The Dark Truth Behind the SCOTUS Ruling

Jerry Falwell and Reagan
Photo: Getty Images
Peter Hamby
May 9, 2022

After Politico broke the news last week that the Supreme Court is preparing to annihilate Roe v. Wade, I jumped on YouTube and pulled up old clips of Samuel Alito’s Supreme Court confirmation hearings back in 2006, a seemingly distant time in our culture, when abortion rights felt more settled and inalienable than they do today. Over the years, watchers of the federal judicial process have grown accustomed to Republican judicial appointees slithering around questions about Roe with practiced and non-committal legalese. Alito was no different. And he had something big to answer for. 

In his Judiciary Committee hearing, Alito was pressed by the chairman, the late Pennsylvania Senator Arlen Specter—a pro-choice Republican!—about a killer piece of opposition research. In 1985, while applying for a job in the Reagan administration, Alito wrote in a letter that he was “particularly proud” of his work in cases arguing that “the Constitution does not protect a right to an abortion.”

With his wife Martha barely concealing a grin behind him, Alito said that was all in the past. “Today, if the issue were to come before me, if I were fortunate enough to be confirmed and the issue were to come before me, I would approach the question with an open mind,” Alito said. “That was a statement I made at a period of time when I was performing a different role.”

What’s clear today about those answers is precisely what many pro-choice activists have been screaming for years: Alito was lying. They were all lying. Maybe no one believed them at the time, but the conservative justices successfully played the game. I’m talking about Clarence Thomas, who stated in his confirmation that he had “no agenda” on Roe; Neil Gorsuch, who said “it’s the law of the land” that a fetus is not a person; and Brett Kavanagugh, who called Roe “settled” as precedent of the Supreme Court, if not the law. At least Amy Coney Barrett had the self-respect to show her cards. “I can’t pre-commit,” she told the committee. 

All five of these judges, three of them appointed by Donald Trump, make up the majority that’s apparently primed to overturn Roe in June, when the court formally announces its rulings. And of course that’s what they’re planning to do, because they are the embodiment of a brilliant, ruthless and decades-long political campaign to overturn the 1973 ruling that enshrined a woman’s right to an abortion in this country. 

The foot soldiers in the anti-abortion movement—the well-organized pastors, the evangelical zealots, the Baptist long-skirts, the Knights of Columbus Catholics, the wild-eyed abortion clinic protesters—they had faith this was coming, too. Because while the Democratic party grew complacent over the decades—assuming that federal abortion rights were mostly safe, lumping the issue of women’s health into just one of many talking points every campaign season—the anti-abortion movement never wavered, even as the press dismissed them and the culture ignored them. These were the single issue voters who showed up every January, by the bus and planeload, for the March for Life, juicing their attendance numbers with kids from Catholic schools and youth groups, their fervor nourished by Republican politicians everywhere. 

Women like Helen Sandor, a retired elementary school teacher from Pittsburgh, who went to the March for Life rally in January 2006, on the heels of Alito’s nomination by George W. Bush. Sandor told a reporter from The New York Times that the Alito news was one more glorious step in the right direction on the road to what she believed was the inevitable demise of Roe. “We’ve made so many strides, waiting to get to the end of Roe v. Wade,” she said. “Now, it’s like there’s a light through the darkness. We feel stronger now.” 

It would take 15 more years for Alito to finally type out the world-shaking opinion that would answer Sandor’s prayers. But for the American right, it was always going to take a long time, and it was always going to be worth the wait. Democrats are now left empty-handed and heartbroken. California Governor Gavin Newsom summoned the rage on Wednesday at an event in Los Angeles. “Where the hell is my party?” Newsom said. “This is a concerted, coordinated effort and yes, they’re winning. They are. They have been. Let’s acknowledge that. Where’s the counter-offensive?” 

The answer, governor, is that there is none. The pro-choice left now has to brace for a long chapter in the darkness, and I’m not sure the Democrats who became politically sentient in the Trump era can fully grasp how arduous it will be. Pundits immediately leapt to the question of what the ruling might mean for November’s midterms, whether it might animate suburban women or core Democratic voters. Who knows? But deflated Democrats are probably asking themselves something else right now: What the hell does my vote for Adam Schiff or Maggie Hassan or Raphael Warnock this November have to do with saving Roe? Chipping in $15 bucks to the D.N.C., or posting a stylized explainer graphic about reproductive rights on Instagram—that’s not going to do the trick. 

