of other possible abortion cases to choose from, including ones involving abortion restrictions like parental consent laws. The one the court chose featured an all-out ban on abortions after 15 weeks, which went beyond the court’s precedent of allowing abortions up to viability, roughly 24 weeks. The move signaled a willingness to reconsider Roe, although the court could still nominally uphold Roe while severely debilitating it by upholding the 15-week ban.
But Mississippi Attorney General Lynn Fitch in her brief in the case called for Roe’s overturn. The justices seemed OK with the idea when they heard oral arguments on Dec. 1, leaving pro-lifers even more “cautiously optimistic” than before.
The caution continued among leading pro-life groups, even after a leaked draft opinion published by Politico on May 2 showed an opinion in which the majority of justices were willing to agree that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” But it was just a draft: They knew things could change before the final opinion.
The final majority opinion kept that part and a lot more word-for-word, spelling the end of Roe and a victory for the pro-life movement as it returned the abortion issue to the states for them to legislate. It was not the end of the battle, but significant for thousands of unborn lives in states willing to enact protections.
As the majority of justices acknowledged in the decision, Roe and the 1992 Planned Parenthood v. Casey decision affirming it “enflamed debate and deepened division” on the abortion issue.
If pro-lifers had allowed it to blow over, Roe may never have ended. But instead, this Dobbs decision was the culmination of decades of work from a diverse pro-life movement that refused to allow abortion and Roe to become settled law. I spoke with longtime pro-lifers about how the various branches of the movement worked early on to keep Roe unsettled.
THE 1973 ROE V. WADE DECISION unsettled 25-year-old grad student Peggy Hartshorn (now board chair of Heartbeat International) when she heard about it on NPR while driving to meet her Ohio State University dissertation adviser.
As soon as she could get to a phone, she rang her husband, an attorney with access to the telefacsimile machine in the Federal Courthouse Library in Columbus that could produce copies of the new Supreme Court decision. She wanted to read it for herself to see if the reports of a ruling so antithetical to the right to life were true.
After reading it, she searched in a phone book for a phrase she had heard before: “Right to Life.” On the phone, she told the president of Columbus Right to Life she was a Ph.D. English student and wanted to help. The group was desperate for volunteers, so she quickly joined as the education director.
The strategy? To educate people that life began at conception. Hartshorn remembers the slide presentation created by pro-life educational leader Dr. Jack Willke that Columbus Right to Life would use to introduce people to the issue: its images of fetal development and of the different procedures used in abortions.
“We thought that through major educational campaigns, people would, in a sense, organize themselves,” Hartshorn recalls. “And work toward what we thought was the only solution at that point, which was to amend the Constitution with a human life amendment.”
An amendment seemed to be the only solution because other legislative avenues had not worked: Within two months of the Roe decision, Rhode Island passed a law that called unborn children persons and prohibited abortions in all cases except to save the mother’s life.
The state appealed lower court rulings against the law to the United States Supreme Court in a case that would have challenged Roe, but the Supreme Court declined to consider the case. The law was too similar to the pro-life Texas law struck down in the Roe decision.
Lobbyists had better success protecting taxpayer money from funding abortion: Chuck Donovan, now the president of the Charlotte Lozier Institute, landed a job at National Right to Life as a Capitol Hill lobbyist thanks to a paper he wrote about recipients of the federal government’s Title X family planning funds that were performing abortions.
Government funding of abortion became a theme of his work: He created and maintained a voting record for National Right to Life, printing out the record at a print shop in the back of a church in Manassas, Va., and spending hours double-checking the thousands of x’s and o’s documenting votes on the Hyde Amendment, a budget rider that since 1976 has prevented federal funding of abortion. He helped gather signatures on a congressional brief in defense of the Hyde Amendment when the issue went before the Supreme Court and celebrated when the court in 1980 handed down a 5-4 decision upholding it.
But, over the next 10 years, Capitol Hill lobbyists and lawmakers would come to realize that the amendment efforts wouldn’t produce fruit. Usually, the amendments didn’t even make it to a vote.
On top of that, by the 1980s, the movement was split over two approaches: a Human Life Amendment that would define babies as human from the moment of conception and a Human Life Federalism Amendment that would return to the states the power to legislate on abortion. Even with a pro-life majority in Congress and Ronald Reagan as president, both failed. The amendment efforts were at an end.
AS ALL THIS PLAYED OUT IN D.C., two branches of the pro-life movement began to grow into prominence: pro-life direct action and the pregnancy help movement. As legislative efforts stalled, some pro-lifers turned to these.
