Supreme Court realism on overturning Roe v. Wade
The future of abortion through the lens of history
Hope springs eternal, as well it should. With the Supreme Court considering a Mississippi abortion case this fall, many in pro-life organizations wonder: Is the court finally ready to overturn Roe v. Wade? It could happen, but as a quick historical review, here is an excerpt from my book Abortion at the Crossroads, which came out in February.
With legislative action stalled in the 1980s, the legislative-judicial sector of the pro-life movement concentrated on the composition of the Supreme Court. Sam Ericsson, executive director of the Christian Legal Society, calculated that the median age of the US Supreme Court was seventy-six, making it one of the oldest Courts in US history—and several justices had been seriously ill. Ericsson said two appointments would make the Court pro-life. Curt Young said, “It’s amazing to think that the abortion issue could be decided around actuarial tables.”
Ronald Reagan’s first Supreme Court pick, Sandra Day O’Connor, was a bust from a pro-life perspective. His second appointee, Antonin Scalia, became a solid pro-life justice for thirty years, and one of the 20th century’s most influential jurists. But Scalia replaced William Rehnquist, one of the Roe dissenters, so his appointment did not change the composition of the Court.
Scalia’s 98-0 Senate approval shows how relatively unpolarized the political climate was at that time. Or so it seemed. In 1986 Republicans lost control of the Senate, so the next nomination, to replace Court swing vote Lewis Powell, was inevitably a contest—but Joe Biden and Ted Kennedy turned it into a massacre. Less than an hour after Reagan nominated pro-life Robert Bork, Kennedy delivered his prepared assault: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution.” Bork lost the Senate vote, 58-42.
Reagan’s second try, Douglas Ginsburg, withdrew when NPR revealed that Ginsburg had smoked marijuana “on a few occasions” as a Harvard student and then assistant professor. The third try brought in Anthony Kennedy, who won 97-0, as pro-life conservatives hoped he would support them—but so did liberals, who studied Kennedy’s libertarian instincts. Although Kennedy said he was brought up to think of abortion as a “great evil,” and although he had once denounced the Roe decision as the “Dred Scott of our time,” the right was wrong, and the left proved right.
Let’s review the record. During the 1980s, the Court regularly strode to the plate, heard eleven abortion cases, and—from a pro-life perspective—repeatedly struck out or bunted. Major ones came up every three years. In Harris v. McRae (1980), the Court on a five to four vote did uphold the Hyde Amendment, which since 1976 has restricted federal funding of abortions. But in City of Akron v. Akron Center for Reproductive Health (1983), the Court that giveth also taketh away: the Justices invalidated requirements for informed consent and a twenty-four-hour waiting period. They axed requirements that all abortions after the first trimester be performed in a hospital, and that a parent consent to a minor’s abortion.
Then, in 1986’s Thornburgh v. American College of Obstetricians and Gynecologists case, a five to four Court said no to a Pennsylvania law that required informed consent, instructed abortionists to use the method most likely to preserve the life of a viable unborn child, and required a second physician to be present during a post-viability abortion. In 1989, though, SCOTUS gave babies a break: in Webster v. Reproductive Health Services, Justices upheld a Missouri law that prohibited the use of government personnel or facilities to perform abortions, and required ultrasound tests in pregnancies of twenty weeks or more.
Meanwhile, pro-life support kept narrowing among Democratic politicians. Representative Al Gore eight times voted for the Hyde Amendment. In 1984 he stated, in a letter to a constituent, his “deep personal conviction that abortion is wrong,” and he voted to amend the Civil Rights Act to define the term “person” to “include unborn children from the moment of conception.” In 1988, though, Senator Gore ran for president and even denied casting that vote: “I have not changed …. I have always been against anything that would take away a woman’s right to have an abortion.”
Similarly, Rep. Dick Gephardt wrote in 1984, “I have always been supportive of pro-life legislation. I intend to remain steadfast on this issue …. I believe that the life of the unborn should be protected at all costs.” In 1987, however, Gephardt decided to run for president and soon discontinued his support for pro-life legislation. Arkansas Governor Bill Clinton flatly told his state’s Right to Life committee in 1986, “I am opposed to abortion.” Clinton’s position also flipped as his presidential ambitions grew.
Pro-lifers were at a crossroads from 1989 to 1992. Abortion was at its apex: 1.6 million per year. Public opinion had moved toward abortion: the percentage of Americans saying that abortion should always be legal surged to more than 30 percent, with only 12 percent saying it should always be illegal. The rest were in the middle, and the middle was sagging: a Gallup poll showed some 61 percent opposing a reversal of Roe v. Wade.