In cities across the country this week, pink-hued protests erupted immediately. Democratic fundraising appeals went out. Reporters traveled to Texas and Mississippi and other red states for a glimpse of what the coming years will look like for women who want or need abortions but can’t get them in their home states. But there’s no single bad guy to vote against—and no singular channel for the anger and fear among Democrats—that can fix what the Supreme Court appears ready to do. Trump’s election in 2016 alarmed the left and compelled their voters to take action, but as traumatizing as The Orange Man was, getting rid of him required only an election cycle, not decades of methodical, single-minded grassroots political action at the state and local level—the kind of long-sighted organizing that Republicans have been doing since Jimmy Carter was president. By the time the Supreme Court once again has enough liberal justices to re-establish the sort of federal protections that Roe guaranteed, if ever, many of the Democrats sounding the alarm about women’s rights this week—Joe Biden, Nancy Pelosi, Chuck Schumer, Hillary Clinton, even Barack Obama—will be long dead and buried.

The grim truth for Democrats is that it took the American right more than four decades to accumulate the power finally wielded by Alito this year. His opinion—in the case Dobbs v. Jackson Women’s Health Organization—was a response to a 2018 Mississippi law that bans abortion after 15 weeks, a restriction passed by a Republican legislature and signed by a Republican governor with full knowledge that it would be challenged by abortion rights lawyers, and ultimately climb its way up the judicial ladder until it landed in the laps of five conservative Supreme Court justices who were warriors in the long right-wing vendetta against Roe

It took a very, very long time for the American right to build that architecture. They created policy groups to deliver white papers to state legislators. They formed judicial societies to cultivate legal minds, from which friendly Republican politicians could pluck nominees. They were shameless about gerrymandering state legislative districts in their favor. They incubated a conservative media ecosystem that long predated Facebook and Fox News. And now, Republicans have a chokehold on the federal judiciary, 28 Republican governors, and full G.O.P. control of 30 of the country’s state legislatures. 

Donald Trump and Mitch McConnell might have stocked the court with conservative justices—today, more than a quarter of active federal judges are Trump appointees—but none of those efforts would have been possible without the groundwork laid by a small group of conservative political operatives back in the 1970s. Democrats often mistake abortion opponents as Bible-banging mouth-breathers exploited by false prophet politicians like Mike Pence, a longtime advocate of defunding Planned Parenthood. The truth is that the anti-abortion movement began as a long-tail political campaign. The theology conveniently and cynically mutated around it when it had to. 

When the Roe ruling came down, the evangelical movement wasn’t much concerned with abortion. Neither was the Republican Party. Barry Goldwater supported abortion rights, and so did Ronald Reagan, in cases of rape and incest. In the years just before and after Roe, abortion was percolating as a concern among evangelicals, but the movement’s theologians tiptoed around it. Some even sought to accommodate it. Throughout the 1970s, the Southern Baptist Convention consistently affimed a resolution stating that abortion was permissible in cases of rape, incest, or if the mother’s life was in danger. As late as 1978, Pat Robertson said abortion was a “purely theological issue”—not a political one. Abortion was a preoccupation of conservative Catholics, and the Robertsons and Jerry Falwells of the world had little interest in teaming up with those dreaded papists. Indeed, Falwell was more interested in using his emergent power in the late 70s as a crusader against gay rights, pornography and the Equal Rights Amendment. Abortion wasn’t on the political menu, even five years after Roe.

The evangelicals and the Catholics had not found much success in national politics, until a group of young right-wing political operatives came on the scene and deployed a strategy to unite the clans in opposition to the moral and cultural rot of liberalism: Seize on abortion as a wedge issue for political gain. Richard Viguerie, Paul Weyrich, Howard Phillips, Morton Blackwell. They were both moral crusaders and political hatchet men. In The Evangelicals, Frances Fitzgerald’s essential book about the movement, she describes them as “a cadre of young Washington-based political activists who were in the process of creating a conservative movement outside the Republican Party through a network of think tanks, political action committees and training institutes.” That line doubles as an answer to Gavin Newsom’s lament. Democrats have nothing of the sort—not then, not now.

