To anyone with a normal, passing familiarity with the Supreme Court, the news that a majority of justices are poised to overturn Roe v. Wade, the 1973 case that held that a woman’s right to get an abortion was protected by the constitution, probably came as a shock. How the fuck could this happen? How did we get to the point, in 2022, where the government control women’s bodies and force women to give birth?
Notably, those of us with an unhealthy obsession with the Court — I’ve covered it for ten years – were not surprised at all. We’ve seen it coming for a long, long time. So, in brief, here’s how we got here.
Let’s start at the beginning. Abortion is as old as sex — especially non-consensual sex. But it was not usually something governments cared about. In the United States, early-term abortion was legal and unregulated until the 1870s. And it was banned, in some places, because of Victorian-era concerns about hygiene and safety (and sexist biases against midwives) from the emerging medical establishment.
After nearly a century of horrifying back-alley abortions (yes, with coat hangers, but also knitting needles, amateur surgery, poisonous chemicals, and worse), abortion began to be legalized in some states in the 1960s, under pressure from the nascent women’s rights movement and by liberal Christian and Jewish denominations who understood that protecting vulnerable women was a profound moral issue. Gradually, abortion came to be seen as part of every woman’s right to her own bodily autonomy, and in 1973, Roe v. Wade was decided.
Now, as Justice Alito complained ad nauseam in his draft opinion, the word “abortion” is not mentioned in the constitution. But for most of the twentieth century, such literalism was less important than understanding the modern-day implications of broad terms like “liberty,” and rights “reserved by the people.” The writers of the constitution chose not to use specific examples of the rights they protected — that task fell to judges, who, over the decades, developed the idea that there was a fundamental right to personal privacy, especially in the core human activities of marriage and family, that the government could not abridge without a compelling state interest. Abortion was included in that.
At first, Roe v. Wade was not nearly as important as it would later become. Many Catholics opposed it, but at the time it was decided, most Protestants said that abortions should be legal and evangelical preachers taught that life began at birth. The Southern Baptist Convention — now a pillar of the conservative “Christian right” — specifically endorsed that view.
What happened? Evangelicals began to get into politics … because of desegregation. When public schools were desegregated in the 1950s, white Evangelicals and even some Catholics left in droves, the Evangelicals especially sending their kids to so-called “segregation academies,” religious schools that only admitted white people. (Jerry Falwell ran one.) At the same time as Roe was being argued, those academies were found to be illegal, even though white Christians protested that their religious beliefs compelled them to keep the races separated.
Conservative Evangelicals and Catholics had tended to avoid the mess of politics, and rarely agreed with one another. But with courts forcing white Christians to go to school with Black kids, that changed, and in the late 1970s, the Christian right was born. Yet there was a problem: preserving segregation was no longer an effective unifying issue. And so, Paul Weyrich, Falwell, and other founders of the Christian right — in a history meticulously documented by Randall Balmer — seized on abortion instead.
Abortion was perfect. Support for abortion overlapped with support for desegregation, women’s rights, gay rights, and the sexual revolution. If you fought one, you could fight the others too. Plus abortion was an emotional issue that was easily used to whip up anger and indignation, as well as to drive people to the polls (and to donate money).
The gambit worked. The Christian right got Ronald Reagan elected in 1980, and since then, opposition to abortion has been a defining issue of the Republican Party. And for the last 45 years, the Christian right has been methodically, meticulously planning for this very moment. Christian fundamentalists only supported politicians who were “Pro-Life,” driving moderate Republicans out of the party. They made being “Pro-Life” central to their religious identity. Despite the obvious history, and the total lack of Biblical support, they made “life begins at conception” into dogma.
And they worked to transform the judiciary. Judges and justices began to be vetted for their stances on abortion rights, usually in code. With a newly minted philosophy called “originalism,” legal scholars and judges said that only rights that were part of “our Nation’s history and tradition” were covered by the constitution’s guarantees. No one believed this preposterous idea fifty years ago, but now five Supreme Court justices do.
