Bit of History Leading up to the SCOTUS-5 Accepting S.B. 8
This is thorough coverage of the background leading up to Roe v. Wade and today’s events with a SCOTUS majority of five shrugging its shoulders ignoring the impact of the Texas law on one state and its meaning to a nation.
September 2, 2021, Letters From An American, History Prof. Heather Cox Richardson examines “the contrast between image and reality in American politics.”
In the light of day today, the political fallout from Texas’s anti-abortion S.B. 8 law and the Supreme Court’s acceptance of that law continues to become clear.
By 1:00 this afternoon, the Fox News Channel had mentioned the decision only in a 20-second news brief in the 5 am hour. In political terms, it seems the dog has caught the car.
As I’ve said repeatedly, most Americans agree on most issues, even the hot button ones like abortion. A Gallup poll from June examining the issue of abortion concluded that only 32% of Americans wanted the U.S. Supreme Court’s 1973 Roe v. Wade decision overturned, while 58% of Americans opposed overturning it.
“’Overturning Roe v. Wade,’” Lydia Saad of Gallup wrote, “is a shorthand way of saying the Supreme Court could decide abortion is not a constitutional right after all, thus giving control of abortion laws back to the states. This does not sit well with a majority of Americans or even a large subset of Republicans. Not only do Americans oppose overturning Roe in principle, but they oppose laws limiting abortion in early stages of pregnancy that would have the same practical effect.”
While it is hard to remember today, the modern-day opposition to abortion had its roots not in a moral defense of life but rather in the need for President Richard Nixon to win votes before the 1972 election. Pushing the idea that abortion was a central issue of American life was about rejecting the equal protection of the laws embraced by the Democrats far more than it was ever about using the government to protect fetuses.
Abortion had been a part of American life since its inception, but states began to criminalize abortion in the 1870s. By 1960, an observer estimated that there were between 200,000 and 1.2 million illegal U.S. abortions a year, endangering women, primarily poor ones who could not afford a workaround.
To stem this public health crisis, doctors wanted to decriminalize abortion and keep it between a woman and her doctor. In the 1960s, states began to decriminalize abortion on this medical model, and support for abortion rights grew.
The rising women’s movement wanted women to have control over their lives. Its leaders were latecomers to the reproductive rights movement, but they came to see reproductive rights as key to self-determination. In 1969, activist Betty Friedan told a medical abortion meeting: “[M]y only claim to be here, is our belated recognition, if you will, that there is no freedom, no equality, no full human dignity and personhood possible for women until we assert and demand the control over our own bodies, over our own reproductive process….”
In 1971, even the evangelical Southern Baptist Convention agreed that abortion should be legal in some cases, and vowed to work for modernization. Their convention that year reiterated its “belief that society has a responsibility to affirm through the laws of the state a high view of the sanctity of human life, including fetal life, in order to protect those who cannot protect themselves” but also called on “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”
By 1972, Gallup pollsters reported that 64% of Americans agreed that abortion was between a woman and her doctor. Sixty-eight percent of Republicans, who had always liked family planning, agreed, as did 59% of Democrats.
In keeping with that sentiment, in 1973, the Supreme Court, under Republican Chief Justice Warren Burger, in a decision written by Republican Harry Blackmun, decided Roe v. Wade, legalizing first-trimester abortion.
The common story is that Roe sparked a backlash. But legal scholars Linda Greenhouse and Reva Siegel found something interesting. In a 2011 article in the Yale Law Journal, they showed that opposition to the eventual Roe v. Wade decision began in 1972—the year before the decision—and that it was a deliberate attempt to polarize American politics.
In 1972, Nixon was up for reelection, and he and his people were paranoid that he would lose. His adviser Pat Buchanan was a Goldwater man who wanted to destroy the popular New Deal state that regulated the economy and protected social welfare and civil rights. To that end, he believed Democrats and traditional Republicans must be kept from power and Nixon must win reelection.
Catholics, who opposed abortion and believed that “the right of innocent human beings to life is sacred,” tended to vote for Democratic candidates. Buchanan, who was a Catholic himself, urged Nixon to woo Catholic Democrats before the 1972 election over the issue of abortion. In 1970, Nixon had directed U.S. military hospitals to perform abortions regardless of state law; in 1971, using Catholic language, he reversed course to split the Democrats, citing his personal belief “in the sanctity of human life—including the life of the yet unborn.”
Although Nixon and Democratic nominee George McGovern had similar stances on abortion, Nixon and Buchanan defined McGovern as the candidate of “Acid, Amnesty, and Abortion,” a radical framing designed to alienate traditionalists.
As Nixon split the U.S. in two to rally voters, his supporters used abortion to stand in for women’s rights in general. Railing against the Equal Rights Amendment, in her first statement on abortion in 1972, activist Phyllis Schlafly did not talk about fetuses; she said: “Women’s lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women’s libbers are trying to make wives and mothers unhappy with their career, make them feel that they are ‘second-class citizens’ and ‘abject slaves.’ Women’s libbers are promoting free sex instead of the ‘slavery’ of marriage. They are promoting Federal ‘day-care centers’ for babies instead of homes. They are promoting abortions instead of families.”