These men lined up behind Falwell, organizing the Moral Majority, which became a force in the Carter years and helped usher Reagan into the White House. Weyrich saw abortion as a high-wattage moral issue that could unite evangelicals, old line Christians, and Catholics who would eventually march hand-in-hand every year in Washington. He also understood that while a majority of Americans supported Roe at a high level, plenty of swing voters and conservative Democrats had muddier opinions about abortion. The Moral Majority roared to life around the issue. They had a lobbying wing, an education project, youth activists, training programs, direct mail operations, media buyers, a direct line to Republican members of the House and Senate, TV and radio ads, voter registration efforts, and, of course, an organized network of pastors who could spread the word to their flocks that abortion—now the top issue for Christian believers—was evil. The only way to stop it? Vote Republican.

In the abortion wars, the closest corrollaries on the left are Emily’s List, NARAL Pro-Choice America, and the Planned Parenthood Action Fund. The pro-choice groups are campaign powerhouses, raising and spending millions to elect Democrats up and down the ballot, every two to four years. But while they can count on favorable media coverage and impressive fundraising machinery, abortion rights groups have never really burrowed deep into the political and cultural firmament in the way the Christian right has. Sure, plenty of brave and captivating women—remember Wendy Davis?—have gone viral on social media by speaking fiercely in defense of their right to choose when red states sought to limit abortion access, inspiring Democrats to click, share and donate. But those moments never felt like part of a national emergency, nor did Democratic leaders treat them that way, because Roe was always there to protect most abortion rights at the federal level. Most Democrats couldn’t remember a time when abortion wasn’t safe and legal. Republicans never forgot.

In victory and in loss, the anti-abortion movement has been defined by a state of permanent activism, in which politics is symbiotic with religious, cultural, and yes, racial identity. They’ve outlasted the viral moments. Indeed, Republicans made fighting abortion part of their story and essential character. Even when the Moral Majority withered, other groups sprang up in its place: Focus on the Family, The Christian Coalition, The Family Research Council. They ran conferences, hired communications directors, organized state chapters, and spent millions on direct mail and brochures for churchgoing voters—all of it far outside the view of journalists who couldn’t recite Psalm 23:4 even with a gun pointed at their head. 

These groups had well-dressed frontmen with nice haircuts who cosplayed as preachers but played political hardball. They weren’t afraid to pick sides in Republican primaries, or attack G.O.P. politicians who didn’t seem to share their goals. In turn, Republican politicians genuflected to their power, promising Christian voters that they would defend “family values,” save traditional marriage, and appoint conservative judges. “The life issue,” though, was always issue number one, so powerful that even an amoral deviant like Trump could win over Christians in 2016 by promising to appoint judges who would overturn Roe

Getting behind Trump was a devil’s bargain for the Christian right, but it was a logical choice, too, not just because they were habituated to vote Republican, but also because the final stage of a hard-won, 40-year political project to undermine Roe was now finally at hand. Republicans, famously, fell in line. Can Democrats find a way, for the next 40 years, to do the same? Because that’s the horizon line that Democrats need to be watching—not the elections this November—if they want to one day reverse this decision at the federal level.

Assuming Alito’s majority opinion holds true and the Court kills Roe in June, the battle to protect abortion rights now moves to the states. Democrats in Washington can’t do much. President Biden is an institutionalist governing in revolutionary times. When the Roe news broke, his first instinct was to remind people that he fought Robert Bork’s nomination to the Court way back in 1987, a moment few voters remember or care about. Later in the week, White House Press Secretary Jen Psaki pissed off liberals by chiding the abortion rights protesters gathering outside the homes of Brett Kavanaugh and Chief Justice John Roberts, saying their privacy should be respected. Real talk: Biden will not pack the courts. The filibuster isn’t going anywhere. Roe will not be codified into law by a divided Senate ruled by Joe Manchin. There’s almost no lane to fight back against McConnell on abortion right now in Washington, which is why more than a few Democrats were peeved that national campaigns and organizations were trying to raise money off the Roe catasrophe this week. A sample text: “Joe Biden here. The SCOTUS draft opinion calls into question the fundamental right to privacy. Chip in $15 to the DNC.” 

