Don’t Forget Parties and Policy Legacies

By Drew Halfmann

Many of the essays in this Mobilizing Ideas dialogue examine the successes and failures of the abortion movements—arguing for example that the anti-abortion movement succeeded by co-opting discourses of “choice” and “women’s health,” organizing through churches, and pursuing incremental change, but was hurt by its violence, extremist rhetoric and attacks on contraception; while the abortion rights movement failed by focusing on “abortion rights” rather than “reproductive justice” and on defensive litigation.

Here, I’d like to highlight a few additional factors that helped determine the successes, failures, and strategic options of the abortion movements: the policy legacies of the Roe v. Wade and Planned Parenthood vs. Casey decisions, the relationship of the movements to political parties, and the electoral fortunes of those parties.  I focus on changes in policy rather than public opinion or public discourse, each of which would require its own essay (but see the excellent contributions by Joffe, Dillon and Munson).

To begin, the fact that the national decriminalization of abortion occurred through a Supreme Court decision has strongly shaped the strategic options for both movements.  Anti-abortion activists were left with the unpalatable and arduous options of pursuing a constitutional amendment (a miserable failure), persuading presidents to appoint sympathetic justices who might overturn Roe (close, but no final prize), and enacting restrictive legislation that tested the limits of the law.  Abortion rights activists were also constrained by Roe.  They had difficulty pursuing an expansionary agenda because the American abortion policy was already the most liberal of the rich democracies.  They had to develop litigation strategies in order to defend Roe against the attacks of their opponents.  And efforts to gain or preserve abortion insurance coverage were constrained by the American welfare state’s exceptional stinginess and hostility towards the poor.

During most of the 1970s, state and federal restrictions on abortion were typically enacted by bipartisan groups of legislators acting without the support of party leaders.  But beginning in the late 1970s, the two parties began to polarize on abortion.  In comparison with other countries, American political parties are unusually susceptible to social movement influence because of their open and democratic systems of selecting candidates, party leaders and policy goals, and because resource-intensive, candidate-centered campaigns make movement resources appealing to candidates. Evangelicals and feminists seized these opportunities to make inroads within the two parties.  And once the parties polarized on abortion, abortion restrictions were typically enacted by Republican-controlled legislatures (with support from individual Democrats).

But legislative restrictions were only a means to an end—they were meant to provide test cases that might allow the Supreme Court to overturn Roe.  At the very moment that abortion became a partisan issue for the first time, the Republican Party won three consecutive presidential elections and made five consecutive Supreme Court appointments.  When the Court considered Casey in 1992, only Justices Blackmun and Stevens could be considered reliable defenders of Roe.  And yet, in a clear exception to my partisan arguments, three Reagan-Bush appointees (O’Connor, Kennedy and Souter) formed a plurality that not only reaffirmed Roe but did so in such resounding language that some legal scholars now deem Roe a “super-precedent.”  The decision dashed the hopes of the anti-abortion movement, but also upset the abortion rights movement by lowering the standard of review for abortion restrictions from “strict scrutiny” to “undue burden”.  Both sides claimed that they had lost, and both had, but the anti-abortion movement’s loss was crushing.

Why did the anti-abortion movement’s court packing strategy fail?  For starters, it is difficult to choose ideologically-correct Justices, especially as nominees tend be evasive about their views.  In addition, the defeat of the 1987 Robert Bork nomination by civil rights and feminist activists made the Reagan and Bush administrations reluctant to nominate other ideologically-extreme Justices, and thus led to the selection of moderates Kennedy and Souter.  Finally, beginning in 1989, NOW and NARAL organized enormous Washington demonstrations and gained hundreds of thousands of new members.  As the public focused on the imminent threat to Roe, many Democratic candidates ran and won on the abortion issue.  The Casey plurality argued that it was acting to preserve the Court’s institutional legitimacy by demonstrating that the Court does not merely “follow the election returns.”  The pro-choice demonstrations and the Democratic electoral victories helped to show such claims would carry great force if the Court overruled Roe.  There may also have been more partisan considerations: the journalistic consensus at the time was that the overturn of Roe would grievously harm the Republicans’ chances in that year’s presidential election.

Since Casey, mainstream anti-abortion activists have pursued a wide variety of state restrictions on abortion—and these often succeed when Republicans hold the legislature and governor’s mansion.  These restrictions have reduced the availability, safety, timeliness, comfort, and dignity of abortion care for hundreds of thousands of women.  As Caitlin Borgmann points out, these activists believe that the restrictions keep the abortion issue alive and will gradually change public opinion. But it has remained stable, and many states have now enacted all of the Casey-approved restrictions that the public will accept.  More importantly, these restrictions fall far short of the aspirations of the anti-abortion movement—the abolition of abortion.  Radicals within the anti-abortion movement have begun to chafe under this incrementalist strategy.  They argue that regulating “murder” is hypocritical and only increases public support for a “split-the-difference” approach in which abortion is legal but regulated.  As a result, radicals have increasingly proposed legislation that directly challenges Roe.

The patterns of the last forty years have implications for the future.  The political parties are more polarized than ever on abortion.  Democrats are eager to exploit their advantage with women voters and the Christian Right and the Tea Party (which is quite opposed to abortion) remain influential within the Republican Party.  As a result, abortion policies will continue to be determined mainly by the electoral fortunes of the two parties at both the state and federal levels, but within constraints set by the Roe/Casey (super?)-precedent and the Court’s interpretation of undue burdens.  The incrementalist anti-abortion strategy can only go so far, but a more liberal court may constrain the strategy further. President Obama’s election has helped the abortion rights cause.  He has already appointed two Justices and will almost certainly appoint at least one more (four Justices are over the age of 74).

The 2010 health care reform also bodes well for the abortion rights movement.  The reform will reduce abortion coverage in some states (those that ban it in their exchanges) while expanding it in others (those that fund Medicaid abortions with their own funds).  More importantly, the reform’s major expansion of contraceptive coverage and benefits will significantly reduce unintended pregnancies and abortions.  And the existence of (near) universal health insurance coverage may aid claims that health care is a right, and that abortion is a part of that right.

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Filed under Essay Dialogues, Roe at 40

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