What Conservatives Need to Consider if the Court Overturns Roe v. Wade

Kavanaugh

With the Brett Kavanaugh hearings in the news, Politico writer and historian Joshua Zeitz takes the long view in his piece “Why Conservatives Should Beware of a Roe v. Wade Appeal.”  He writes:

To understand what’s potentially at stake, one need turn only to Justice Ruth Bader Ginsburg, an abortion-rights supporter who led the ACLU’s Women’s Rights Project in the early 1970s. Ginsburg has long argued that Justice Harry Blackmun’s polarizing 1973 Roe v. Wadedecision—on the surface an abortion rights victory—was actually a poison pill for the movement. By predicating abortion rights on an expansive but implied right to personal privacy, Ginsburg observed years after the fact, “the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” What’s more, the decision “stopped the momentum on the side of change.” It provided little impetus for advocates of reproductive rights to win hearts and minds, one legislative or ballot initiative at a time, and instead inspired opponents of reproductive freedom to do just that.

He adds:

As they stand poised to overturn Roe v. Wade, political conservatives may be in danger of extreme overreach. Indeed, they may fall into the same trap that befell abortion rights activists in the 1970s. In the mid-1970s, most Americans—54 percent—told Gallup that abortion should be legal in some but not all cases; far fewer Americans responded that abortion should never (21 percent) or always (22 percent) be legal. In effect, there was a broad political center, and in the wake of the court’s decision, the abortion rights movement no longer faced as much urgency in persuading abortion-rights moderates.

But in the years since, although abortion opponents have animated their base in ways that fundamentally shifted the political landscape, they haven’t succeeded in moving public opinion their way. Today, Gallup finds that only 18 percent of respondents believe that abortion should always be illegal. Fifty percent believe that abortion should be legal in some circumstances, and 29 percent support abortion rights without condition. In other words, the center has contracted, hard-line opposition has dropped, and supporters of reproductive rights have increased their share of the Gallup sample.

If Roe v. Wade sparked a political revolution in an era when hard-line opposition to abortion was soft, one can only imagine the strength of the counter-reaction should a conservative court all but criminalize a right that currently enjoys the qualified support of 79 percent of the American population.

Will overturning Roe v. Wade mobilize the pro-choice movement like never before?  Perhaps.  But I think most social conservatives are willing to take that chance.  History cannot predict the future, but it is worth reflecting on whether overturning Roe will, in the very long run, lead to more abortions and not less.

Read Zeitz’s entire piece here.

Al Mohler Pontificates on the Origins of the Culture War

KavanaughWho “started” the culture wars?

Recently some members of the Evangelical left called for a “pause” to the culture wars.  Evangelical women want Congress to reject the Brett Kavanaugh Supreme Court nomination and appoint a more moderate justice.  Read about their efforts here.

Meanwhile, Al Mohler, the conservative evangelical president of Southern Baptist Theological Seminary, has told PJ Media that such efforts are “doomed to failure.”  Here is a taste of Tyler O’Neil’s piece:

“The ‘Call to Pause’ is just the latest effort by the Evangelical left to blame the culture war on conservatives,” Al Mohler, president of the Southern Baptist Theological Seminary (SBTS), told PJ Media Sunday. He insisted that the “Call to Pause” is doomed to failure, and more likely to damage the reputations of its supporters than to achieve any cultural or political change.

Here is more:

Mohler fought back against the idea that conservative evangelicals are to blame for the culture war. “It was liberals who pushed the new ethic of personal autonomy and sexual liberation, and it was liberals who championed legalized abortion and celebrated the infamous Roe v. Wade decision in 1973,” the SBTS president told PJ Media.

He noted that “you can date organized evangelical involvement in American politics to Roe v. Wade,” noting that the conservative evangelical movement was largely a reaction to the Left’s culture war coups achieved by the Supreme Court. This became even more clear in light of Obergefell v. Hodges (2015), which supercharged conservatives’ emphasis on the Supreme Court.

“Now, just after the nomination of a clearly conservative judge, Brett Kavanaugh, as the next justice of the Supreme Court, the evangelical left is predictably opposing the nominee, and calling for a ‘pause’ in the culture war,” Mohler noted. “Amazingly enough, those behind the ‘Call to Pause’ are transparent about their fear that Roe v. Wade might be reversed, or even that abortion rights might be curtailed.”

