Will we learn the lessons from the defeat of Roe?

When Sydney Harper, producer of the New York Times’ podcast the Daily, went to the Supreme Court of the United States in the wake of the overturning of Roe vs. Wade, she talked to a bystander who was “shocked” to see a large celebration of anti-abortion activists outside the courthouse.

She shouldn’t have been. The conservative right’s crusade against abortion rights has long been characterised by its self-confidence. The overturning of Roe is yet another confirmation that the conservatives’ strategy of aggressive, uncompromising belligerence is far more effective than the progressives’ and liberals’ feeble and timid approach to defending the right to abortion

The leaking of a draft court ruling overturning Roe at the beginning of May emboldened the anti-abortion forces. On the other hand, Democratic politicians, liberal commentators and NGO bureaucrats reacted to the leaked draft with passivity, despairingly accepting the inevitable winding back of women’s rights.

The seeds of this defeat go back to the original Roe vs. Wade decision, which provided a pretty flimsy basis for the right to an abortion. Rather than affirming a woman’s right to abortion, the decision declared that the Fourteenth Amendment to the US Constitution provides a “right to privacy” that protects a pregnant woman’s right to an abortion.

Even among pro-choice advocates, the “right to privacy” basis for Roe has been ridiculed. “As a constitutional argument, Roe is barely coherent”, Kermit Roosevelt wrote in a 2003 piece for the Washington Post. “The court pulled its fundamental right to choose more or less from the constitutional ether.”

More importantly, by limiting the right to abortion to a decision by an elite group of judges empowered by an undemocratic institution, liberals ensured that the right to abortion was always precarious, inadequate and almost inevitably doomed to be overturned once the political climate shifted and conservatives regained a majority on the Supreme Court.

As conservative columnist Ross Douthat put it in an opinion piece for the New York Times: “It makes sense that a decision that did so much to divide our parties and delegitimize our institutions would ultimately be undone by the very forces it unleashed: In its beginning was its end”.

Rather than building a mass grassroots movement to win the right to abortion as a part of a democratic struggle, liberals hedged their bets on the idea that there was enough support for women’s rights within the corridors of power to ensure the right to abortion would be respected.

As it became increasingly clear that this wasn’t the case, the response from pro-choice advocates was to retreat in the face of attacks from the conservative right and hope that, by compromising on aspects of the right to abortion, they would save the core of the Roe decision.

In reality, this played directly into the hands of the conservative right. James Bopp, a founding member of the group of conservative lawyers that began campaigning against Roe from day one, explained the strategy on a recent episode of Daily. The first thing that Bopp and the group of right-wing lawyers around him did was study the successful legal challenges of the National Association for the Advancement of Colored People during the 1950s and 1960s, such as the Brown vs. Board of Education ruling that racial segregation in state public schools was unconstitutional.

The lesson they drew was that the civil rights movement was successful because it chipped away at segregation, winning a series of minor legal challenges at first, which nevertheless undermined segregation’s legal basis, ultimately draining it of content and creating the precedents for its overturning.

So even when the conservative right focused on winning immediate demands, such as forcing under-aged women to notify their parents that they were going to have an abortion, this was carried out in a forceful way and always tied to the ultimate goal of ending abortion rights. They never rested on their laurels after a victory; they used every advance as a new launching pad for more and more assaults.

As the protest movements of the 1960s and 1970s exhausted themselves, the political climate shifted in the right’s favour, opening the space for more substantial victories. The anti-abortion campaigners emerged out of a broader right-wing movement that mobilised against the gains of the civil rights movement. Anne Rumberger explained in the June 2022 issue of Salvage: “The activating issue for many conservative evangelicals was not abortion, as religious leaders like to claim in most revisionist histories, but white southerners’ reaction to desegregation”.

Prominent anti-abortion crusaders, such as evangelists Jerry Falwell and Tim Lahaye, first intervened politically as a part of the movement to establish private all-white Christian schools in response to the desegregation of state schools in the south. By 1979 there were reportedly more than 1,000 such schools, with more than 1 million students.

Yet the fight over segregation, while important for mobilising conservative activists, was a losing battle. The clearer this became, the more important opposition to abortion and gun control became for conservative strategists wanting to create a full-blown right-wing offensive against the progressive gains of the 1960s and 1970s. In the process, they transformed the religious right into a significant faction of the Republican Party and polarised the abortion issue on partisan lines.

An early expression of this was the political development of Ronald Reagan. Reagan was a divorcee and former Hollywood actor who, while conservative, was not religious and had relatively liberal views on some social questions. But during his 1980 presidential campaign he formed a powerful alliance with anti-abortion crusaders and was transformed overnight into an advocate for “Christian values”.

The first major victory of the anti-abortion campaigners was in the same year, when the Hyde Amendment came into effect, barring the use of federal funds to pay for abortion except to save the life of the woman.

The response of both the courts and the Democrats to the emboldened attacks was telling. While the 1992 Planned Parenthood vs. Casey Supreme Court decision upheld the central thesis of Roe, it allowed states to implement abortion restrictions during the first trimester of pregnancy. The following year, Democratic President Bill Clinton signed a new version of the Hyde Amendment, keeping the ban on the use of federal funds to pay for abortion but expanding some of the categories in which it could be used to save the life of a woman.

Little by little, the conservative right was chipping away at the right to abortion.

The importance of issues such as gun control and abortion rights for the conservative right also grew throughout this period as the economic programs of the Republicans and Democrats became ever more indistinguishable. Republicans could offer voters little in the way of economic benefits, but they could tap into the right-wing paranoia of a well-organised section of religious voters, some of whom had traditionally backed the Democrats.

In the absence of powerful social movements and genuine left-wing forces that could act independently of the Democrats and feminist NGOs, the right to abortion was locked into an increasingly doomed strategy, in which a woman’s right to choose became a political football between liberals and conservatives.

This should be a stark lesson for the left everywhere. It takes a dedicated and uncompromising struggle to change society. The conservative right are helped by the fact that their ideas, even in their more extreme iterations, can be implemented through the anti-democratic structures of capitalist society.

That is even more reason why we have to challenge the legitimacy and power of the institutions that uphold capitalism, rather than tying our rights to their decisions.