Origins of the Anti-Abortion Movement

As you may have noticed, abortion has been in the news lately. On Wednesday December 1, the Supreme Court heard arguments in Jackson v. Whole Women’s Health, a case challenging Mississippi’s fifteen week abortion ban, and which the Supreme Court will (probably) use to overturn Roe v. Wade, or at least gut the right to abortion such that Roe v. Wade is practically overturned. If you, like me, spent anytime on twitter or talking to people about this case, you likely saw blame being placed on a variety of justices and elected officials, none of which I will go into here, because a lot of the analysis is incomplete. Over and over this week, I found myself in the middle of a mini-lecture on the history of the anti-abortion movement. I’d come to in the middle of a sentence about Justice David Souter, with no recollection of how I got there. Sort of like an abortion rights Manchurian Candidate, except instead of Solitaire, my programming was activated by tweets.

And because I was being activated by tweets, I wrote a long tweet thread about the history of the anti-abortion movement. And then I deleted it because I’m skeptical that anyone reads past the first tweet in a tweet thread, and I remembered that I pay hosting fees for this blog and I should just put my thoughts here. Please picture the following delivered in a monotone, with my eyes staring at a fixed point. If you need a reference, you can watch The Manchurian Candidate. Also if you do, let me know because I watched several John Frankenheimer movies this year and each one blew my mind but my friends are getting bored of hearing about them and I need new people to rave to.

Since I do not yet have the credentials to turn this into a classic movie blog, we will turn now to the subject of our article, the development anti-abortion movement. The rise of the religious right, and the organized opposition to abortion goes back to the 1970s, and was inspired by a Supreme Court decision. It's just that the decision was not Roe v. Wade. When Roe was decided in 1973, it was an uncontroversial case. The decision was 7-2, and it was written by Justice Harry Blackmun, who was appointed to the court by President Richard Nixon. When President Gerald Ford (a Republican) appointed Justice John Paul Stevens to the court in 1975, he did not face a single question about abortion.

The case that inspired evangelical Christians to jump into politics was Green v. Kennedy, a tax case decided in 1970 but the origins of that case go all the way back to Brown v. Board of Education, the 1954 case that held that segregation in public schools was unconstitutional. After Brown v. Board, many white parents pulled their children out of public school and decided to send them to private schools, which were still allowed to be segregated. The results were dramatic. One county in Mississippi went from 771 white students in public school the year before the schools were integrated, to 28 students after the schools were integrated. Two years in, there were no white students in Holmes County, Mississippi public schools.

These private schools, known as "segregation academies" were able to stay afloat because they had tax-exempt status. Black parents from Holmes County sued, arguing that an institution with discriminatory policies could not be considered a charitable institution. The Supreme Court, and President Nixon, agreed. The Court denied new segregation academies tax exempt status until further review, and President Nixon ordered the IRS to deny tax exemptions to any segregated school. This meant the schools would have to pay taxes on any money (tuition) they made and any donations to the schools could not be claimed as a charitable donation.

And here comes a familiar character to anyone who is familiar with the religious right. Jerry Falwell, an evangelical church leader in Virginia who also operated a segregation academy known then as Lynchburg Christian Academy (today known as Liberty Christian Academy, the K-12 school associated with Liberty University). Falwell had publicly opposed civil rights but was not part of an organized movement until he was approached by Paul Weyrich, a conservative political strategist looking to harness the power of the evangelical vote. Never mind that it had been Nixon who had ordered the IRS to deny tax-exempt status to schools, Weyrich (who cofounded the Heritage Foundation) was ready to mobilize religious leaders and their congregations against Democrats and he finally had enough frustrated religious leaders to do it.

But while the leaders of evangelical churches were motivated by the state's refusal to financially support race discrimination, Weyrich knew that would not be enough to inspire people to show up to vote. In 1979, Weyrich pivoted to a strategy opposing abortion.

Today, you can generally assume that Republicans oppose abortion and Democrats support it, but that was not always true. A 1972 poll found that only 59% of Democrats supported abortion, while 68% of Republicans did. Even more surprising, 56% of Catholics in 1972 supported a person's right to obtain an abortion if they chose. Most evangelicals did not give abortion a second thought in 1960s and 1970s, the large minority of Catholics who opposed abortion made it a Catholic issue.

Not so after the midterm elections of 1978 and the election of Ronald Reagan in 1980. With President Reagan, evangelicals felt that they finally had a representative in the Oval Office. Never mind that President Jimmy Carter was actually an evangelical Christian while President Reagan was a Presbyterian, and our first divorced President. As governor of California, Reagan had actually signed a law that legalized abortion. But by the time he was campaigning for president, Reagan was vocally anti-abortion and pledged to only appoint Supreme Court justices who were also anti-abortion.