After a setback in 1992, when conservative justices were expected to overturn Roe but surprisingly didn’t, these efforts gained new steam. After 1992, the goalposts were moved: Republicans would henceforth only appoint confirmed Christian fundamentalists or “originalists” to the Supreme Court. A whole network of dark-money-funded organizations began training, vetting, and promoting arch-conservative judicial nominees. (Check out Senator Sheldon Whitehouse’s conspiracy-nutty-but-actually-totally-accurate dissection of that network, complete with charts, from Justice Amy Coney Barrett’s confirmation hearing.)
The fruits of that process are Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. (Chief Justice Roberts has been a bitter disappointment to the Christian right as he has not towed the line as they expected.) Every one of them was promoted by the same right-wing network — which Justice Thomas’s wife, Ginny, is part of herself. They were all put into place for one purpose: to overturn Roe v. Wade.
And now they seem ready to do so.
Now, you might ask, what about precedent? Doesn’t the Court have to respect Roe, which has been on the books for fifty years?
Well, over the last decade, there’s been a steady drip-drip-drip of opinions from the Court’s right wing, hedging on just how much respect they have to show. Three years ago, Justice Thomas wrote that a precedent can be overturned based on “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” Thomas just made that up; that’s not how the Court normally evaluates precedents. But his views are now in Justice Alito’s draft opinion.
Mostly, though, we’ve gotten to this point because the right has played the game a lot smarter, and more intensely, than the Left. Senate Republicans broke with a century of tradition to deny even a hearing to Justice Obama’s nominee, Judge Merrick Garland. They broke all the rules, and then broke them again when they nominated Justice Barrett after the 2020 election had already begun. Republicans played dirty and won; Democrats played clean and lost.
Worst of all, Democratic voters just didn’t seem to get it. In 2016, the Supreme Court wasn’t even in the top ten list of issues Democratic voters said they cared about. It was in the top five for Republicans. And that was reflected in how they voted. In 2016, supposedly righteous Evangelicals who cared about character and values voted for a vulgar, bullying serial adulterer (and accused sexual predator) who didn’t know the Bible from Fifty Shades of Gray. Meanwhile, many Democrats were too pure to hold their noses and vote for Hillary Clinton because she supported the TPP (anyone remember what that even is?), many others simply didn’t vote at all, and many were blocked by Republicans’ use of Jim Crow style voter suppression.
Evangelicals voted tactically, with the Supreme Court in mind, while Democrats voted as if the election was a test of one’s personal virtue. So Trump won.
Numerically, Trump wouldn’t have even come close without the Christian right’s support, and so he delivered on his promises to them, nominating two religious conservatives (Gorsuch and Barrett) and one hardcore political conservative (Kavanaugh) to the Supreme Court. Meanwhile, reading the tea leaves, Republicans in states like Texas and Mississippi started passing plainly unconstitutional abortion bans, eager to get a test case before the new Court. The opinion Alito wrote was for one of those cases, Dobbs v. Jackson Women’s Health.
That’s how we got here: a campaign born in white supremacy, cemented by the wedding of the Christian right and the Republican Party, and doggedly pursued for nearly half a century. Now embryos are pre-born babies. Now “originalism” is dogma. Now women’s bodies are property of the state.
And make no mistake, the reasoning Justice Alito uses in his Dobbs opinion applies equally to the constitutional right to same-sex marriage, to ‘sodomy’, to contraception, and, yes, to interracial marriage. The constitution doesn’t say those words either, and all of those rights rest on substantive due process: the idea that there is no process that would be “due process” for taking away certain fundamental rights. They are all on the chopping block.
I personally believe that by 2024, my marriage to my husband will be illegal in every red state in the union. Don’t ask me what will happen to my daughter. I really don’t know.
Angry? You should be. So go vote for the lesser of two evils, if that’s how you see the Democrats, while pushing for deeper institutional changes as well (term limits for Supreme Court justices, for example). In places where Republicans are making it harder for people — especially Black and brown people — to vote, help them to vote. Fight the Republicans’ voter suppression machine, and their lies about voter fraud and a stolen election, with old-fashioned, grassroots, boots-on-the-ground activism.
In short, take the Supreme Court as seriously as the Christian right does. Because otherwise, the story of how we got here will end in a place we can’t recognize.