Hope for judicial appointments remained, despite several decades of frustration regarding appointees by Republican presidents. Roe v. Wade decision author Harry Blackmun, along with Chief Justice Warren Burger (who went along with the Court majority), were Nixon appointees. George H. W. Bush’s first nominee, David Souter, was an unmarried and little-known New Hampshire Supreme Court judge who made it to the federal bench only six months before his nomination in 1990. White House Chief of Staff John Sununu said Souter would be “a home run for conservatives,” and National Organization for Women head Molly Yard said confirming him would “end freedom for women in this country.”
As New Hampshire’s attorney general, Souter had opposed the use of public funds to finance what his brief called “the killing of unborn children.” He had opposed repeal of the state’s protective abortion laws, even though Roe had invalidated them. Bush’s second nominee, Clarence Thomas, also looked to be a strong and consistent Court opponent of abortion. A last-minute sexual harassment charge almost derailed Thomas. But when he survived the Senate vote, fifty-two to forty-eight, pro-life leaders in Washington thought the political and judicial strategy might finally pay off.
I sat in on pro-life leadership meetings in Washington, DC, where White House representatives assured organization heads that repeal of Roe v. Wade was just around the corner. Those meetings grew out of an awareness that the pro-life movement had internal difficulties. Leaders of some groups did not talk with their peers at other groups, and generally mistrusted them. Among those concentrating on legislative and judicial change, divisions over legislation in the early 1980s had morphed into seemingly permanent warfare between absolutists and incrementalists—those who said, “never compromise,” and those who said, “let’s save as many babies as we can.”
I thought the movement needed a forum that could produce trust, or at least understanding. A foundation agreed with me and financed the forum for several years. The first meeting took place on April 20, 1989, in the Dirksen Senate Office Building, with Colorado’s Bill Armstrong serving as host. Senator Armstrong’s invitation noted that “decentralization has been one strength of our movement, but sometimes, when we do not fully understand the goals of some of our brothers and sisters, we may lose patience with each other or engage in criticism that could weaken the witness that all of us, through different means, are attempting to maintain.”
Armstrong’s pleas for peace had little impact at first. March for Life founder Nellie Gray said anyone who deviated from a “no exceptions” anti-abortion position was an ally of the abortionists. She said she would oppose even legislation that allowed for a life of the mother exception. She pleaded for unity concerning a no-exceptions position, unity on saving all preborn children, and unity on legislation. The most that came out of the first year of meetings was a grudging concession to what Gary Bauer, Reagan’s domestic policy advisor at the end of his second term, advocated: keep sour words within the meetings, and don’t dive into public attacks on fellow pro-lifers.
The meetings were stimulating, but sometimes fanciful. Some of the most moving testimony came from Dr. Bernard Nathanson, who had personally aborted thousands of children before the enormity hit him and he came to believe in God. His 28-minute film, Silent Scream, allowed tens of thousands of viewers to “see abortion for the first time from the victim’s perspective.” Nathanson favored a human life amendment, but meeting participants said that was politically impractical. Nathanson had a response: push for a one-person-one-vote change that would give all children voting rights, with parents determining their children’s votes, so large families would hold political power.
I chaired the meetings in 1990 and 1991, and tried to bring in as presenters historians and journalists who could introduce notes of realism. We looked at the history of righting social wrongs in America. In 1860, fewer than 400,000 of the seven million white families in the US owned even one slave. In 1990 after two decades of legal abortion, though, one-third of American families had had some contact with abortion: many offered a guilty defense of it. In 1860, anti-slavery media influenced the ideas of two-thirds of Americans. But in 1990, major media defended abortion. Knocking out slavery took a war, a military occupation, and three amendments. Even all that did not finish the job, as slavery by another name—sharecropping and Black Codes—largely returned.
Statistician Robert Lichter said 79 percent of journalists he surveyed agreed with the statement, “Abortion is a woman’s right.” Most of the rest agreed at least mildly. News stories favored abortion proponents five-to-one over pro-lifers. That made framing issues in pro-life ways nearly impossible. Christian journalist Fred Barnes argued that the pro-life movement was losing the war. Ambitious Republicans who had been pro-life were becoming neutral. Ambitious Democrats were moving from fuzzy to energetically for abortion. Barnes criticized some pro-life leaders for enabling reporters to portray pro-life leaders as mean, angry people who don’t care about women.
Think tank head George Weigel pointed out that Roe was not a liberal decision, but a reactionary one, given the American tradition of expanding rights, not restricting them. He noted that Roe had done more to encourage irresponsible male behavior than any other litigation or event. Activist Joe Scheidler was blunt: “Let’s call abortion a man’s right. A man walks away without consequence while the woman faces the cold steel of the abortionist’s instruments.” Unsurprisingly, polls showed more men than women favoring easy abortion, since more women knew it wasn’t easy.
Culture analyst Ken Myers told pro-life leaders that legal change might be hard, but changing moral convictions was much harder. He said pro-life leaders might need to give up hope for success in their lifetimes: it might take many generations. None of the leaders wanted to hear that. Many of them placed their hopes in a Supreme Court reversal of Roe v. Wade.
The first half of 1992 brought lots of waiting. But on June 29, 1992, the Court finally announced its decision in Planned Parenthood v. Casey. As expected, the vote was five to four. Not expected: it was five to four essentially approving Roe, with Souter and Anthony Kennedy (in the seat Robert Bork would have held) joining the abortion defenders.
Kennedy wrote that on matters like abortion “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” That would have surprised those who wrote and ratified it directly following the Civil War, when the question under discussion was whether to extend the Bill of Rights to ex-slaves. But what came next from Kennedy was more extraordinary: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
U.S. Court of Appeals Judge Robert Beezer said Kennedy’s sentence is “so broad and melodramatic as to seem almost comical in its rhetorical flourish.” William Bennett called it an “open-ended validation of subjectivism” that would legalize prostitution and “virtually anything else.” Robert Bork, whose prospective seat Kennedy took, called the sentence “New Age jurisprudence.”
At street level, Casey went beyond Roe in creating a high bar for state laws protecting unborn children: laws could not impose an “undue burden … a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” the ability to live on his or her own. Pro-lifers were shocked. Definitions of viability vary, but 24 weeks—down from 28 weeks a half-century ago—is now a common marker. The overwhelming majority of abortions occur before then.
Legislators in many states had passed laws precisely to save unborn children’s lives, which means placing obstacles in the path of women who believe their only way out of a difficult situation is to have an abortion. The Court was essentially locking the pro-life movement in a prison camp: You can pass any law you want, as long as it doesn’t have much effect. Pro-life leaders, like some of the women at the center of abortionists’ attention, had been seduced and abandoned. Gary Thomas of the Christian Action Council said, “Every pro-life organization I know was talking about post-Roe America.” Then came the Casey decision.
Some of the leaders maintained their optimism until November 3, 1992, hoping that George H.W. Bush would gain a second term and not nominate another Souter—but Bill Clinton won the election, with support from abortion advocates. He came through for them: he reversed the rule by which counselors were not to push abortion at federally funded clinics, reversed the Mexico City Policy that withheld funds from abortion programs overseas, and reversed the ban on abortion at military hospitals overseas. He was able to make two nominations for the Supreme Court in 1993 and 1994, when Democrats held a Senate majority. Ruth Bader Ginsburg and Stephen Breyer became two reliable votes to maintain the essence of Roe.
That’s it for the excerpt, but here’s a Saturday Series addendum based on my conversation with Hadley Arkes, founder and director of the James Wilson Institute on Natural Rights & the American Founding. Earlier this year, before the Supreme Court agreed to rule on the Mississippi law that would protect children with a gestation age of 15 weeks and above, I asked the veteran court-watcher, “What’s the likelihood of the Supreme Court taking on one of the heartbeat laws—no abortions after 6 weeks—and overturning Roe v. Wade?”
Hadley responded, “I hope the justices will take it, and I’ve been pushing that, but John Roberts seems very reluctant. He knows they’ll make themselves the focus of a political storm, but there’s no getting away from that, so I think they’ll take a variety of measures coming in from the states that restrict abortion in this case or that case, so in any instance people could look at a decision and say “Well, that looks sensible to me.”
We plan to have more from Hadley in WORLD next month. For now, let’s end with his thought that pro-life justices know how Roe “has been the central poisoning ingredient in our politics and our law …. My hunch is that they understand how poisonous this has been, and how it’s poisoned the hearings over confirmation, driven the other side to suspend all proprieties, all concerns about evidence and engaging a candidate …. I think that they do want to take hold of something that would allow them to register some vote in favor of protecting the child.”
From Abortion at the Crossroads by Marvin Olasky. Copyright © 2021. Published by Bombardier Books. All rights reserved.
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