President Reagan was helped on this front by the Federalist Society. The Federalist Society started in 1982 as groups of conservative law students who wanted to bring conservative speakers to law schools. As the society expanded and the people who founded it became more influential in the law, members of the Federalist Society began to use their influence to put conservative lawyers into positions of power.

Prior to the 2000s, Supreme Court appointees were a gamble for presidents. A president would select a highly-intelligent lawyer or a respected judge who he believed shared his ideology, but have no control over what that judge did once they arrived to the court. President Eisenhower, when asked if he made any mistakes in his presidency said “I have made two mistakes, and they are both sitting on the Supreme Court.” President Eisenhower was referring to Chief Justice Earl Warren and Justice William Brennan. Chief Justice Warren presided over a court that ensured the greatest expansion of individual rights in American history, and Justice Brennan is one of the most progressive justices to ever sit on the court.

Eisenhower wasn’t the only one who made a mistake. Reagan, who pledged to appoint only anti-abortion justices appointed Justice Sandra Day O’Connor and Justice Kennedy, both of whom were instrumental in upholding the right to abortion in Planned Parenthood v. Casey. And President George H.W. Bush appointed Justice Souter to the court, who also went on to vote in support of abortion rights, and in favor of Gore in Bush v. Gore, the case that ultimately decided the 2000 election. Which was the final straw for conservatives, who started to demand better vetting of Supreme Court nominees in the hopes that there would be “no more Souters.”

The six conservative justices currently on the court all have ties to the Federalist Society, and the group’s influence only increased during the Trump administration. Like everything in our country, the Supreme Court has become far more partisan, meaning that the outcomes of big, ideological cases are far more predictable. And not just in this term, but probably for terms to come. There’s always the possibility that one of the newest justices could become less conservative the more time they spend on the court, but because of the intense vetting the Federalist Society puts their picks through, it’s doubtful.

You may be asking yourself, why does any of this matter? Who cares how we got here, the important thing is we’re here and we need to respond. I think it matters for two reasons, one that’s important if you do not really care about abortion but care about other progressive causes (which, if you made it this far, I genuinely thank you for your attention) and one that matters if you really care about abortion.

If you do not care about abortion, the success that the religious right, Federalist Society, and conservative legal movement had in demolishing Roe should still worry you because of why the religious right got started. The religious right started because of white supremacy and anti-Black racism. And nothing evangelicals have done has signaled that they have changed their tune on racial justice. If anyone believes they are going to stop once they got rid of abortion, they are in for a surprise. Because now that Roe is on shakier ground than ever, lawyers have already turned their attention to laws that protect Indigenous people, in the hopes of beginning to chip away at civil rights laws. And the religious right has long opposed gay rights, supported increasing religion in American life, and opposed pornography, so just about everyone has some reason to be worried.

If you do care about abortion and you’re energized and looking for ways to respond to this latest assault on Roe, I believe that the religious right’s playbook on abortion can offer some strategies to rebuild abortion rights and reproductive justice if Roe is gutted. While Roe will stand or fall because of the Supreme Court, that case is only before the Supreme Court because of state law. Since 1973, pro-choice advocates have largely relied on the Supreme Court to protect abortion rights, while anti-abortion advocates have passed laws to undermine abortion in every state. There was not a sustained, proactive campaign to protect abortion rights until several years ago, and it wasn’t enough. If Roe fell tomorrow, the majority of US states would have no constitutional or statutory protections for abortion. Whatever happens at the court, pro-choice advocates have to dedicate as much (or more!) time to passing state laws as they do to court cases.

In addition, pro-choice advocates can take a page from the Federalist Society book when it comes to selecting judges and candidates. When President George W. Bush wanted to appoint Harriet Miers to the court to fill retiring Justice Sandra Day O’Connor’s seat, he faced immense pushback from the Federalist Society. Miers did not have a robust judicial record and more importantly, the members didn’t know her. Members did not know if they could count on her to be a solid opponent of abortion rights, and they spoke out against her nomination, lobbying the president and writing op-eds. In the Democratic party, there are many people who say they are pro-choice to gain votes, and when the time comes, take no action to codify the right to abortion into federal law. But there are elected officials and judges who are unwaveringly pro-choice, and consider protecting abortion access to be one of the most important policies to pass. Those are people we know. And those are people that we, as pro-choice advocates, should be supporting with our votes, our dollars, and our advocacy.

The religious right has already shown us how we can win on abortion, but it is going to mean we have to operate very differently than we have in the past. But that is a stretch we have to make, because the history of the religious right shows us that they will not stop with abortion, and we cannot be caught lying down on the job again.