A few thoughts:

  1. Mohler is often at his dogmatic worst whenever commenting on sexual politics.  I do not expect Mohler to agree with the evangelical women who oppose Kavanaugh’s nomination, but why does he have to come across as such an authoritarian ecclesiastical strongman whenever the issue he is addressing involves evangelical women?  One thinks he might have learned something about the voices of women in his denomination.
  2. Mohler pins the entire culture war on Roe v. Wade.  While this Supreme Court case played an important role in mobilizing the Christian Right, it is much more complicated than this.  But nuance, of course, will not help Mohler and his friends win the culture wars.
  3. Mohler continues to operate on the old Christian Right playbook for winning the culture wars.  If we nominate the right Supreme Court justice, the playbook teaches, the problem of abortion will go away.  For some context on this playbook see Believe Me: The Evangelical Road to Donald Trump.

Zimmerman: The GOP Should be Careful What They Wish for in Overturning *Roe v. Wade*

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University of Pennsylvania historian Jonathan Zimmerman wonders if overturning Roe v. Wade will lead to a liberal resurgence that might change the face of American politics.  Here is a taste of his piece at The New Republic:

Now, Justice Anthony Kennedy’s retirement from the bench has American conservatives chomping at the bit: with the swing vote removed and replaced with a nominee of President Trump’s choosing, perhaps the 1973 ruling can be overturned. Conservatives’ own history, however, suggests that they should be careful for what they wish for. Instead of an unambiguous and permanent conservative victory, they might face a liberal political resurgence unlike anything seen in decades. A victory in the courts could spawn backlash at the polls.

That, after all, is precisely what happened after 1973, with the roles reversed, when Roe galvanized a right-wing revolution. Sixteen states had liberalized their abortion laws in the years leading up to the decision, provoking sporadic conservative protests. But the issue didn’t become a truly national one until the Supreme Court intervened in 1973, declaring that the protections of the Constitution did not apply to the unborn.

Read the entire piece here.

What Happens if *Roe v. Wade* is Overturned?

Toobin-Supreme-Court

When Trump appoints a pro-life Supreme Court justice on Monday, and that justice is confirmed, there is a chance that Roe v. Wade will be overturned.  What would that mean for abortion rights in America? How is the pro-life movement thinking about this possibility?

Allyson Escobar has a helpful piece on the matter at the Jesuit America magazine.  Most of it focuses on the opinions of Richard Doerflinger, former associate director of pro-life activities at the U’S. Catholic Bishops.  Here is a taste:

If Roe were overturned, Mr. Doerflinger says, the decision by itself would not lead to any restrictions on abortion but would allow for more debate on the issue.

“It would free both sides in this debate to argue their case and try to reach at least a majority consensus on what is just and what the society will bear,” Mr. Doerflinger says.

“The result would likely be different in different states and different in the same state from one year to another, as with most issues in our democracy,” he says. “But the pro-life viewpoint would not be excluded in principle from that debate, blocked in advance by what the court calls a constitutional right.” 

Read the entire piece here.

Some Court Evangelicals are Downplaying a Possible Roe v. Wade Reversal

Trump fans

Court evangelicals Jerry Falwell Jr., Johnnie Moore, and Tony Perkins are all downplaying the idea that Roe v. Wade will be overturned by a conservative court.  Here is a taste of Steve People’s reporting for the Associated Press:

Like many religious conservatives in a position to know, the Liberty University president with close ties to the White House suspects that the Supreme Court vacancy President Donald Trump fills in the coming months will ultimately lead to the reversal of the landmark abortion case Roe v. Wade. But instead of celebrating publicly, some evangelical leaders are downplaying their fortune on an issue that has defined their movement for decades.

“What people don’t understand is that if you overturn Roe v. Wade, all that does is give the states the right to decide whether abortion is legal or illegal,” Falwell told The Associated Press in an interview. “My guess is that there’d probably be less than 20 states that would make abortion illegal if given that right.”

 

Falwell added: “In the ’70s, I don’t know how many states had abortion illegal before Roe v. Wade, but it won’t be near as many this time.”

The sentiment, echoed by evangelical leaders across the country this past week, underscores the delicate politics that surround a moment many religious conservatives have longed for. With the retirement of swing vote Supreme Court Justice Anthony Kennedy, Trump and his Republican allies in the Senate plan to install a conservative justice who could re-define the law of the land on some of the nation’s most explosive policy debates – none bigger than abortion.

