By Robert Fleegler / Special To The Washington Post
The Supreme Court’s decision not to block Texas’s new abortion ban for procedural reasons, along with its willingness to hear arguments about the constitutionality of an extremely restrictive Mississippi law during the upcoming term, have raised the specter that the right to an abortion may soon be overturned. And while antiabortion activists would cheer such a decision, history suggests that the victory might prove short-lived.
Since the Supreme Court legalized abortion with Roe v. Wade in 1973, the antiabortion movement has generally been more energized than its abortion rights counterpart. Feeling disenfranchised because the court removed the issue from the political process, religious conservatives have routinely, and increasingly with time, mobilized their voters to back antiabortion Republican candidates. By contrast, abortion rights advocates have often been more relaxed, trusting the court to safeguard the right, which allowed them to base their votes on other issues.
Yet, in 1989, in Webster v. Reproductive Health Services, the court dealt a blow to the right to abortion, leaving many wondering whether its changing composition meant the justices were poised to overturn Roe. The reaction from the electorate to Webster suggests that the mere hint of a court decision to do away with the right to an abortion might wake up a sleeping giant of voters who are in favor of abortion rights, potentially transforming American politics.
Abortion was virtually illegal throughout the country until grass-roots activism pushed states to begin liberalizing their abortion laws in the late 1960s. Between 1967 and the Roe decision in 1973, 19 states made abortion legal under certain circumstances. Roe immediately provided a national right to an abortion, ending the emerging political debate over the issue in the states. As a result, abortion opponents and even some abortion rights advocates, including future-Justice Ruth Bader Ginsburg, later accused the court of short-circuiting the discussion before a national consensus could be reached.
Without legislative recourse, an alliance of conservative Catholics and evangelical Protestants coalesced to help roll back the decision, forming the base of the modern Christian right.
Abortion became one of the major dividing lines in American politics, and by 1976, the Republican Party adopted an antiabortion platform. Four years later, many credited the coalescence of religious conservatives within the Republican coalition for Ronald Reagan’s landslide defeat of incumbent Jimmy Carter.
Social conservatives had only two avenues for overturning Roe: a constitutional amendment or a change in the composition of the Supreme Court. Though Reagan supported such an amendment, it was a political nonstarter. He did place three new justices on the Court: Sandra Day O’Connor, the first female justice, as well as Antonin Scalia and Anthony M. Kennedy. In the late 1980s, however, it was not yet clear how far these new justices were willing to go to restrict abortion rights.
In July 1989, however, hope arrived for the antiabortion forces when the court handed down the Webster decision upholding a 1986 Missouri law restricting the procedure. The 5-to-4 majority included the three Reagan appointees as well as Chief Justice William Rehnquist and Justice Byron White, the two dissenters in Roe. Among other things, the court allowed Missouri to bar the use of public buildings for performing abortions as well as mandating viability tests at 20 weeks of pregnancy. In his dissent, Justice Harry Blackmun — who had written the original Roe opinion — warned that while the court hadn’t overturned Roe, the “signs are evident and very ominous, and a chill wind blows.” Indeed, Scalia, in his first abortion case, criticized his fellow justices for their unwillingness to overturn Roe.
Seizing the opportunity, antiabortion politicians swung into action at the state level, proposing restrictions that they hoped could pass constitutional muster. Florida Gov. Bob Martinez, a Republican, called for a special legislative session to enact new abortion laws, including measures to change the state’s viability standard from 24 to 20 weeks and to bar state employees and hospitals from performing abortions unless a mother’s life was in danger. Even the Democrats controlling the state legislature believed some limits would pass.
Though 1989 was not a federal election year, there were key gubernatorial races in Virginia and New Jersey. Webster reshaped those contests, bringing abortion to center stage.
In Virginia, Democrat L. Douglas Wilder was running to become the first African American governor elected in the United States. While downplaying race in his campaign, he highlighted abortion, attacking GOP opponent J. Marshall Coleman for his antiabortion views. One television spot dramatically featured Thomas Jefferson’s statue with the narrator intoning, “In Virginia we have a strong tradition of freedom and individual liberty; rights that are now in danger in the race for governor.” The message was especially aimed at suburban moderates in then-Republican-leaning Northern Virginia.
In New Jersey, abortion became a major issue in the battle between Democratic Rep. James J. Florio and Republican Rep. James C. Courter. Florio, who supported abortion rights, quickly attacked the Webster decision. And Courter, despite compiling an antiabortion voting record in Congress, tried to hedge, saying he wouldn’t back restrictions unless there was broad support in the state. His attempt to straddle the issue hurt his credibility with both sides.
As the fall races pressed on, Florida’s special legislative session got underway, but the politics of the issue were rapidly changing. A swell of pro-abortion rights sentiment had emerged in the Sunshine State, with legislators reporting a 50 percent increase in constituent communications backing abortion rights. In a complete reversal of expectations, none of Martinez’s proposals even got out of committee. “This is clearly the will of the people. If there is a message to the political leaders in this country on abortion,” declared Senate President Bob Crawford, a Democrat, “it’s that it’s probably best to leave well enough alone.”
That message was reinforced on Election Day as Wilder and Florio won, primarily thanks to the politics of abortion. In Virginia, the electorate rated abortion the most important issue, with Wilder winning two-thirds support from the 50 percent of the electorate that wanted to keep abortion legal. Similarly, voters in New Jersey ranked abortion as one of the two most important issues, with Florio winning those who prioritized the issue by 2 to 1.
Post-election analysis focused on how Webster had mobilized the abortion rights forces and turned the issue into a positive for Democrats. “Voters in Tuesday’s elections confirmed a new and startling political truth about abortion,” the New York Times editorialized. “The issue, once seemingly a winner for right-to-life candidates, can now punish these candidates at the polls.” Sen. Bob Packwood, R-Ore., one of the dwindling band of abortion rights moderates in the Republican Party, warned that the GOP would lose if it ran on the same abortion position in the 1990 midterm elections.
Three years later, in 1992, in a 5-to-4 ruling, the Supreme Court reaffirmed the basic right to an abortion in Planned Parenthood v. Casey, with O’Connor, Kennedy and George H.W. Bush appointee David Souter in the majority. The decision limited states from placing an “undue burden” on this right.
In the years since Casey, the religious right has continued to mobilize its supporters to back candidates who would nominate judges who wished to overturn Roe and Casey. It solidified its hold over the GOP, and as a result, every Republican presidential nominee in the last 40 years has pledged themselves to the antiabortion cause. Though Donald Trump had previously declared himself a supporter of abortion rights, he suggested he would appoint justices who would overturn Roe. And he may have lived up to this pledge; the three justices he placed on the bench joined with Justices Clarence Thomas and Samuel Alito to refrain from blocking the Texas law before it went into effect.
Yet, a victory in the Supreme Court may backfire on abortion opponents. As the 1989 case revealed, when abortion rights have been most threatened, it spurred activism and action from supporters of keeping abortion legal. They voted on the issue and fought against restrictive laws. It’s possible that antiabortion activists could get what they want from the court, only to find their victory snatched away by voters in blue and purple states. And the balance between the Republican and Democratic parties could change thanks to renewed energy in the abortion rights camp.
Robert Fleegler is an associate professor of history at the University of Mississippi.