Editor’s Note: This story has been updated following the Supreme Court’s ruling on December 10. It originally published on September 4, 2021.
The anti-abortion movement has won its biggest returns yet on its decades-long investment on reshaping the courts, with a Supreme Court order that allowed the country’s second most populous state to cut off almost all access to the procedure.
For a generation, abortion foes have employed a multi-pronged strategy of electing state and national anti-abortion rights politicians who would pass restrictive bills while unifying the Republican Party around their cause. But creating a regime that severely limits or outright outlaws the procedure depended on one goal over all: getting justices on the bench who would be willing to reverse the approach high court had taken to abortion rights.
“The most likely way that you can affect the court and how they decide cases is by who’s on the court,” Jim Bopp, who has served as the National Right to Life Committee’s chief lawyer since 1978, told CNN.
The pivotal moment came in the 2016 election, when social conservatives who were otherwise skeptical of Donald Trump pulled the lever for him largely because to the vows he made to them on the Supreme Court. During the campaign, Trump broke political norms by promising justices who would “automatically” overturn Supreme Court abortion precedent, with explicit commitments that were a far cry from the coyness and subtle hints that past Republican candidates would invoke to describe their approach to judicial nominations.
At the time, one seat on the Supreme Court was already up for grabs. But ultimately President Trump was able to confirm three justices, while remaking the lower courts as well. Trump’s justices made up the bulk of conservative five-vote majority that allowed Texas this year to implement a six-week ban on abortion, the strictest abortion law that’s been allowed to go into effect since Roe v. Wade and one that blatantly violates the precedent that 1973 decision set.
“What we’re seeing unfold now is the end result of decades’ worth of strategy by a bunch of brilliant people who’ve been broadly underestimated by the media in much of the beltway,” said Mary Zigler, a professor at Florida State University College of Law and the author of Abortion and the Law in America.
Making promises on the Supreme Court a movement was desperate to hear
When anti-abortion activists were hashing out their approach in the late 1970s and early 1980s, they probably did not think that the president who would ultimately deliver for them would be a twice divorced New York real estate mogul who once described himself as “very pro-choice.”
Even during the 2016 campaign, Trump managed to trample over the anti-abortion movement’s carefully planned messaging strategy. But in one regard, he told the activists exactly what they wanted – and, after years of disappointments from past GOP-appointed justices such as David Souter and Anthony Kennedy, needed – to hear: that his choices would be cut from an originalist cloth. And he was willing to name names to make that clear.
At a February 2016 primary debate – which fell on the same day that news of Justice Antonin Scalia’s death broke and made the Supreme Court a front-burner campaign issue – several Republican candidates made promises to fill Scalia’s seat with a justice that would fit his mold. But only Trump offered the names of specific living jurists – arch-conservative US District Judges Diane Sykes and William Pryor – who would be of the kind he would appoint.
The remark “caught people’s attention,” said Carrie Severino, the president of the conservative Judicial Crisis Network.
“Look, he didn’t know Bill Pryor and Diane Sykes but he had a legal team around him that knew how to identify people would be good candidates,” Severino said. “He had named names before someone like [Texas Senator and 2016 presidential candidate] Ted Cruz, who I’m sure personally knows both those people and could have named off them off the top of his head.”
Trump doubled down on the approach with two lists he released during the campaign of other potential nominees that would guide his approach to the Supreme Court. The May 2016 list of 11 names described them as “representative of the kind of constitutional principles I value,” while the second, expanded list – released that September – made concrete a promise that he would pick for Scalia’s vacancy one of those 21 individuals.
That second list and its firmer commitment was what won over Cruz, the slowest among the 2016 GOP field to drop out, and likely secured up the support of many other Trump skeptics.
The tactic resonated with both the anti-abortion community and the conservative legal movement writ large because for years they had felt betrayed by previous GOP appointees to the court, who joined liberals on abortion cases and other decisions of immense importance to the right. It also stood out to them that within the Trump campaign’s inner circle was Don McGahn, a well-known conservative lawyer who went on to be White House counsel, and Mike Pence, Trump’s vice president with well established anti-abortion bona fides.
The lengths that Trump went to earn conservatives’ trust on the courts – coupled with then-Senate Majority Leader Mitch McConnell’s legacy-making decision to block consideration of the nominee President Barack Obama had put forward for Scalia’s seat – likely delivered Trump the White House.