And while these are the very best of times for the religious right, social conservatives risk a powerful backlash from their opponents if they cheer too loudly. Women’s groups have already raised the alarm for their constituents, particularly suburban women, who are poised to play an outsized role in the fight for the House majority this November.

Two-thirds of Americans do not want to see Roe v. Wade overturned, according to a poll released Friday by the nonpartisan Kaiser Family Foundation. Among women of reproductive age, three out of four want the high court ruling left alone. The poll was conducted before Kennedy’s retirement was announced.

Read the rest here.

Was It Worth It?

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As many readers know, I am in the midst of the promotional campaign for Believe Me: The Evangelical Road to Donald Trump.  I am sure that the recent retirement of Anthony Kennedy, and his almost certain replacement with a more conservative justice, will be a major theme of my upcoming interviews and speaking engagements.

It is probably premature to think about whether a conservative Trump court will overturn Roe v. Wade.  A lot has to happen before that occurs, but I think it is safe to say that it is more likely today than it was before Kennedy’s announcement.

Abortion remains at the top of the Christian Right agenda.  Trump’s evangelicals care more about abortion than they do religious liberty, gay marriage, immigration, or any other social issue.

When it comes to dealing with the problem of abortion, the members of the Christian Right have been reading from the same political playbook for more than four decades.  It teaches them that the best way to bring an end to abortion in America is to elect the right President, who, in turn, will support the right justices.

But it is not exactly clear how this strategy will bring an end to abortion in America.  If Roe v. Wade is overturned by the Supreme Court, the issue will be sent back to the states.  Abortion is very likely to remain legal in the so-called blue-states, including California and New York (just under 20% of the population), and illegal in many of so-called red states, especially in the deep South.  State legislatures will need to decide how they will handle the abortion issue in the remaining states, but a significant number of them will probably allow abortion in some form.  To put it simply, overturning Roe v. Wade will not end abortion in America.  (I write about this in greater depth in Believe Me).

With this in mind, one must ask conservative evangelicals if getting into bed with Donald Trump was worth it.

Rachel Held Evans put it bluntly:

When Trump appoints a conservative justice to replace Kennedy he will change the ideological make-up of the court for a generation or two.  Conservative evangelicals are rejoicing today.

But what will the witness of the church look like in a generation or two?  How compromised will it be?  And who is asking these questions today?

One person asking such questions is Thabiti Anyabwile, a writer for the Calvinist website The Gospel Coalition and the pastor of an evangelical church in Washington D.C.

He is pro-life on abortion.

Check out Anyabwile’s recent article at The Washington Post: “Overturning Roe v. Wade isn’t worth compromising with Trump, my fellow evangelicals.”  Here is a taste:

And how do we calculate the moral damage and accountability of the harm done to the legitimacy of the presidency itself nearly every day on Twitter and as a Russian collusion investigation continues?

In sheer numbers, more lives are ended by legalized abortion. Christians are correct to focus energy and concern on ending the practice. But in quieter, sometimes less observable ways, the carnage mounts in racial injustice and discrimination.

The potential nomination of a potential pro-life judge does not, in my opinion, alleviate the concerns I have about the racial injustices this same administration seems to multiply each day. What many evangelicals don’t seem to understand is they’re turning blind eyes to their brethren suffering at the hands of this administration for the long-held hope of overturning Roe. I’m for overturning Roe, but I’m also for protecting black and brown lives from racism and the kind of criminalization that swells our prisons and devastates communities or separates families at the borders.

Some Christians appear to have made a Faustian bargain for the mere price of a Supreme Court nominee. The Devil gets the better end of that deal!

Judgment begins at the household of God; that is, judgment begins with Christians. Most evangelical Christians worry about God’s judgment of people who are not Christians. But the Bible calls us to first judge ourselves in light of God’s expectations for Christians. Indifference to other moral issues and forms of suffering call into question one’s understanding of the faith and one’s claim to be a Christian. I can’t tell the difference between true and false Christians, but God surely can. He knows who belongs to Him and who will inherit the kingdom of God. They are the righteous ones whose faith leads them to feed the hungry, give water to the thirsty, welcome the stranger, clothe the naked, visit the sick, and visit those in prison (Matthew 25:35-36).

Read the entire piece here.

What Does Donald Trump REALLY Think About Evangelicals?

pence-and-trump

Here is a taste of Jane Mayer’s very revealing long-form New Yorker essay on Vice-President Mike Pence:

“Trump thinks Pence is great,” Bannon told me. But, according to a longtime associate, Trump also likes to “let Pence know who’s boss.” A staff member from Trump’s campaign recalls him mocking Pence’s religiosity. He said that, when people met with Trump after stopping by Pence’s office, Trump would ask them, “Did Mike make you pray?” Two sources also recalled Trump needling Pence about his views on abortion and homosexuality. During a meeting with a legal scholar, Trump belittled Pence’s determination to overturn Roe v. Wade. The legal scholar had said that, if the Supreme Court did so, many states would likely legalize abortion on their own. “You see?” Trump asked Pence. “You’ve wasted all this time and energy on it, and it’s not going to end abortion anyway.” When the conversation turned to gay rights, Trump motioned toward Pence and joked, “Don’t ask that guy—he wants to hang them all!”

Read the entire piece here.

This reminds me of the late David Kuo‘s 2007 book Tempting Faith: An Inside Story of Political Seduction in which he suggested that George W. Bush adviser Karl Rove manipulated evangelicals to support Republican candidates.

Princeton University’s President on the Democrats’ Religious Tests for Public Office

I saw this today at Alan Jacobs’s blog Snakes and Ladders:

I write, as a university president and a constitutional scholar with expertise on religious freedom and judicial appointments, to express concern about questions addressed to Professor Amy Barrett during her confirmation hearings and to urge that the Committee on the Judiciary refrain from interrogating nominees about the religious or spiritual foundations of their jurisprudential views. Article VI of the United States Constitution provides explicitly that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This bold endorsement of religious freedom was among the original Constitution’s most pathbreaking provisions. The Supreme Court’s unanimous decision in Torcaso v. Watkins (1961), holding that the First and Fourteenth Amendments render this principle applicable to state offices and that it protects non-believers along with believers of all kinds, is among the greatest landmarks in America’s jurisprudence of religious freedom. Article VI’s prohibition of religious tests is a critical guarantee of equality and liberty, and it is part of what should make all of us proud to be Americans.

By prohibiting religious tests, the Constitution makes it impermissible to deny any person a national, state, or local office on the basis of their religious convictions or lack thereof. Because religious belief is constitutionally irrelevant to the qualifications for a federal judgeship, the Senate should not interrogate any nominee about those beliefs. I believe, more specifically, that the questions directed to Professor Barrett about her faith were not consistent with the principle set forth in the Constitution’s “no religious test” clause.

Source

 

Here is Al Franken:

I should add that the Blackstone Legal Fellowship has an advisory board that includes law professors from  University of Texas, University of Nebraska, Harvard (Mary Ann Glendon), Princeton (Robert George), and Notre Dame.

Here is Diane Feinstein:

Here is Dick Durbin:

And let’s not forget Bernie Sanders from earlier this year:

Here is Emma Green’s reporting on this at The Atlantic.

Was C. Everett Koop Responsible for the Emegence of the Religious Right?

C. Everett Koop

Randall Balmer, writing for Ed Blum’s new Christian Century column “Then and Now,” says yes.

Balmer reaffirms his well-known argument that the leadership of the Religious Right initially coalesced not around the opposition to Roe v. Wade, but in opposition to Green v. Connally, the case that rescinded tax exempt status from schools that discriminated based on race.

But he does not dismiss the fact that anti-abortion was important.  Balmer suggests that it was opposition to abortion that rallied many Christian conservatives at the grassroots level.  This, he argues, is where the recently deceased C. Everett Koop enters the story.  Here is a taste of his piece:

…Koop, a distinguished pediatric surgeon, had long opposed abortion, but in 1978 he teamed up with Francis A. Schaeffer, a goateed, knicker-wearing evangelical philosopher, to produce a film series called Whatever Happened to the Human Race?
Schaeffer had long excoriated what he called “secular humanism” and warned that the legalization of abortion would soon lead to infanticide and euthanasia. Koop’s sterling reputation as a physician added credibility to the argument. As the film series toured American cities in 1979, the term “secular humanism” entered the political lexicon—and Falwell, Weyrich and other leaders of the religious right harvested popular anger over abortion. They adroitly mobilized politically conservative evangelicals into a potent voting bloc in time for the 1980 election.
The rest, as they say, is history. The religious right settled on Ronald Reagan as their champion and standard-bearer, despite the fact that as governor of California Reagan had signed into law the most liberal abortion bill in the nation. They supported him instead of his evangelical opponent with a longer record of opposing abortion, incumbent Jimmy Carter. 
The religious right’s reward was the appointment of Koop as surgeon general of the United States. But Koop proved to be his own man:
    • He called attention to the burgeoning AIDS crisis, even though others in the Reagan administration preferred to ignore it.
    • He advocated for sex education and the use of condoms, which pitted him against other leaders of the religious right, especially Phyllis Schlafly. 
    • He quashed a specious, politically motivated report that asserted that women who had abortions suffered adverse psychological effects.
    • He called attention to the deleterious effects of both smoking and second-hand smoke in restaurants and bars and on airplanes.