The Democratic National Committee is doing what it’s conditioned to do in moments like these—vacuum up cash—but the organizations that urgently need money now aren’t in Washington. “Do we need to win the House, the Senate and White House? Yes,” said Alyssa Mastromonaco, the former Barack Obama adviser and Crooked Media host. “But right now, this week, let’s focus our help on the millions of panicked women who need support. My money right now is going to grassroots pro-choice orgs that are actually figuring out how to get women access to the care they deserve in real time.” She pointed to NARAL and the Yellowhammer Fund, which helps women in the Deep South seeking abortions. 

The Democratic Legislative Campaign Committee, which works to elect Democrats to state legislatures, saw a surge in fundraising after the Politico news, a worthy boost, according to the group’s president, Jessica Post. “Folks are now understanding that the path back to power is through winning in the states, where they can hold and rebuild power,” Post told me. “The federal government is not coming to save us. We can’t be distracted by shiny objects or long-shot campaigns against Mitch McConnell,” she said, a dig at faddish Democratic candidates like Amy McGrath in Kentucky, a sureshot #Resistance loser who nevertheless siphoned small donor money away from winnable races thanks to her flashy ads and social media presence. 

Post recalled how Republicans strategically shifted their focus following their drubbing in the 2008 election, after which Democrats took full control over the federal government. Republicans looked to the states, methodically investing $32 million in local legislative races, with the goal of taking over state-level policymaking and seizing control over the redistricting process to protect Republican seats for the next decade. It worked. On election night in 2010, Republicans flipped 22 state legislatures. By the time Obama left office, his party had infamously lost over 1,000 seats at the state legislative level. Meanwhile, Republicans in state capitals were busy incubating right-wing policies, developing a young roster of political talent, and, of course, developing a new generation of conservative judges. “It’s been a really lasting and durable investment for Republicans,” Post said. “We have been fighting from behind since 2010.” It doesn’t help that the vast majority of Democratic voters have no idea what the D.L.C.C. even is. 

If Roe is overturned this summer, more than half of the country—28 states—would move to limit or outright ban abortions. Thirteen Republican-led states, many of them in the South, have “trigger laws” in place that would outlaw abortions if the Supreme Court allowed it. Five states have pre-Roe abortion bans that would suddenly be enforced again. And 14 states are considering banning abortion before a fetus is viable. With governors, attorneys general and state legislators suddenly in charge of abortion policy, Republicans will universally face pressure from their base to move as quickly as possible, perhaps crafting even more restrictive policies in an endless game of right-wing one-upmanship. Any Republicans who balk will almost certainly face primary challenges.

Democrats are already facing disastrous headwinds this fall. Republicans have the edge in polls, core Democratic voting constituencies like Hispanics and young people are souring on Biden, and the electorate as a whole has happily tuned out political news ever since the anxiety-inducing Trump years came to an end. Even the historic Roe news, when it broke last Monday night, didn’t immediately swallow the information universe. A Google trends comparison on that evening showed that far more Americans were searching for updates on the Met Gala in New York City than they were about the Supreme Court.

If there is something Democrats can do this November as they grapple with the end of Roe, it’s to throw money and muscle at gubernatorial and state house races in crucial swing states like Michigan, Pennsylvania, and Wisconsin, where Republicans could take full control of state government and implement draconian abortion policies that could force women in Detroit, Milwaukee, and Philadelphia to seek abortions in other states, just like women in Texas and Mississippi. Statehouse chambers in Colorado, New Mexico, Maine, Minnesota, Arizona, North Carolina, Georgia, and Nevada are also up for grabs. 

Put another way: If Roe dies, the entire country becomes a battlefield for abortion rights. Indeed, as Post said, the federal government isn’t coming to save the left. Unless Democrats suddenly devise a cohesive, bottom-up, always-on strategy to fight back against the ascendant right in a post-Roe universe for decades to come, supporters of abortion rights will have to find a way save themselves and protect a generation of women now at risk—and perhaps a generation after that, too.