I am pleased to welcome Mary Ziegler to the ELB Book Corner, author of the new book, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment (Yale, 2022). Here is the first of three posts:
Since the decision of Dobbs v. Jackson Women’s Health Organization, commentators have tried to explain how the conservative legal movement and antiabortion movement achieved such a tremendous victory—and in the face of consistent public support for abortion rights. In recent months, progressives have spotlighted the incremental litigation campaign developed by the antiabortion movement.
For the past fifty years, the antiabortion movement’s underlying goal remained sweeping: not just the reversal of Roe but the recognition of fetal personhood and the creation of a national ban on abortion. But the campaign to reverse Roe proceeded more gradually, centering on comparably modest restrictions and defending them as consistent with Roe. In this way, the movement sought to hollow Roe out and make it easier to overrule.
There is already parallel campaign to reverse Dobbs. Reproductive rights litigators are seeking limited victories in state court, focusing on state constitutional rights to avert death, for example, or access the procedure in cases of rape or incest. This campaign has already created an important platform for the stories of women and other pregnant people living in states where abortion is a crime. State supreme courts, even in conservative states, have recognized limited rights. Incrementalism, it seems, may be working.
As the current fight against Dobbs suggests, the history of the quest to reverse Roe has ongoing importance, and focusing on the antiabortion movement’s litigation strategy tells less than half the story. Abortion opponents developed this litigation strategy in the 1970s, and aligned with the Republican Party in the early 1980s, but neither strategy yielded much in the way of results until decades later. In truth, the reversal of Roe had as much to do with changes to the way Americans vote and spend in elections, as I argue in Dollars for Life, a book recently published by Yale University Press.
The book draws on extensive archival research, including exclusive access to the archive of James Bopp Jr., a prominent figure in struggles over campaign finance and abortion. The book began when I was working on a previous project and kept encountering material on campaign finance in the archives of antiabortion organizations. These finds did not at first make much sense: antiabortion groups had comparably fewer resources and did not stand to benefit more than most interest groups if more money was funneled into federal elections (if anything, groups supportive of abortion rights, like Planned Parenthood, have customarily outraised and spent their opponents on the right). There were obvious antiabortion figures in the history of campaign finance litigation: Senator James Buckley, the brother of the conservative commentator William F. Buckley, was not just a part of Buckley v. Valeo but also the champion of an antiabortion constitutional amendment. One of the Supreme Court’s early decisions on campaign finance and ideological nonprofits, Massachusetts Citizens for Life v. Federal Election Commission, involved part of the movement. But there seemed to be no reason that the antiabortion movement would take a deeper interest in money in politics.
The more deeply I researched, though, the clearer it became that many within the movement had come to realize that an incremental litigation campaign was not enough. Immediately after Roe, antiabortion lawyers had prioritized a constitutional amendment, and when that failed, even with a Republican in the White House and the GOP controlling both house of Congress, the movement developed a new focus: the reversal of Roe. Antiabortion lawyers worked to get Republicans elected, and to lobby the GOP to confirm judges who would reverse Roe. But in 1992, three Republican-nominated justices voted to save Roe in Planned Parenthood v. Casey. As the movement considered what had gone wrong, its leaders suggested that abortion opponents did not have enough influence in either the federal judiciary or the Republican Party. Whatever the solution was, movement leaders argued, would have to do with campaign finance.