Five Myths About Roe v. Wade

Marc Stein calls our attention to five myths about this landmark Supreme Court case on its 40th anniversary.  Stein is the author of Sexual Injustice:  Supreme Court Decisions from Griswold to Roe.

1. Roe endorsed abortion on demand.”

2. “Roe rejected traditional restrictions and religious prohibitions on abortion.”

3. “Roe was a strongly feminist decision.”

4. “Roe recognized constitutional rights of sexual privacy.”

5. “Roe was only supported by big-government Democratic liberals and it was invariably opposed by small-government Republic conservaties.”

See how Stein develops his thoughts on these “myths” here.

Dispatches from the AHA in New Orleans (5)

Erin Bartram reports on a Friday session on the 40th anniversary of Roe v. Wade–JF

I spent the early part of the morning practicing my own paper in front of the mirror in my hotel room, and then headed out to the Hotel Roosevelt for a panel exploring the legacy of Roe v Wade on its fortieth anniversary. A quartet of scholars teased apart the threads of the often black and white discussion on abortion rights in the United States, revealing, as only historians can, the importance of specificity and a close attention to chronology.

Johanna Schoen, of Rutgers – New Brunswick, dealt with the evolution of the controversy over late term abortion in the 1970s, beginning with the case of a Massachusetts doctor prosecuted for manslaughter for performing an abortion. Key to her analysis was the move on the part of anti-abortion activists to shift the debate from abstract moral principles or discussion of the medical reasoning behind different types and timings of abortion to aesthetic concerns.

Sarah Rowley, of Indiana University Bloomington, examined “Roe” as a symbol, noting that for the first decade of its existence, it was rarely mentioned by name in discussions of abortion rights. In the 1980s, Rowley argued, the rhetoric of “Roe” changed. She claims that for American social conservatives, “Roe” came to signify all that they feared from an overreaching government acting through an unelected court that endangered local control. “Roe,” therefore, could remind one as much of one’s personal anger over the removal of prayer from schools as much as any feelings about abortion.

Sara DuBow, of Williams College, began her paper on the history of conscience clauses with several court decisions from previous weeks, serving as an effective reminder of the pressing importance of her work. In examining the 1973 conscience clause, DuBow noted the very different political landscape that allowed it to gain bipartisan support, not necessarily because legislators agreed with it, but because many of them felt its effects would be minimal. In light of current debates, and in light of the fact that 87% of U.S. counties now have no abortion provider, DuBow closed by pondering whether the legislators who voted for the conscience clause out of pragmatism not conviction would vote for it again today.

The final paper, by Mary Ziegler of Saint Louis University, examined the conflicts within groups like NARAL and NOW in the wake of the decision. Activists had hoped that implementation and education would be the next step after the court’s decision, and for many of them, that meant a broader agenda of reproductive health and social justice issues, focusing on intersecting racial and social issues. When state level limitations on abortion began to pile up in the 1970s, however, many activists disagreed on whether or not to pursue a single-issue agenda to defend a woman’s right to choose. The Reagan revolution and the increased attention on a state’s rights agenda from some in Congress caused many activists to resign themselves to a continued focus on abortion rights.

After a brief comment from Reva Siegel (Yale) because the panel itself was only 90 minutes, the audience had a chance to weigh in. The discussion shifted quite quickly to the issue of sources, more particularly to a discussion of the availability of archival holdings for the anti-abortion movement, and the effect that the dearth of sources has on historiography of that part of the movement. Nancy Cott testified to the fact that her attempts to work with archives to preserve the anti-abortion movement’s history for the use of scholars had met with resistance from those within the movement, and all present agreed that the nuanced, complex arguments necessary in understanding this issue could only be helped by the preservation of more of the relevant documents from all perspectives.