Traditional Republicans supported an activist government that regulated business and promoted social welfare, but radical right Movement Conservatives wanted to kill the active government. They attacked anyone who supported such a government as immoral. Abortion turned women’s rights into murder.
Movement Conservatives preached traditional roles, and in 1974, the TV show Little House on the Prairie started its 9-year run, contributing, as historian Peggy O’Donnell has explored, to the image of white women as wives and mothers in the West protected by their menfolk. So-called prairie dresses became the rage in the 1970s.
This image was the female side of the cowboy individualism personified by Ronald Reagan. A man should control his own destiny and take care of his family unencumbered by government. Women should be wives and mothers in a nuclear family. In 1984, sociologist Kristin Luker discovered that “pro-life” activists believed that selfish “pro-choice” women were denigrating the roles of wife and mother. They wanted an active government to give them rights they didn’t need or deserve.
By 1988, Rush Limbaugh, the voice of Movement Conservatism, who was virulently opposed to taxation and active government, demonized women’s rights advocates as “Femi-nazis” for whom “the most important thing in life is ensuring that as many abortions as possible occur.” The complicated issue of abortion had become a proxy for a way to denigrate the political opponents of the radicalizing Republican Party.
Such threats turned out Republican voters, especially the evangelical base. But support for safe and legal abortion has always been strong, as it remains today. Until yesterday, Republican politicians could pay lip service to opposing the Roe v. Wade decision to get anti-abortion voters to show up at the polls, without facing the political fallout of actually getting rid of the decision.
Now, though, Texas has effectively destroyed the right to legal abortion.
The fact that the Fox News Channel is not mentioning what should have been a landmark triumph of its viewers’ ideology suggests Republicans know that ending safe and legal abortion is deeply unpopular. Their base finally, after all these years, got what it wanted. But now the rest of the nation, which had been assured as recently as the confirmation hearings for Supreme Court Justice Brett Kavanaugh that Roe v. Wade was settled law that would not be overturned, gets a chance to weigh in.
Notes on this post can be found on the Letters from An American site.
well, i don’t see it as a women’s rights issue, though i do think women ought to have the right to murder abusive husbands and boyfriends.
it’s a “keep yuor government hands off my body” issue. a right i think IS explicitly in the Constitution.
of course, if it wa interpreted that way the draft would be unconstitutional. now, that could be a “men’s rights” issue, except that women are now demanding their right to be drafted.
but, alas, the Constitution is whatever the politiclly appointed Court says it is, and any nominee who says otherwise isn’t fit to sit on the Court. used to be the Court was thought to be insulated from politics by lifetime appointment. now we see that only means “once we get our guys in there, we can run the show forever.”
packing the Court might be the only Constitutional answer left…. the press and the country (did it?) freaked out when FDR suggested packing the Court. This time might be different.
I have lost track of whether the people can amend the constitution without getting a majority in Congress to let them….Though the “number of state legislatures” might turn out to be a problem.
one other possibility
all the women who care about this have to get out and vote, i can’t imagine any man voting against abortion rights if his mother or wife or girlfriend tells him not to. so tell them.
then if that fails you need toorganize a women in trouble rescue team..bus fare at least to a state where it’s legal.
i’ll be watching to see what you come up with.
oh, do i need to say vote democrat, no matter what you think of them otherwise, unless they are something likeManchin.
The Supreme Court did not “accept” the Texas law. They recognized that the specific case put before them was enormously flawed. The plaintiffs sued a specific Texas judge who, as an individual Texan, had never attempted to bring any action under the law, nor even had another party’s case before him for judgment. The defendant was plucked out of thin air and it could have easily have been the guy in stall 2 at the Frisco, TX Jiffy Lube, who also had zero activity with this law. There probably will be a real case soon enough, though.
Try not to talk.
Well Eric:
You are going to defend judges of “Jonathan Corwin and John Hathorne” ilk in the modern form of the SCOTUS Five? By ruling (which they did) on the Texas law, they have create a witch-hunt amongst the texas-citizenry. They have created something akin to the Salem Witch Trials where anyone can bring false testimony to infringe upon the individual rights of others. Shall we hang them, burn them, or press them like we did in the 17th century?
They should have stayed the implementation until the Mississippi case was resolved. BS on your excuses.
This is an attack on the individual liberties of others or women in this case and those who may help them. Abortion by an individual harms no one else other than the person who has it.
