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Having discussed—and questioned—the legal reasoning in Justice Alito’s draft opinion intended to overturn Roe v. Wade, I now turn to the political processes that brought the Supreme Court to this impending decision.
Because of the separation of church and state, citizens can hold strong religious beliefs about matters of sexuality, marriage and reproduction without expecting those beliefs to be written into law. They can be morally opposed to premarital sex, adultery, homosexuality, divorce, contraception or abortion in their personal lives without expecting their elected leaders to ban or criminalize those behaviors. Historically, states have often written Christian morality into law, but in modern times religious pluralism and broader interpretations of personal freedom have worked to liberalize such laws. The liberalization of abortion law that was already underway before Roe v. Wade was part of this general movement. That raises the fascinating question of how and why one of our major political parties would take up the anti-abortion cause and make opposition to Roe a litmus test for selecting Supreme Court justices.
A striking difference between the 1972 Roe decision and Justice Alito’s draft Dobbs decision is that the Roe decision was much more bipartisan. It was decided by a 7-2 majority, including five justices appointed by Republican presidents and two by Democratic presidents. The current decision comes only from the five most conservative justices, all appointed by Republican presidents. (And the last four of those appointments were made by presidents initially elected without winning the popular vote.)
In 1972, Roe v. Wade was somewhat controversial, but it did not initially provoke the firestorm of protest that Alito’s leaked opinion is provoking now. Some states were already moving toward legalization, again in a bipartisan way. One of the most liberal laws was passed by the state of California in 1967 and signed by its Republican governor, Ronald Reagan. At the time, California was a heavily Republican state. It voted Republican in 9 of 10 presidential elections between 1952 and 1988, only becoming reliably Democratic in the 1990s.
In 1972, even evangelical Protestants were not solidly anti-abortion. Many of them thought of abortion as mainly a Catholic issue, like contraception. When the country elected John Kennedy as its first Catholic president in 1960, he had to assure Protestants that he would respect the separation of church and state and not uphold the Catholic position on contraception. Few Protestants objected when the Supreme Court struck down Connecticut’s contraceptive ban in 1965. In 1971, the Southern Baptist Convention passed resolutions supporting abortion in cases of rape, incest, fetal deformity and threats to the health of the mother.
Fifty years ago, the Republican Party was known much more for its economic conservatism than its moral or religious positions. Traditionally, most Catholics in the North and evangelical Protestants in the Deep South had been Democrats. If Republicans had a moral crusade, it was mainly against “godless Communism.”
What changed all this was the rise of the Religious Right in the 1970s and 80s and its strong alliance with the Republican Party. Contrary to popular belief, the first issue to encourage that allience was not abortion, but rather the desegregation of religious schools. (See Randall Balmer’s “The Real Origins of the Religious Right” and Robert B. Horwitz’s America’s Right.)
Because the Bible Belt consisted mainly of the former Confederate states (along with Missouri, Oklahoma and southern portions of several midwestern states), evangelical religion was closely associated with racial segregation. Southern churches had a long history of finding Biblical justifications for slavery and segregation. In the 1970s, the IRS started rescinding the tax exemptions of segregated religious schools. The case that got the most attention was Bob Jones University, which lost its exemption in 1976. Republicans sided with the schools and denounced the Carter administration, although the IRS policy had actually begun during the Nixon presidency. Courting evangelical voters became part of the “southern strategy” by which Republicans attracted voters disenchanted by the strong Democratic support for civil rights. But framing the issue as religious rather than racial allowed Republicans to claim some higher moral ground.
Taking a strong stand in favor of “family values” and against abortion was even more useful to the Republican Party. It was less associated with segregation and appealed to Northern Catholics as well as Bible-Belt Protestants. Republicans aligned themselves with televangelist Jerry Falwell’s “Moral Majority.” Falwell had also opposed school desegregation in the 1950s, saying, “When God has drawn a line of distinction, we should not attempt to cross that line,” but by the 1970s he was better known for strong stands against abortion and homosexuality. Republicans also supported the National Right to Life Committee founded by the Catholic bishops. James Bopp, the general counsel of that organization, wrote the anti-abortion plank of the 1980 Republican Party platform. Who ran on that platform? Ronald Reagan.
Republican politicians could use abortion as a cultural wedge issue to help get their candidates elected, while still pursuing what I regard as their primary mission—economic policies favoring corporations and the wealthy. That helps explain the peculiar combination of economic libertarianism and moral authoritarianism in Republican thinking today. Republicans seem determined to force poor pregnant women to give birth, but equally determined to make them fend for themselves once they do so. In saying this, I am not questioning the sincerity of religious people who believe that a human soul is created at conception. I am saying that many politicians appeal to those believers not because they share their deep moral convictions, but because they need their votes to implement a very different agenda. Donald Trump is perhaps the best example of someone who “got religion” purely for the sake of political expediency.
While the “pro-life” movement has succeeded in making the abortion issue far more salient than it was in 1972, it has not succeeded in actually turning most Americans against legal abortion, especially in early pregnancy or pregnancies resulting from nonconsensual sex. Supporters of Roe outnumber opponents by almost two-to-one. Republicans have had to be very lucky—and somewhat underhanded—to get so many Catholic, anti-abortion conservatives onto the Court. (All five of the anti-Roe justices were raised Catholic and/or educated in Catholic schools. Gorsuch and Kavanaugh attended the same Jesuit school, Georgetown Prep.)
Both the electoral college and the composition of the Senate overrepresent small, rural states like Wyoming in comparison with large, urban states like California. Given a sharply divided electorate, Republicans have used these advantages to control the presidency and/or the Senate even when they failed to win an actual majority of the presidential or congressional vote. Republicans have won the popular vote in only one of the last eight presidential elections (George W. Bush’s reelection in 2004), and yet they hold six of the nine presidential appointments to the current Court. In 2016, Senate Majority Leader Mitch McConnell blocked the Senate from even considering President Obama’s last Supreme Court nominee, making up a rule that nominations shouldn’t be considered in an election year. In 2020, he reversed his position so that President Trump’s nominee could be rushed through several weeks before the election. These machinations gave Trump the most appointments in a single term since Reagan and created the most radically conservative Court in almost a century. Republican nominees also misled Senate moderates by expressing support for Roe as a precedent to be respected, then revealing their judicial radicalism once they were on the bench.
All this has resulted in a most peculiar situation, where the American people are now asked to believe that the Supreme Court was simply mistaken in pronouncing an important women’s right fifty years ago. Justice Alito’s protestations to the contrary notwithstanding, that opinion also calls into question an entire set of sexual, marital and reproductive rights recognized over the past six decades, rights that most Americans would like to keep. While this may not be as critical as Republican attempts to weaken voting rights, it is hardly good news for our democratic values and institutions.