Monica Migliorino Miller started counseling women on the sidewalks of abortion facilities when she was 23. In 1978 at age 24, she became involved with pro-life direct action when she participated in her first sit-in at an abortion facility, an event organized by Joseph Scheidler, a so-called architect of nonviolent abortion protest.
On March 11, she and 26 others pushed past the security guard at Concord Medical Center and used their bodies to block the hallway to the abortion procedure rooms. Miller and at least one other woman in the group passed out pamphlets and tried to talk with the clients gathered in the waiting room. The police soon arrived to make arrests—Miller’s first—and the group spent the day in jail.
From there, Miller went on to organize a few “rescues” on her own in Chicago and in Milwaukee while also continuing to offer help to women outside of abortion facilities and, sometimes successfully, convincing them to keep their babies.
The pro-life rescue movement took off in 1988, when police arrested 1,300 pro-lifers with Randall Terry’s Operation Rescue for blockading abortion clinic entrances in Atlanta during the Democratic National Convention. Some pro-lifers didn’t appreciate the image the method gave to the pro-life movement. But for some, participating was a matter of conscience (such rescues continued until Congress passed the Freedom of Access to Clinic Entrances (FACE) Act in 1994, and largely shut down the previously booming sit-in movement).
“We felt that doing these rescues—and I still feel very strongly—the unborn deserve this protection,” Miller explained in 2022. “And if my life was at stake, if somebody was about to murder me, wouldn’t you want someone to come along and interfere with, you know, the violence that’s going to happen?”
That same insistence on the humanity of the unborn even led Miller and other pro-life activists into the dumpsters behind abortion facilities, where they would sift through the trash to find the bodies of aborted babies. She recalls collecting 600 aborted babies from behind a single Chicago abortion facility between February and April 1987. Over the years, Miller stored boxes of aborted babies in her apartment, arranging proper burials and photographing the victims of abortion—their perfect, translucent hands and feet, their tiny, mutilated bodies.
“I think that exposing the reality of abortion contributes to the reversal of laws like Roe v. Wade,” said Miller. “[A picture] shuts down the conversation because they can’t deny this is a human hand, this is a human foot. This is a human leg, completely cut apart.”
Back in Ohio, Hartshorn was learning how legalized abortion complicated decisions for pregnant mothers. The Columbus Right to Life office in the 1970s would get calls from women asking for help: pregnant women who felt pressured to have an abortion from friends or family and needed another place to live.
Hartshorn and her husband in their late 20s started housing some young women in the front bedroom of their one-bathroom Victorian-style house in Columbus. She said they thought of these women like their daughters, doing it all with them from hosting birthday parties to crying with them as they struggled to decide between adoption and parenting.
Through her involvement with Columbus Right to Life, she also met women who had been through abortion and learned about how the experience traumatized them.
During those years of hosting young mothers, Hartshorn heard about pro-life pregnancy centers for the first time. Although such centers had existed before Roe, the 1980s saw growth. The Christian Action Council, a group that had once focused on political lobbying, opened its first pregnancy center in Baltimore in 1980. In 1983, when the final amendment effort failed at the federal level, the group turned its focus to developing pregnancy centers. The group’s leaders eventually changed the name to Care Net.
Two years after hearing about crisis pregnancy centers at a 1978 Ohio Right to Life convention, Hartshorn took a similar turn, shifting her focus from the local Right to Life group to starting, with her husband, a 24-hour pregnancy help hotline and pregnancy center.
For six months before they opened the office, the hotline phone sat on an antique wooden stand in their bedroom, where they’d take calls even in the middle of the night, listening to women facing crisis pregnancies and offering resources to help. The hotline moved to the pregnancy center after its doors opened on Jan. 22, 1981, the anniversary of Roe.
AS THE DIRECT ACTION and pregnancy help branches of the movement grew, activists on the political and legislative sides of the issue formed a new strategy for overturning Roe v. Wade: Instead of focusing on amending the Constitution, they turned their eyes to defeating it through the courts.
Americans United for Life senior counsel Clarke Forsythe remembers first hearing the strategy articulated at the 19th-century Palmer House Hotel in Chicago in March 1984. Hundreds of pro-lifers from all over the country attended the one-day conference in the hotel’s ornate ballroom: law professors, historians, litigators.
At the time, Forsythe was a volunteer at Americans United for Life, 25 years old and fresh out of law school. But when he officially joined Americans United for Life as staff counsel in 1985, the idea of passing state legislation calculated to pose nuanced challenges to Roe in the federal courts and slowly chip away at the “right to abortion” was the leading strategy.
