ELB Book Corner: Mary Zielger: “Abortion and Overcoming Popular Will”

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 final of three posts:

The antiabortion movement long made the argument echoed in Dobbs: that Roe had short-circuited a process of public deliberation, and that American democracy would be stronger if elected representatives, rather than judges, made decisions about abortion. The Dobbs Court itself stressed this argument in explaining the decision to dismantle the right to choose abortion. For years, some within the movement had suggested that returning the issue to voters would benefit the movement—and not just because federal constitutional challenges would be off the table. From the 1970s onward, some within the movement believed that most Americans would seek to criminalize abortion if they truly understood what it was.

But from the 1960s onward, the antiabortion movement saw the protection of the fetal person as far more important than popular politics. That made campaign finance rules more important: if the abortion fight was about who exercised power, rather than about what voters wanted, then campaign spending could give a movement with an unpopular position a much-needed edge.

By the 2010s, antiabortion groups had tied their campaign finance work to efforts to what they framed as ballot integrity work. Bopp, the general counsel of the National Right to Life Committee, worked with Judicial Watch and attorneys like Cleta Mitchell to devise strategies to make it harder to vote; antiabortion attorneys drafted and defended voter ID laws. Bopp became general counsel for True the Vote, defending the group in court and challenging early and mail-in-balloting schemes in the lead-up to the 2020 election.

After the January 6th attack, movement leaders only redoubled this work. The Susan B. Anthony List and Family Research Council launched a project to limit early and mail-in balloting. The Thomas More Society invested in the Amistad Project, which had sought to overturn the 2020 election and more recently championed the independent state legislature theory.

The movement’s involvement with voting and campaign finance in part reflects broader changes to the Republican Party. Deepening political polarization and negative and affective partisanship, along with the rise of conservative media, had fueled the emergence of populist candidates interested in catering to the base, while using tools like gerrymandering to make it harder for others to vote.

But antiabortion leaders had their own reason for devising strategies to make it harder for voters to register their views on reproductive rights. Polls after Citizens United and Dobbs showed that voters were still against sweeping bans—if anything, in states where criminal laws were in force, opposition only hardened. The result of ballot initiatives confirmed that voters might not be friendly to the movement’s strategies (the abortion-rights side prevailed in six of six initiatives in 2022).

The story in Dollars for Life is about a movement seeking to change the law and broader society without changing hearts and minds. That process is ongoing: in Ohio, lawmakers are experimenting with a strategy to make it harder for voters to approve ballot initiatives; Republicans in other states have also considered steps to make it harder for voters to put abortion on the ballot.

That story also has important lessons for those seeking to reverse Dobbs. The antiabortion movement had a clever litigation strategy and tremendous patience, but by the 1990s, the movement’s savviest players understood that it might never win unless there were broader changes to the way elections worked and the way the Supreme Court as an institution functioned. Over the past half century, the abortion struggle has become a battle about not just reproductive rights but voting rights and campaign finance. And just as smart lawyering would never have been enough to get rid of Roe, much more will be needed to undo Dobbs.

Share this: