Reviews | Roe’s death will change American democracy


The overthrow of Roe required the overhaul of a growing conservative legal movement, which had grown considerably since the founding of the Federalist Society in 1982. From the perspective of the anti-abortion movement, the conservative legal movement had been an unreliable ally in the 1980s and early 1990s. Many members of the Federalist Society had been uncomfortable with the anti-abortion movement, disagreeing about the value of a right to choose or fearing that Abortion opponents only tarnish the image of an emerging conservative legal elite.

Robert Bork, whose Supreme Court confirmation in 1987 went down in flames, helped change that. Bork had been a prominent critic of Roe, and after the Senate rejected his nomination, the conservative legal movement became more comfortable defining Roe as the ultimate symbol of judicial activism. As the conservative legal movement grew stronger, the country moved closer to eliminating the right to abortion.

But in 1992, Planned Parenthood v. Casey reinforced a growing awareness among anti-abortion groups that it would not be enough to build influence in the conservative legal movement. Even with six Republican-appointed justices, the court declined the invitation to overthrow Roe, explaining that doing so would irrevocably damage his legitimacy. Anti-abortion groups therefore set out to ensure that different types of judges sat on the court – judges who would be ideologically consistent and indifferent to popular opinion.

Clarence Thomas, who joined the court the year before the Casey ruling, has established himself as a model for this new kind of justice. George HW Bush, the president who appointed Judge Thomas, was hardly a hero to opponents of abortion; early in his career he was a strong proponent of family planning, and even as president he was never entirely comfortable with nationwide criminalization. Judge Thomas was a different story: Anti-abortion leaders were impressed with his response to the sexual harassment accusations raised by Anita Hill. He seemed like the kind of judge who would stick to his principles no matter what the American people thought of him, and who even reveled in the hatred of his opponents on the bench and in Congress. It was the kind of justice that would end Roe.

After Casey, some anti-abortion groups expanded their reach: To gain even more control over Supreme Court appointments, they sought to overhaul the Republican Party and campaign spending rules. Anti-abortion lawyers have waged war on campaign finance limits, which they say cripple social conservatives, cripple small donors and violate the First Amendment. They joined other groups working to unleash a torrent of spending from nonpartisan outside groups, fought for donor anonymity, and were instrumental in the Supreme Court’s decision in Citizens. United v. Federal Election Commission, which rolled back certain limits on corporate election spending.

With fresh money and influence within the GOP, anti-abortion groups were able to do something new: weaken the traditional leadership of the Republican Party, which had not made the fight against Roe as much of a priority than pro-business attacks on regulations and taxes. .

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