Democrats Should Have Seen the End of Roe Coming

Goodwin argued that white evangelicals began turning to the Republican Party and emphasizing the need for a conservative Supreme Court in the wake of new laws and court decisions that expanded civil rights. “At a certain point, there was a sense that there could be some political gain and advantage by coalescing with these forces,” Goodwin said. Key evangelical leader Jerry Falwell, for example, spoke out against Brown v. Board of Education and fumed when the tax-exempt status of his segregated Christian school was threatened. Falwell’s Moral Majority was pivotal in electing Ronald Reagan in 1980, and galvanized supporters by tying anti-abortion sentiment to other conservative causes like opposition to the gay rights movement and restoring school prayer.

Abortion opponents began to transition to a judicial strategy in the early 1980s, Williams told me, after the Senate failed to approve the Hatch-Eagleton Amendment.  This would have amended the Constitution to say that the right to an abortion was not constitutionally guaranteed, but it failed to garner sufficient votes, with opposition from some Republicans as well as Democrats. (Thomas Eagleton, one of the sponsors of the amendment, was a Democrat.) “The pro-life movement then consciously shifted—there were actual strategy discussions on this among leaders in the National Right to Life Committee and elsewhere—[they] consciously shifted toward a strategy of changing policy through the Supreme Court rather than through a constitutional amendment,” Williams said. But that strategy also made it harder for Democrats who opposed abortion to remain a part of the movement: Even if they supported a nominee’s position on abortion, an otherwise liberal Democrat would have qualms about confirming ultraconservative judges.

Mary Ziegler, a professor at Florida State University College of Law who has written several books on abortion history, said that it was not enough for the anti-abortion movement to have conservative justices confirmed to the Supreme Court. Republican-nominated justices helped to uphold the right to an abortion in the 1992 ruling of Planned Parenthood v. Casey. “I think there was a real sense after Casey, the 1992 decision, that justices who were worried about popular opinion or about backlash would probably not overrule Roe. So you needed to have a particular kind of conservative who was not concerned about that sort of thing,” Ziegler told me.

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