Judging by a draft decision published Monday in Politico, the Supreme Court is ready to overturn Roe v. Wade, the 1973 case that enshrined abortion rights. Half the states have laws in place and ready to go that would ban most or all abortions. But the court’s official decision won’t be the last word on the matter.
“A lot of these socially conservative legislators want to be seen as the first one, or one of the first, doing something definitive or proactive on this issue,” says Tim Head, executive director of the conservative Faith and Freedom Coalition. “You’ll see special sessions in July or August for more states to take action on that.”
It was widely anticipated that the court would gut if not overturn Roe. Now, it’s not a question of if, but when, that precedent will be history. Sensing the direction of the court, red-state legislatures have pushed through large numbers of abortion restrictions this year, including creating criminal penalties or civil liability for providers.
“Part of it is a feeling that after the three Trump Supreme Court appointments, particularly on the life issues, the window’s a little bigger on what states might be able to do,” says Gary Bauer, president of American Values, another socially conservative group. (Like Head, Bauer spoke before the Supreme Court decision was leaked.)
Polls consistently indicate that a majority of Americans are opposed to overturning Roe. Conservatives overreached on the issue in ways that could work against them this fall, suggests Lara Brown, a political scientist at George Washington University. Republicans could lose support among suburban voters who sympathize with the GOP on economic issues but were put off by former President Donald Trump as a culture warrior, she says. “Republicans are more extreme than where most of the country is, and that could draw turnout, particularly among young people, who are the Democrats’ biggest problem,” Brown says.
Abortion will clearly move to the center of political discussion for the rest of this year, but it won’t be the only front in the culture wars. The leaked decision may well be amended, but its logic of questioning rights not explicitly guaranteed by the Constitution puts other precedents at risk, including cases that set the bar for gay rights, same-sex marriage and contraceptives.
“The marriage equality so many of us fought for with every ounce of our being? On the rocks,” Jim Obergefell, after whom the 2015 Supreme Court decision enshrining same-sex marriage rights was named, said in a statement.
Cultural conservatives have been successful pushing a range of bills at the state level this year dealing with gay, transgender and racial issues. As happened with abortion, the prospect of favorable rulings from the Supreme Court and other federal judges is likely to stoke their ambitions.
“The Republicans' cultural conservatives who are most devoted to Trump are individuals who are displeased by every aspect of cultural change,” Brown says. “It’s not just women, it is gays and it is trans and it is racial progress. All of those things matter.”
A Long Road to Get Here
Roe has been a divisive decision throughout its half-century history. In 1980, Ronald Reagan added support for a constitutional abortion ban to the Republican Party platform, helping cement his alliance with religious conservatives.
The need for a constitutional amendment stemmed from the fact that even many religious conservatives didn’t believe Roe could be overturned. At least, not in the short run. Religious conservatives focused on aspects of abortion that much of the public found troubling, successfully introducing secondary restrictions such as bans on taxpayer funding for most abortions or requirements for parental notification or consent.
Even in the past decade, many abortion opponents believed it was better to chip away at abortion access, through bills that made it practically — though not legally — more difficult to undergo the procedure. Some states required physicians to have admitting privileges at hospitals that they were never going to get, for instance. Numerous clinics shut down under such weight in states such as Ohio and Texas. "Abortion is legal, so you must have incremental legislation to save as many babies as we can," Mike Gonidakis, president of Ohio Right to Life, said in 2014.
But activists became increasingly convinced they could be successful pushing outright bans. By 2019, Ohio had become the sixth state to pass a “heartbeat” ban on abortions at six weeks following conception. Numerous red states in recent years have passed bans at anywhere from six to 20 weeks. The Mississippi law that is at the heart of the current Supreme Court case is a 15-week ban.
Conservatives have long worked to achieve a more conservative court, and now they’ve got it. At this point, activists and the courts have become self-reinforcing mechanisms, with the activist base that helped create the conditions for judicial appointments realizing they can achieve major objectives they were once told would be impossible.
“For almost all evangelicals, the Scalia vacancy on the court was the No. 1 reason most people cited for voting for President Trump,” says Head, of the Faith and Freedom Coalition. “They had a great deal of confidence he was going to deliver in some form or fashion in what they wanted to see happen.”
Culture-War Politics
The prospect of favorable court action offered “renewed vigor” to abortion opponents, Head says. Liberals are suddenly concerned that the same might soon prove true on other issues. One analyst tweeted that the leaked ruling represents “a stage 5 cancer diagnosis for LGBT rights.”
Brown, the George Washington University political scientist, says that the more the GOP focused on culture-war issues, the less it will help them in the suburbs. But Republicans have already placed their bets on that score.
GOP state lawmakers have pressed for book bans and restrictions on the ways in which racial history, gender and sexuality are discussed in public school classrooms. Proponents of private school choice have scored record numbers of victories in legislatures over the past couple of years.
Although Democrats are hopeful that the Supreme Court’s now-expected action on abortion will energize voters, it could also be the case conservatives will be excited and ready to reward Republicans for achieving a long-held dream.
Bauer, the American Values president, argues that the public favors the positions Republicans have been taking on issues such as transgender sports participation and classroom instruction. He suggests that the drop in support for Democrats among Hispanic voters may be largely attributable to the “cultural radicalism" of the left.
“There’s always been resistance among parents to sex education that is too explicit in early grades,” he says. “Now there are classes where really complicated issues are being introduced into the minds of children who are not psychologically equipped to deal with these questions.”
An Organizing Principle
It used to be conventional wisdom, at least in some corners of the liberal commentariat, that religious conservatives were being played for suckers — that Republicans talked about fighting abortion but never delivered, instead pursuing economic policies that hurt many of these same voters.
But cultural conservatives kept their eyes on the prize.
“For a long time, religious conservatives felt that they were taken for granted, but their intensity mattered,” says Mark Rozell, a George Mason University political scientist who has written or edited several books about religion and politics. “They didn’t get discouraged and step away from politics, as some suggested they might do if the Republican Party didn’t move aggressively on the social-issues agenda.”
Not only did they keep at it, but they understood that state politics are key. They are well-organized at that level, with groups such as Project Blitz and Alliance Defending Freedom producing model bills on a variety of issues. (Alliance Defending Freedom wrote draft legislation that shaped the Mississippi law before the Supreme Court.)
“It’s clear that this is not a spontaneous thing happening because they wouldn’t replicate the same or almost the exact same language,” says Nik Nartowicz, state policy counsel for the Americans United for Separation of Church and State, an advocacy group that battles encroachment of religion into the public sphere.
Such groups promote model bills and talking points in as many states as possible, he says, if only to stretch their opponents thin. “One of the people said their goal is to make the other side play whack-a-mole,” Nartowicz says. “Other groups find themselves fighting in a lot of places on a lot of fronts and that makes it difficult for them to coordinate.”
Conservatives have long been better organized at the state level. Groups such as the American Legislative Exchange Council and the State Policy Network have generated and promoted ideas in a way that progressives have not been consistently able to match. Social conservatives have often been able to form alliances with groups pushing other agendas.
“Movement activists and leaders joined ranks with secular conservatives, gun rights activists and economic conservatives within the Republican Party to form electoral coalitions,” says George Mason’s Rozell. “They kept working within the GOP to get candidates nominated who they knew would be reliable on the social issues.”