That strategy brought him on what he remembers as his first trip to the Supreme Court in November 1985. The case was Diamond v. Charles, a lawsuit over a 1979 Illinois law requiring abortionists to get parental consent before performing an abortion on a minor. Forsythe’s boss, Dennis Horan, argued the case before the court alone. The state of Illinois had not appealed the lower court’s ruling against the law, leaving the task of defending the law to the pro-life pediatrician Eugene Diamond, whom Horan represented.
The next April, the Supreme Court unanimously dismissed the appeal, holding that since the state apparently had no desire to uphold the law, Diamond didn’t have jurisdiction to defend it. Later that year, the court ruled against a pro-life Pennsylvania law in the case Thornburgh v. American College of Obstetricians and Gynecologists, argued the same day as the Diamond case.
Those attempts to chip away at Roe failed. But one week after the Thornburg decision, President Ronald Reagan announced the retirement of Chief Justice Warren Burger, a member of the Roe majority, and the nomination of Roe dissenter William Rehnquist to take Burger’s place as chief justice. Reagan also said he would nominate pro-life Judge Antonin Scalia to fill the empty seat.
“We practically danced down the street—Dearborn Street in Chicago, where our office was—because we were thrilled by his nomination,” said Forsythe.
Another thrill came with the nomination of pro-life Clarence Thomas by President George H.W. Bush in 1991. David Souter’s nomination the year before had been less thrilling, considering his track record of approving abortion on the New Hampshire Supreme Court. In a bitter 1992 ruling that pro-lifers had hoped would bring the end of Roe, he along with Reagan appointees Sandra Day O’Connor and Anthony Kennedy joined the majority to reaffirm Roe.
Forsythe remembers processing the disappointment while watching TV coverage of the decision from his office in Chicago. He and his colleagues had worked on briefs for the Casey case, providing the Supreme Court with information that could help justify the overturn of Roe. But, after taking media interviews and holding a press conference about the decision, the next day “we had to start anew,” said Forsythe.
That year, the abortion numbers were higher than ever. In the fall, Bill Clinton won the presidential election. Forsythe and others knew they wouldn’t get a majority willing to reconsider Roe for years: “That was a very difficult time to persevere and continue to stay focused on the fight against Roe v. Wade.”
BUT THE LOSSES at the Supreme Court and in the White House were also motivating to pro-lifers. It spurred 45-year-old Peggy Hartshorn to step into the role of president at Alternatives to Abortion International, which would soon be renamed Heartbeat International. She and others on the board were convinced that the political climate meant pregnancy help could be the only way to reduce the number of abortions, and they needed someone to take charge. Up until that point, she had been working as a college English teacher, doing her volunteer pro-life work on the side.
Hartshorn bought a computer and a five-drawer filing cabinet and moved the headquarters into a storage closet at her Columbus pregnancy center. She started answering the phones to connect pregnancy centers with each other, provide them with training manuals, and give other support to help fuel the growth of centers around the world.
Around that time, Alternatives to Abortion International had about 250 affiliates. The Casey decision also spurred many existing centers to introduce medical services, including Hartshorn’s own center in Columbus, enabling centers to show the reality of the unborn human in another way.
By 2005, the number of Heartbeat affiliate centers had surpassed 1,000. In a 2021 amicus brief at the Supreme Court in the Dobbs case, Heartbeat International noted the sheer number of pregnancy centers and their increasing services: By then, pregnancy centers outnumbered abortion facilities nationally 3 to 1. Heartbeat cited this network as a reason why women don’t need abortion or Roe.
Despite the pro-abortion political wilderness that came after Casey, pro-lifers continued to target Roe at the political level, electing politicians who promised to pass pro-life laws that would challenge Roe from all sides: bills protecting babies from abortion once they’re capable of pain or have a detectable heartbeat or because of sex or disability.
Pro-life groups backed the controversial presidential nominee Donald Trump, banking on his pro-life promises, including to nominate conservative justices to the Supreme Court. In 2021, the year the Supreme Court agreed to take up the Dobbs case, states passed more than 100 pro-life bills.
Those laws faced a friendly court. With George W. Bush’s Justice Samuel Alito and three Trump nominees joining Justice Thomas, pro-lifers were finally “cautiously optimistic” that they had a court willing to at least reexamine Roe.
The eventual overturn replaced cautious optimism with a bittersweet thankfulness in many pro-lifers. Monica Migliorino Miller said she had prayed for Roe to be overturned, but was still saddened that it was so long in coming: “All along we’ve said this was a bad decision. … And we were right all along. But in the meantime, 62 million human beings were exterminated.”
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