One fifth of 2020 presidential voters deemed the Supreme Court their top priority at the ballot box, according CNN exit polling, and those voters broke decisively for Trump.
How the anti-abortion community animated a large conservative legal movement
The mindset among GOP rank-and-file of elevating the courts over all else wasn’t born overnight with Scalia’s death, but the product of a multi-decade campaign to push back on Supreme Court doctrine that conservatives believed overreached beyond the justices’ mandate.
The anti-abortion community was easily at home in this movement toward a judicial philosophy known as originalism, which espouses that the constitution should be interpreted by the meaning of the words from when they were written. There, they were joined by other constituencies on the right, like gun rights advocates and economic conservatives who see a judiciary that embraces originalism as key to their policy agendas. But in some ways, Roe was chief of among several Supreme Court decisions that this movement despised. Though there are several policy areas and court precedents that originalism implicates, abortion jurisprudence has stood out in how it has animated the push.
“Since 1973, It’s been our opponents who have had the court locked down,” said Mallory Quigley, a vice president of communications for the Susan B. Anthony List, which supports anti-abortion candidates and has mobilized aggressively around Supreme Court confirmation battles. “They have had everything to lose, we’ve had everything to gain.”
Originalist thought permeated from academia into the Reagan administration, with Attorney General Ed Meese delivering several milestone speeches on the subject. The movement also had a champion in Scalia, perhaps the most prominent advocate of the approach. But their path to having now four justices who explicitly embrace the approach was not without setbacks.
There was the defeat of the Reagan Supreme Court nominee Robert Bork, a prominent originalist, in the Senate in 1987. Democrats explicitly connected Bork’s originalist views with the threat that Roe would be overturned.
“There you have, for the first time, this combination of the originalism movement and the anti-abortion movement in a single political event,” Adam White, a legal scholar at the conservative think tank the American Enterprise Institute, told CNN.
Still, a 1992 Supreme Court abortion case from Pennsylvania made it only clearer to anti-abortion activists that blind trust in whomever a Republican nominated would not be enough. In that case, the majority reaffirmed Roe while striking down the state’s spousal notification requirement.
“Conservatives thought they really were on the verge of overturning Roe v. Wade, and suddenly find themselves losing the case in a decision where the key justices are all Republican appointees,” White said.
By the George W. Bush administration, anti-abortion activists had honed enough focus on the courts to sink the Supreme Court nomination of Harriet Miers, the White House counsel whom Bush nominated to fill Justice Sandra Day O’Connor’s seat, because she lacked a track record they could trust. After her withdrawal, Bush instead nominated Justice Samuel Alito, who was among the five who voted not to block Texas’ abortion ban this week.
It’s an irony of fate that the death of Scalia, originalism’s most famous practitioner, set the stage for the movement to have its biggest imprint on the court yet. Abortion is just one area of law where the 6-3 majority could take the court in a drastically new direction.
Anti-abortion activists played a significant role in making that happen. They lobbied Senate Republicans not to move forward with the nomination of Merrick Garland, Obama’s choice to replace Scalia. They then spent big – $18 million was what SBA List put forward – to get Trump elected and keep the Senate under Republican control.
The circumstances of the confirmation fights that each Trump nominee faced presented additional obstacles where the unwavering support of the anti-abortion community helped get the nominees over the finish line.
Justice Neil Gorsuch – whose confirmation required the end of the Senate filibuster for Supreme Court nominees – benefited from a digital ad campaign and advocacy effort from SBA List. Anti-abortion activists hosted rallies across the country in support of Judge Brett Kavanaugh, including after his confirmation was nearly derailed following allegations of sexual assault from when he was in high school (Kavanaugh has always denied the allegations). While some Republicans expressed discomfort with confirming Justice Amy Coney Barrett so close to the 2020 election, SBA List also put up a six-figure ad buy to urge them to move forward.
During each of these confirmation fights, progressives were mocked for warning Roe was on the chopping block. Their warnings are looking prescient now, in light of the Texas action and with an opinion next spring in the Mississippi case which will allow the court to formally over return Roe, if it so chooses.
Doubters could have also looked to how South Carolina Sen. Lindsey Graham, while hosting a confirmation hearing for Barrett as Senate Judiciary chairman last fall, borrowed from Trump’s playbook and described in explicit terms what she was being sent to the court to do.
He praised her as “unabashedly pro-life,” and told her, “a seat at the table is waiting for you.”
This story has been updated with additional developments.