The decision by the 5 member majority is sound. If this were a real case it would be easy to say ‘this is what that named defendant did to our plaintiff’. Guess what? It is not just uneasy, it is impossible because the defendant has done anything at all here. It is not a real case and the reason I say it was probably a publicity exercise is that getting to a real case is straightforward: perform an abortion in Texas that is post-fetal heartbeat and encourage someone to file a suit against your client. Voila, real case. Further, it is obvious that nothing in the procedural decision discourages real substantive litigation concerning this law…if a real case moves along they could be back at SCOTUS any day now without having to spend a minute addressing any findings by the Court relative to this law. The only real finding in this matter is that bringing a fake case will be noticed. The law is probably unconstitutional. It seems nearly unworkable also. It seems a bad law. The Texas legislature ought to be ashamed of themselves for coming up with the third-party suit stuff. But all that doesn’t make the fake law suit a real law suit.
Every single one of those 5 are totally aware their decision is pure bs. And you repeat their nonsense.
Eric377
it would be no fun if we waited for all the facts to be in, and maybe dangerous to wait. I’ll stand by my suggestions for what to DO if early reports are true, but thank you for reminding me that sometimes things are not what they seem. But long experience watching the SC leaves me expecting the worst.
The comments here don’t give me much hope for any of our daughters futures.
It is a women’s rights issue crafted by anti-suffrage men who have no right/roll speaking to anything related to women’s issues.
Women do get out and vote, most always have after their grandmother’s told them that they fought for that right and that men would soon take it away as soon as they legally could. My grandmother told me the same.
Unfortunately too many americans vote against thier own best interest out of ignorance or fear.
Run
I think you are probably right about the SC, but I am interested to see if Erik’s analysis of the recent decision works out. Meanwhile the question is what do we do about it? Just shout at each other, or plan for eventualities..either to overturn the SC through elections leading to appointment of new “I just interpret the law” Justices, or a Constitutional Convention, or private “charity” to provide women with the means to get around the Texas law…I’d love to see Texans wake up tomorrow and find that all their women have moved to California.
And you need to keep in mind that some pro-lifers are women who think abortion is murder of babies. You may believe they are wrong, but it’s not wise to just dismiss them as fools or women-haters. My best answer so far (best for me, they don’t care) to “christian” pro lifers is that Jesus said “What is that to you? Follow thou me!” and his whole teaching is beware of moral judgement of others (leaven of the Pharisees). If, as some of them are saying about requiring masks in school “God decides who dies..” then I think we can safely leave it to God to protect the souls of aborted babies. Of course they don’t hear that anymore than the people who think it’s “all about women’s Rights” will hear this.
Coberly:
Deciding to do nothing is a decision and 4 other justices in the minority signed the SCOTUS decision opposing the majority decision to do nothing. A Stay to the Texas law would have also been a decision until SCOTUS takes up Mississippi and decides on Roe v. Wade which in either case would have made the Texas law moot.
Our friend is wrong.
Run
Like I said, I think you are probably right. But I am always interested other opinions than my own. Just to see how they work out.
“The cynic in me stands by the claim that they never intended to do in the open what could be done through sloppy subterfuge; that blaming irascible Texas wackiness, throwing up their hands and sighing that a law that was designed to evade judicial scrutiny somehow should evade scrutiny, and then slinking off to bed in the hopes that nobody would care much was always the most appealing strategy. But a careful look at the shoddy, contemptuous jurisdictional reasoning of the five justices in the majority suggests something even darker. It’s not just that the majority of the Supreme Court functionally ended abortion rights for most women in Texas last night merely because they could. And it’s not just that they did so because—as is so often the case with impressionistic, frayed shadow docket reasoning—their personal feelings about the constitutional right to abortion are quite robust. It’s almost impossible to not go one further and declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.”
https://slate.com/news-and-politics/2021/09/conservative-justices-abortion-legal-mansplaining.html
EMichael
the cynic in me agrees with the cynic in you (your quote) and I’d like to see this Court defanged (snake fangs, not honest dog fangs) so I hope there is a strong, successful, and intelligent response to all this.
but i think…andi could very well be wrong…that you weaken your case when you say it is “all about women.” women already feel that and will mostly be on the side of whatever we (or our leaders) do about it, but it is not all about women, it is all about a takeover of the law and the country by people whose motives may be sheer power, or some diabolical “ideology” they all (improbably) agree with. i don’t know if you would attract many more supporters by not making it “all about women”–i can’t imagine men who like women…at least their mothers…would vote or act against anything to preserve the right to “choice”– but for me at least, it is all about women and the rest of us…to fight against the evil in the SC and the Congress.
I liked the SC when it decided Brown v Board, and Gideon, and Miranda, and Roe against the feelings of most (?) of the country…so it is hard for me to justify hating them merely for going against the will of most of the people today..so I have to imagine there is a “higher law” than Dred Scott… if you know what I mean (the “higher law” remark cost Seward the presidency so he got to be Lincoln’s right hand man.)
I think the higher law you refer to is morality.
JackD
that’s what Seward thought too, but it cost him the Presidency. Lincoln was the smarter politician, and Seward was the first one to recognize that after a bad start in Lincoln’s cabinet.
I don’t know what Lincoln thought about the “higher law” but by the time of the Second Inaugural it sure sounds like he believed in it. Probably all along.