In the light of day today, the political fallout from Texas’s anti-abortion S.B. 8 law and the Supreme Court’s acceptance of that law continues to become clear.
By 1:00 this afternoon, the Fox News Channel had mentioned the decision only in a 20-second news brief in the 5 am hour. In political terms, it seems the dog has caught the car.
As I’ve said repeatedly, most Americans agree on most issues, even the hot button ones like abortion. A Gallup poll from June examining the issue of abortion concluded that only 32% of Americans wanted the U.S. Supreme Court's 1973 Roe v. Wade decision overturned, while 58% of Americans opposed overturning it.
"’Overturning Roe v. Wade,’" Lydia Saad of Gallup wrote, “is a shorthand way of saying the Supreme Court could decide abortion is not a constitutional right after all, thus giving control of abortion laws back to the states. This does not sit well with a majority of Americans or even a large subset of Republicans. Not only do Americans oppose overturning Roe in principle, but they oppose laws limiting abortion in early stages of pregnancy that would have the same practical effect.”
While it is hard to remember today, the modern-day opposition to abortion had its roots not in a moral defense of life but rather in the need for President Richard Nixon to win votes before the 1972 election. Pushing the idea that abortion was a central issue of American life was about rejecting the equal protection of the laws embraced by the Democrats far more than it was ever about using the government to protect fetuses.
Abortion had been a part of American life since its inception, but states began to criminalize abortion in the 1870s. By 1960, an observer estimated that there were between 200,000 and 1.2 million illegal U.S. abortions a year, endangering women, primarily poor ones who could not afford a workaround.
To stem this public health crisis, doctors wanted to decriminalize abortion and keep it between a woman and her doctor. In the 1960s, states began to decriminalize abortion on this medical model, and support for abortion rights grew.
The rising women's movement wanted women to have control over their lives. Its leaders were latecomers to the reproductive rights movement, but they came to see reproductive rights as key to self-determination. In 1969, activist Betty Friedan told a medical abortion meeting: “[M]y only claim to be here, is our belated recognition, if you will, that there is no freedom, no equality, no full human dignity and personhood possible for women until we assert and demand the control over our own bodies, over our own reproductive process….”
In 1971, even the evangelical Southern Baptist Convention agreed that abortion should be legal in some cases, and vowed to work for modernization. Their convention that year reiterated its “belief that society has a responsibility to affirm through the laws of the state a high view of the sanctity of human life, including fetal life, in order to protect those who cannot protect themselves” but also called on “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”
By 1972, Gallup pollsters reported that 64% of Americans agreed that abortion was between a woman and her doctor. Sixty-eight percent of Republicans, who had always liked family planning, agreed, as did 59% of Democrats.
In keeping with that sentiment, in 1973, the Supreme Court, under Republican Chief Justice Warren Burger, in a decision written by Republican Harry Blackmun, decided Roe v. Wade, legalizing first-trimester abortion.
The common story is that Roe sparked a backlash. But legal scholars Linda Greenhouse and Reva Siegel found something interesting. In a 2011 article in the Yale Law Journal, they showed that opposition to the eventual Roe v. Wade decision began in 1972—the year before the decision—and that it was a deliberate attempt to polarize American politics.
In 1972, Nixon was up for reelection, and he and his people were paranoid that he would lose. His adviser Pat Buchanan was a Goldwater man who wanted to destroy the popular New Deal state that regulated the economy and protected social welfare and civil rights. To that end, he believed Democrats and traditional Republicans must be kept from power and Nixon must win reelection.
Catholics, who opposed abortion and believed that "the right of innocent human beings to life is sacred," tended to vote for Democratic candidates. Buchanan, who was a Catholic himself, urged Nixon to woo Catholic Democrats before the 1972 election over the issue of abortion. In 1970, Nixon had directed U.S. military hospitals to perform abortions regardless of state law; in 1971, using Catholic language, he reversed course to split the Democrats, citing his personal belief "in the sanctity of human life—including the life of the yet unborn.”
Although Nixon and Democratic nominee George McGovern had similar stances on abortion, Nixon and Buchanan defined McGovern as the candidate of "Acid, Amnesty, and Abortion," a radical framing designed to alienate traditionalists.
As Nixon split the U.S. in two to rally voters, his supporters used abortion to stand in for women's rights in general. Railing against the Equal Rights Amendment, in her first statement on abortion in 1972, activist Phyllis Schlafly did not talk about fetuses; she said: “Women’s lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women’s libbers are trying to make wives and mothers unhappy with their career, make them feel that they are ‘second-class citizens’ and ‘abject slaves.’ Women’s libbers are promoting free sex instead of the ‘slavery’ of marriage. They are promoting Federal ‘day-care centers’ for babies instead of homes. They are promoting abortions instead of families.”
