Nation/World

Twin Republican strategies brought the antiabortion movement to the cusp of victory in the Supreme Court

The Supreme Court’s oral arguments over the future of abortion restrictions put into sharp relief the twin forces that appear to have brought the high court to the edge of either overturning or dramatically curtailing the landmark 1973 Roe v. Wade decision, which gave women nationwide a right to most abortions.

Decades of political organizing by abortion opponents have transformed the Republican Party into a force for remaking courts, and a separate revolution in law schools has created the intellectual foundation to make it possible.

The political fruits of those efforts were on display Wednesday in the form of a clear conservative majority on the court, including three appointments by President Donald Trump. But the argument made to the justices by Mississippi Solicitor General Scott Stewart was tailored to appeal not to politics but a legal revolution that prized the original intent of the nation’s founders.

“I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text,” he said.

The confluence of those two movements has helped elect presidents to appoint new justices to the court and trained those justices in a new view of the law, which rejects much of the liberal jurisprudence of the 1960s and ‘70s. The result is a new Supreme Court majority that appears increasingly emboldened for change.

“Evangelicals developed a strategy, stuck with it and it paid off,” said Ralph Reed, the former leader of the Christian Coalition and a campaign adviser to Ronald Reagan and George W. Bush. “The significance of this moment for that constituency is that they bet on a long-term, historical, multi-decade transformation of the federal courts in a way that would no longer be hostile to their values.”

Conservative legal scholars and activists have been celebrating in recent days, as the fruits of their efforts appear poised to transform how the Constitution is used to govern the American people. But their focus remains somewhat distinct from the antiabortion cause.

“Abortion was not the motivating factor,” said Edwin Meese, a former Reagan adviser who has for decades led the fight for conservative legal reforms. “It was a matter of being honest and faithful to what the Constitution actually said.”

The shifts are expected to come to a head next year, when the justices offer their decree on the Mississippi law, which prohibits most abortions in the state after 15 weeks of pregnancy. That would abandon the standard set by Roe and subsequent case law that recognizes a woman’s right to privacy up to the viability of the fetus, or about 24 weeks of gestation.

Questions asked at oral arguments and their past rulings suggested that the six justices appointed by Republican presidents, including the three new Trump appointees, are open to overturning or restricting Roe, while the three Democratic appointees are not. That represents a remarkable shift from as recently as 1992, when the court upheld the core conclusions of Roe.

At the time Roe was decided in 1973, abortion was far from a partisan issue. As California’s governor, Reagan had signed a 1967 law permitting abortion, and Sen. Thomas Eagleton, D-Mo., the first vice-presidential nominee on the Democrat’s 1972 ticket, was known as a prominent abortion opponent. Even President Joe Biden, as a U.S. senator from Delaware, voted in 1982 for a constitutional amendment to let states outlaw abortion.

But the politics of abortion had begun to transform political alignments in the country that would be clear by the early 1980s. Republicans like Reagan saw an opportunity to make inroads among the blue-collar New Deal coalition by appealing to social conservatives, and at the same time evangelical church leaders found themselves getting more involved in the political process.

“Roe created a single target - if you control the Supreme Court you win,” said Mary Ziegler, a professor at Florida State University College of Law who has written on the history of abortion in America. “It changed how the antiabortion movement approached politics.”

At the same time, Ziegler said, a separate conservative legal movement was rising through campus groups, aimed at a different approach to jurisprudence. Initially, groups like the Federalist Society, which promoted an originalist reading of the Constitution, were cool to the antiabortion cause.

“There were too many libertarians in the early Federalist society who were pro-choice,” Ziegler said. “It was a divisive issue.”

But over time, with the help of Reagan, the controversy over his failed Supreme Court nomination of Robert Bork and other shifts in party identification, abortion became a partisan issue, and conservative legal theorists fully welcomed the antiabortion cause.

For the past several decades, overall views of abortion have remained fairly stable, according to national polling, but that masked a political self-sorting. Between 1979 and 2021, the share of Democrats who said abortion should be legal under any circumstances rose from 20% to 50%, according to Gallup polling. The share of Republicans who said the procedure should be illegal in all cases went from 14% to 31%, reflecting in part the heightened influence of evangelical voters.

By the time Trump, previously an abortion rights businessman, was mounting a presidential campaign in 2015, the issue had long since become a litmus test in the party. After winning the nomination and selecting an activist abortion opponent, Mike Pence, as his vice president, Trump promised to pick his Supreme Court nominees from a list vetted by leaders of the Federalist Society. That won over many evangelical organizers who had been wary of his politics.

“The single-biggest issue, that brought nine out of 10 Republican voters home for Donald Trump, just like nine out of 10 voted for Mitt Romney, was the Supreme Court,” then-Senate Majority Leader Mitch McConnell, R-Ky., said at a 2019 Federalist Society event.

In his single term, Trump’s ability to appoint three new justices to the court, including a replacement for court liberal Ruth Bader Ginsburg, dramatically shifted its focus.

As abortion opponents have grown more powerful in their party, Republicans also have benefited from a lopsided intensity among voters around the issue, with more opponents considering the subject a top rationale for voting than did those who support abortion rights.

In last month’s Virginia elections, for example, 8% of voters told pollsters that their top issue was abortion. Of that group, nearly 6 in 10 voted for Republican gubernatorial nominee Glenn Youngkin, who supported more abortion restrictions in the state, even though the Democratic nominee, former governor Terry McAuliffe, tried to make his support for abortion a major issue in the race.

Those dynamics could shift in the coming years, if the high court clears the way for more abortion restrictions. Democrats and their legal allies find themselves adjusting their strategies in the meantime, as they face the prospect of a conservative Supreme Court majority that could last decades.

House Democrats passed a bill this fall that would guarantee the right to abortion through federal law, but it faces a difficult path in the Senate. Two Democratic senators and 43 members of Congress have signed on to a separate bill that would add four seats to the court, with the goal of weakening the conservative majority.

“Elected Democrats have not yet grappled with the extent of the problem which we face, which is a Supreme Court that will be rigged against us for the next 30 years,” said Brian Fallon, co-founder of Demand Justice, a group that supports expanding the court. “I don’t think it is a given that Democrats snap to attention.”

Others have grown optimistic that any significant weakening of the Roe precedent will lead to new divisions in the Republican Party, straining the bond between antiabortion activists and elected leaders, as voters begin to feel the effect of states that outlaw or severely restrict the practice.

Sixteen states have passed pre-viability bans on abortion that have been blocked by courts or have not gone into effect because of the Roe precedent. In the latest Gallup polling, 32% of Americans want abortion to be completely legal and 48% want it to be legal with limits. Only 1 in 5 want to make the practice illegal.

“It will be interesting to see if there is a dispute between the policy types and the politics types,” Christina Reynolds, a vice president with Emily’s List, which works to elect abortion rights supporters, said about the political hazards for the GOP. She noted that Democrats in Congress were generally more aggressive in responding to court arguments Wednesday than Republicans were in defending them.

“Republican politicians know they are on the wrong side of voters and they have stopped crowing about it,” she said.

On law school campuses, there have been new efforts in recent years to replicate some of the Federalist Society’s success with more aggressively ideological organizing efforts that could ultimately groom liberal judges. One group, the People’s Parity Project, has started groups for law students on 15 campuses, including Harvard University.

“There are some very practical lessons,” said Molly Coleman, executive director of the group. “They are committed. That have community. They have clear goals. They hold each other accountable. They keep each other from straying.”

But the antiabortion effort also shows little sign of waning. Arkansas state Sen. Jason Rapert said antiabortion lawmakers like himself feel emboldened by the Supreme Court’s recent decision to keep in effect, pending a later review, a Texas law that allows civil penalties against those involved in abortions after six weeks of pregnancy.

He plans to introduce his own version of the Texas abortion ban in a special legislative session on Tuesday.

“The soul of this country is waking up to what has been a silent genocide,” Rapert said.

The conservative legal community is also vowing to fight on.

“We do have a majority of justices on the court right now who are explicitly committed to originalism,” said Carrie Severino, president of the Judicial Crisis Network, which supported Trump’s nominations to the court. “There is always the next generation of judges coming up.”

The Washington Post’s Caroline Kitchener contributed to this report.

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