Traditional Republicans supported an activist government that regulated business and promoted social welfare, but radical right Movement Conservatives wanted to kill the active government. They attacked anyone who supported such a government as immoral. Abortion turned women's rights into murder.
Movement Conservatives preached traditional roles, and in 1974, the TV show Little House on the Prairie started its 9-year run, contributing, as historian Peggy O’Donnell has explored, to the image of white women as wives and mothers in the West protected by their menfolk. So-called prairie dresses became the rage in the 1970s.
This image was the female side of the cowboy individualism personified by Ronald Reagan. A man should control his own destiny and take care of his family unencumbered by government. Women should be wives and mothers in a nuclear family. In 1984, sociologist Kristin Luker discovered that "pro-life" activists believed that selfish "pro-choice" women were denigrating the roles of wife and mother. They wanted an active government to give them rights they didn't need or deserve.
By 1988, Rush Limbaugh, the voice of Movement Conservatism, who was virulently opposed to taxation and active government, demonized women's rights advocates as "Femi-nazis" for whom "the most important thing in life is ensuring that as many abortions as possible occur." The complicated issue of abortion had become a proxy for a way to denigrate the political opponents of the radicalizing Republican Party.
Such threats turned out Republican voters, especially the evangelical base. But support for safe and legal abortion has always been strong, as it remains today. Until yesterday, Republican politicians could pay lip service to opposing the Roe v. Wade decision to get anti-abortion voters to show up at the polls, without facing the political fallout of actually getting rid of the decision.
Now, though, Texas has effectively destroyed the right to legal abortion.
The fact that the Fox News Channel is not mentioning what should have been a landmark triumph of its viewers’ ideology suggests Republicans know that ending safe and legal abortion is deeply unpopular. Their base finally, after all these years, got what it wanted. But now the rest of the nation, which had been assured as recently as the confirmation hearings for Supreme Court Justice Brett Kavanaugh that Roe v. Wade was settled law that would not be overturned, gets a chance to weigh in.
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Notes:
The new anti-abortion law in Texas is not just about abortion; it is about undermining civil rights decisions made by the Supreme Court during the 1950s, 1960s, and 1970s. The Supreme Court declined to stop a state law that violates a constitutional right. Since World War II, the Supreme Court has defended civil rights from state laws that threaten them. During the Great Depression, Democrats under President Franklin Delano Roosevelt began to use the government to regulate business, provide a basic social safety net—this is when we got Social Security—and promote infrastructure. But racist Democrats from the South balked at racial equality under this new government. After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion. They based their decisions on the due process and the equal protection clauses of the Fourteenth Amendment, passed by Congress in 1866 and ratified in 1868 in the wake of the Civil War. Congress developed this amendment after legislatures in former Confederate states passed “Black Codes” that severely limited the rights and protections for formerly enslaved people. Congress intended for the powers in the Fourteenth to enable the federal government to guarantee that African Americans had the same rights as white Americans, even in states whose legislatures intended to keep them in a form of quasi-slavery. Justices in the Warren and Burger courts argued that the Fourteenth Amendment required that the Bill of Rights apply to state governments as well as to the federal government. This is known as the “incorporation doctrine,” but the name matters less than the concept: states cannot abridge an individual’s rights, any more than the federal government can. This doctrine dramatically expanded civil rights. From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system. But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document. This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. It cannot protect the rights of minorities or women. Their doctrine would send authority for civil rights back to the states to wither or thrive as different legislatures see fit. But it has, in the past, run into the problem that Supreme Court precedent has led the court to overturn unconstitutional state laws that deprive people of their rights (although the recent conservative courts have chipped away at those precedents). The new Texas law gets around this problem with a trick. It does not put state officers in charge of enforcing it. Instead, it turns enforcement over to individual citizens. So, when opponents sued to stop the measure from going into effect, state officials argued that they could not be stopped from enforcing the law because they don’t enforce it in the first place. With this workaround, Texas lawmakers have, as Justice Stephen Breyer noted in his dissent, “delegate[d] to private individuals the power to prevent a woman from…[exercising]...a federal constitutional right.” Justice Sonia Sotomayor was more forceful, calling the measure “a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.” And yet, the Supreme Court permitted that state law to stand simply by refusing to do anything to stop it. As Sotomayor wrote in her dissent: “Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.” A state has undermined the power of the federal government to protect civil rights. It has given individuals who disagree with one particular right the power to take it away from their neighbors. But make no mistake: there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years. On September 4, 1957, three years after the Brown v. Board of Education decision, a crowd of angry white people barred nine Black students from entering Central High School in Little Rock, Arkansas. The white protesters chanted: “Two, four, six, eight, we ain’t gonna integrate.” In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes. —- Notes: https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf |
