The End of Roe

By Paul Macrae, DFLA Historian

On June 24th, 2022, the dream that millions of pro-lifers had spent decades waiting for finally occurred. The Supreme Court overturned Roe vWade. It seemed almost unreal that this goal occurred. Many no doubt privately wondered if it would ever actually occur. While they certainly hoped, in the back of their mind the creeping feeling that their task while noble, but Sisyphean lingered. After so many false hopes (in 1992 Justice Kennedy initially voted to overturn Roe before changing at the last minute), who was to say that victory would not once again slip through their fingers. Instead, the dream came through and the court declared that there was no right to an abortion under the constitution. 

Given that Justice Alito’s majority opinion remained largely the same from the draft leaked a month prior. Commentary focused more on Justice Thomas’s concurring opinion where he expressed the belief that the court should go back and reconsider Griswold v. ConnecticutLawrence v. Texas, and Obergefell v. Hodges. However, for pro-lifers it is more important to look at what the opinions did not say. 

For all the fear mongering by pro-choice media outlets (in truth little more than anti-Catholicism and hypocrisy) about the supposed “threat” to American life by “Christian Legal Tradition” or “Catholic Natural Law” that President Trump’s new justices would unleash upon the nation, there was nothing new in the three opinions overturning Roe. All repeated the same argument going all the way back to the dual dissents of Justices White and Rehnquist. That there is nothing in the language, history, or traditions of the United States to suggest that the 14th Amendment prohibited a state from outlawing abortion. The three opinions emphasized that the constitution was “neutral” on abortion and that states were free to decide for themselves to allow abortion or not.  

In none of the opinions did any of the justices suggest that abortion in it of itself was unconstitutional. Despite Justice Neil Gorsuch being a student of philosopher John Finnis, he and the other Justices did not endorse Finnis’s amicus brief that would have done just that.

That they did not do so is hardly surprising. For decades the standard procedure for the pro-lifers regarding Roe was to appoint enough justices who would vote to overturn the decision, send it back to the states and work from there. The idea that they should go beyond that had been consigned to the fringe. The two titans of conservative Jurisprudence in American law Antonin Scalia and Robert Bork both rejected that idea with Scalia, considered a champion of life, saying:

There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

While hailed as the victory of the pro-life movement, it is more accurate to say that Dobbs was the triumph of the “State’s Rights” approach to abortion. That the movement would choose this method was not set in stone. In July of 1973 the National Right to Life Committee (NRLC) condemned the state’s rights amendment, only a “Human Life Amendment”, which would apply to all people from conception, was acceptable.

In 1974, Cardinal Medeiros of Boston testifying before congress in support of the Human Life Amendment said: 

A ʺstates rightsʺ amendment… does not seem to be a satisfactory solution to the existing situation. Protection of human life should not depend on geographical boundaries. The Supreme Court’s action itself has made abortion a federal question.

  Next year, L. Brent Bozell’s magazine Triumph asked a group of pro-life leaders that in the wake of the failure of congress to pass a Human Life Amendment, would it be better for the movement to instead work on passing a “state’s rights” amendment? Of the eight who wrote back only one supported it half-heartedly on the basis that it would at least save some lives. That most members of the movement did not support this approach is unsurprising. What is surprising is the vehemence with which they rejected it, calling it “unacceptable”, “useless”, and “unworthy” of support. One dismissed the entire concept as “geographic roulette” Michael Schwartz said it was no different than saying that abortion only be allowed during business hours Monday through Friday. 

Prof Warren Carroll explained that getting any amendment through the congress was politically unlikely especially in the face of “…the passionate and well-financed baby-killing lobby” abandoning the “principled stand” of the HLA in favor of state’s rights would only ruin the movement’s moral credibility.

Charles Rice derided the idea of compromising with the anti-life forces in the country, arguing that the SR Amendment might increase abortion rates in the country since it would serve to constitutionalize abortion. From there the federal government could cut off funding to states that ban abortion. Of course, even if that did not occur state supreme courts could just as easily do what the Federal court did and declare abortion a right under the State constitution (this very thing occurred in Kansas in 2019). He ends by saying the pro-life response to the SR Amendment is “To H#!l with it”.   

William Devlin provided the strongest moral rationale against it:

“The State’s Rights Amendment would indeed inscribe in the Constitution an unacceptable indifference, in principle, to an inviolable human right. Considering such a possibility, however, is not nearly as disturbing as the realization that the suggested amendment strategy requires not only our acquiescence in an enterprise beyond our capacity to control, but our involvement as architects and promoters of the amendment itself…the right of a state is not the same thing as the right of an individual human being. In supporting a States’ Rights Amendment we tacitly concede that the right of an innocent human being to live is properly dependent upon the right of a state to enact protective legislation.”

Another striking aspect of the response article was the different party affiliations. Carroll cut his teeth working for far-right Republican (and the 1972 American Independent party presidential candidate) John Schmitz, Rice was a founder of the Conservative party of New York. Paul Fisher was a legislative aide to James J. Delaney (D-NY). Schwartz worked for PA Democratic State rep Martin Mullen when he ran unsuccessfully for Governor in 1974.

As historian Danial K. Williams in his brilliant history Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade, the natural home for Pro-lifers, had been the Democratic party with its de facto Christian Democracy and base of socially conservative blue-collar Catholics. There were also human rights activists who saw their opposition to abortion as a continuation of their campaign against racism, poverty, and war. In contrast the Republican party be they Nelson Rockefeller liberals or Barry Goldwater conservatives viewed abortion through the lens of individual liberty or as a method for population control. Of course, there is no denying there were members of both parties that dissent from this. Anthony Beilenson of California was the leading figure in legalization while Maryland rep Lawrence Hogan was a vigorous foe of abortion. 

By the end of 1972 Pro-lifers had reason to be hopeful for the future. In Michigan Pro-lifers spearheaded by State Rep. Rosetta Ferguson, the first Black woman elected to the state legislature and a proud Democrat, enjoyed a landslide victory over a measure to legalize abortion in the state. Same would occur in South Dakota. In the Presidential election they were able to push President Nixon and Senator McGovern into a more pro-life position. McGovern’s two running mates Tom Eagleton and Sargent Shriver were pro-life. They were one vote short of overturning governor Rockefeller’s veto of a bill that would have overturned the state’s liberal abortion laws. Everything pointed to the movement’s success.

Then like a tidal wave the Supreme Court washed away all these gains in January 1973 with Roe. While it seems remarkably naïve now, many pro-lifers thought that the court would side with them and even declare abortion itself unconstitutional. Given the increased focus on human rights and dignity it seemed clear that the court would agree that the unborn were just as deserving of protection. There was reason to think that the progressive philosophy of the “Living Constitution” would serve this end. After all, William Blackstone and other legal scholars argued that with advances in science and understanding of fetal life, the doctrine of “Quickening” would be outdated and instead all abortions were to be treated equally regardless of the stage. Instead, the worst possible outcome occurred abortion on demand was now legalized across all 50 states. A new national push had to be made.

Rise and Fall of the Human Life Amendment

Calls for a Human Life Amendment had been growing in the years before Roe. The previously mentioned Rice gave a speech in 1970 making the case for it. This pushed it into overdrive following the 1973 ruling. Using the Amendment process to overturn a decision by the court was hardly unprecedented with congress having done so in cases of jurisdiction, citizenship, income tax, and voting age. For Pro-lifers this was just another instance where the court must be corrected. 

The first HLA was introduced in January 1973 by rep Lawrence Hogan (R-MD). Two others appeared later in the year from senator James L. Buckley (C-NY) and rep. James A. Burke (D-MA). While most national politicians did not want to touch the issue, chair of the Senate Judiciary Committee Birch Bayh (D-IN) decided to hold a hearing for Buckley’s amendment in the spring of 1974. Despite his conservative reputation, the Buckley amendment was supported by liberal senators Mark Hatfield (R-OR) and Harold Hughes (D-IA). Alongside Bayh were three Republicans senators, Hiram Fong (HI), Roman Hruska (NE), and Marlow Cook (KY), none were viewed as very sympathetic to the amendment. 

The inverted nature of abortion politics would surprise many today. Pro-lifers were outraged in 1974 when President Ford announced Nelson Rockefeller to be his Vice President calling him “…perhaps the single most influential abortion advocate in public life…” On the other hand, the National Organization for Women (NOW) considered Ted Kennedy to be one of their greatest foes for his opposition to abortion.

The first day six members of congress, three for each side, were brought in to testify. For Pro-lifers it was Senators Buckley, Jesse Helms, and Rep John Zwach (R-MN). For pro-choicers it was Rep. Donald Fraser (D-MN), Bella Abzug (D-NY), and former senator Ernst Gruening (D-AK); there were no sitting senators willing to testify against the amendment.[1]

Gruening, who had been a champion of birth control while in office, was surprisingly blunt saying that abortion was distasteful and “…the killing of nascent life.”, but that he still argued that it should be legal. He then went on to say “…I may add that I feel there is something definitely immoral for parents to spawn more children than they can support” 

Next day four Cardinals came to testify the first time that Catholic prelates would before congress. Cardinal Krol mixed no words in his opening statement:

Every week, since the Supreme Court’s decisions of January 22, 1973, there have been as many deaths from abortion as there were deaths at Nagasaki as a result of the atomic bomb. Every nine days there are as many deaths from abortion as there were American deaths in the 10 years of the Vietnam war. 

The four Cardinals who testified expressed their opposition to the second section for it allowed an exception for the life of the mother. Instead, they would have preferred it explaining the difference between direct and “indirect” abortions. While respectful the committee grilled them and other supporters of the HLA. In contrast no questions at the time were asked to their opponents (although in fairness Abzug had to leave for issues on the House floor). In later hearings pro-choicers often faced little to no questioning of their opinion in contrast to pro-lifers. The Cardinal’s acts elicited a mixed response. William Marshner found them to be more forceful than expected but felt they could have done more. On the other hand, Sargent Shriver (more on him later) gave a convoluted critique that while it was not wrong for them to testify they risked “overemphasizing” the issue and causing people to ignore the great work the church was doing regarding racism and poverty.

In the end the committee failed. Bayh, the leading constitutional scholar for the Democrats, came out in the negative for the HLA. Bayh’s opposition led most other senate Democrats to accept his argument. In fairness to Bayh and others, their opposition can be understood. Having grown up in the shadow of Prohibition these sons of the New Deal were taught that Roosevelt’s repeal of the 18th Amendment was one of his greatest achievements. Implicit in this view was the lesson that amendments should not be used for advancing public policy or political goals.  While a narrow interpretation it was at least understandable.

Despite this Bayh reiterated that he was not personally in favor of abortion and introduced his “Alternatives to abortion” package which included many proposals that pro-lifers for years had argued for. Nowadays members of the Democratic party are increasingly not allowed to hold the position that abortion is morally wrong or something not to be celebrated even when it has no bearing on their actual policies. 

Post-Roe Election

Having failed in 1974, pro-lifers looked to 1976 and hoped that as had occurred in the last Presidential election, they could pressure both parties into placating pro-lifers. At the same time the movement wanted to rally around one candidate to put the issue at center stage. The man they envisaged to do so was Sargent Shriver, brother-in-law to JFK, first head of the Peace Corp, and McGovern’s second vice presidential candidate.

Shriver and his wife Eunice had long been active in the Pro-life cause.  Soon leaders such as Marjory Mecklenburg, David Louisell, and Paul Ramsey rallied to his cause. While John Noonan said Shriver was the best placed candidate for the cause, provided he made opposition to abortion a central part of his campaign. However Shriver soon dashed their hopes when he said that although he personally opposed abortion he supported Roe and opposed the HLA. Eunice for her part said that while she supported the HLA it was unlikely to pass and so instead they should focus on anti-poverty issues in order to at least reduce abortion. While most Pro-Lifers supported that they saw no reason why they could not support the HLA at the same time. 

According to Williams it would have been political suicide for a Democrat in 1976 to endorse the HLA. However, Shriver’s refusal to endorse the HLA, if anything, kicked the legs out from under his campaign. Shriver both alienated his most loyal supporters and failed to differentiate himself from the rest of candidates. It was also clear that in Shriver’s heart he did not believe his own opposition to the HLA. As former strategist of his during the 72-campaign said:

“He’d be much better off if he’d just get up there and say, ‘I think abortion is murder and you better know it!… he doesn’t realize that people would respect him a lot more if he was willing to make enemies, if he could stand up there and tell them honestly what he believes.”

In fact, evidence suggests that if anything being more pro-choice was a detriment in the Democratic primary. Rockefeller may have been the “leader” of anti-life forces in the country, but Bayh had now garnered a special hatred from the movement. Pro-lifers would frequently picket his rallies and unrelenting in their condemnation. Bayh’s campaign like Shriver’s soon fizzed out. In later years Shriver returned to his true beliefs in calling for ending Roe.

Only three candidates in 1976 supported the HLA: Ronald Reagan, George Wallace, and finally Ellen McCormack. McCormack, who had never served before in office ran in the Democratic party with her core message being opposition to abortion. Through grassroots activism she became the first woman to receive federal matching funds for a Presidential campaign Despite being virtually unknown she achieved considerable success getting into the high single digits, beating both senators and governors, by the end she had won 22 delegates. While Reagan failed to unseat Ford, his supporters were strong enough to have the party platform endorse the HLA. Despite his personal reservations Ford accepted the plank and as a further gift to pro-lifers replaced Rockefeller with Bob Dole.

The man who won the 1976 election Jimmy Carter did so in part by his stance on abortion. Carter would swing back and forth telling both sides what they wanted to hear opposing the HLA but also tax-payer funding for abortion. The ambiguously worked to his advantage when rallying pro-lifers. At a meeting with Catholic Church leaders Carter convinced them that he was on their side when it came to abortion, when he later reiterated that he opposed the HLA, Cardinal Joseph Bernardin said that he had deceived them. 

Despite the party platform supporting the HLA, Ford did not win the pro-life vote, instead splitting it with Carter. The Carter administration oversaw the Hyde Amendment which banned federal funding for abortion, but as Carter said made no attempt to pass the HLA. Near the end of his term Carter had come around to the idea that Roe had gone too far and instead abortion should only be allowed in cases of rape, incest, or the life of the mother (a position he still holds today) the winds were turning. When Ted Kennedy primaried Carter in 1980, one of his central planks was repeal of the Hyde Amendment. Carter won, but the ground was already shifting under his feet. While Reagan ultimately won the pro-life vote Carter still was able to retain some support garnering votes from future Vice President Mike Pence and Archbishop Charles Chaput of Philly.

    The Post HLA Years

       The furthest the Human Life Amendment got was in 1983 with Hatch-Eagleton Amendment which declared that abortion was not a right under the constitution however it failed to meet the 67 vote threshold to move forward getting 49 votes (34 Republicans and 15 Democrats). 

The idea of having the court overturn the decision ironically came from Representative Fr. Robert Drinan who supported legalized abortion (much to the outrage of the Church). In November 1974 Drinan wrote a  letter to a fellow Jesuit arguing that overturning a decision was “…precisely the route taken during the past several decades by the leaders of the civil-rights movements. After some 50 years, the blacks of America finally got a decree in 1954 that vindicated total equality for that race.” While it is hard to believe that Drinan was genuine in his suggestion, the idea would gain traction in the 1980s.

With the HLA stalled in the Senate, pro-lifers began hoping that President Reagan’s alignment with them during the 1980 campaign could yield fruit. The President’s pledge to appoint conservative Justices who would limit the “excesses’ ‘ of the previous decades gave hope to the idea that the court would reverse the ruling. While Justice O’Conner was met with skepticism by pro-lifers, they certainly had reason for hope. By 1986 Chief Justice Burger had turned against Roe realizing that it went much further than he realized. O’Conner in that same case also supported overturning Roe. It seemed just one more Justice was needed. It soon went downhill from there. While Justice Scalia was unanimously approved to join the court, Reagan’s next nominee, Robert Bork, went down in defeat in part because of his open opinion that Roe was wrong. It should however be stressed that Bork had plenty of other baggage that made his confirmation an uphill battle. Ultimately the seat went to Kennedy who along with O’Conner changed their mind on Roeand instead saved the case in Casey.

With the national Democratic party becoming ardent in its support for abortion (since Roe every Democratic-appointed Justice has opposed all abortion restrictions) the chances of the HLA clearing the Senate only shrank. If Roewas to be destroyed it had to be via the court which meant electing more Republicans and aligning themselves with its judicial philosophy of weakening the government involvement in the affairs of business. A belief strongly at odds with the New Deal ethos of the movement’s founders.  

Where to go from here

            Flat footedness had long been the Achilles’s heel of the movement. Just as they were caught off guard by Roe they were when it was overturned. As pro-life leader Benjamin Watson said it “Many of us brought into the lie that abortion is over after Dobbs v. Jackson.” Reality hit the movement 40 days after Dobbs. Kansas, one of the reddest states in the Union voted 59.16% to 40.84% against an amendment that would have overturned the previously mentioned 2019 ruling.Now it was time for social conservatives to ask “What’s the matter with Kansas”    

 Unsurprisingly the pro-life movement was vastly outspent by pro-choice groups (usually out of state and dark money groups). This is par for the course, pro-lifers are always outspent by the abortion industry. In some cases 10 to 1. Of course, this has not stopped the “professional” pro-life groups from opposing campaign finance reform that would likely help level the playing field. 

            Money of course was not the only reason. Anti-Catholicism has always been a founding principle of pro-abortion advocacy and Kansas was no expectation. State Senator Cindy Holscher sounded like she was campaigning in 1922 as opposed to 2022, publishing an article so awash with anti-Catholic cliches it would make Senator “Cotton” Tom Heflin proud. 

            Even more depressing were the defeats in November where life lost all 5 of the ballot initiatives there. While most knew California and Vermont were a lost cause there is no denying the sting of Kentucky, Montana, and Michigan although all were closer than Kansas. While the overturning of Roe would seem to suggest the strength of the right to life movement. Reality suggests over-wise. Pro-lifers may have won at court, they have lost everywhere else over the last 50 years. 

  • In 1972 Michigan voters rejected a proposal that would legalize abortion up to 20 weeks by 60.65% to 39.35%. Last year voters enshrined abortion on demand in the state constitution by 56%.
  • That same year the New York assembly was one vote short of overturning Governor Rockefeller’s veto of the repeal of the abortion legalization law he signed in 1967. In 2019 NY passed one of the most permissive laws in the world that allowed for abortion for any reason up to 24 weeks
  • In 1973 a bill  in congress to legalize abortion on demand received 8 sponsors. In 2022, such a bill passed the house with 219 votes and received 49 votes in the Senate. 

Whereas Pro-lifers were able to influence both parties into opposing abortion legalization nation-wide, they now find themselves despised by one and grudging tolerated by another. In the case of the Democrats, the party of Sargent Shriver, John McCormack, and Bob Casey Sr has made abortion absolutism the cornerstone of the party. Candidates can differ on immigration, budget, unions, etc, but objecting to drilling a hole into a 20-week-old baby and vacuuming its brains out is a bridge too far. In 2012 the party convention was labeled an “Abortionpalooza”. While in 2016 delegates cheered when a speaker said she had an abortion. In 2020 Fr. James Martin courageously prayed for “The unborn child in the womb.”, although it was a lone star of brightness in an otherwise dark sky. Since taking office the Biden Administration has emerged as the most ardent supporter of legalized abortion since the issue came to national attention.

            While in theory the Republican party calls itself pro-life it has always been an uncomfortable fit. The party’s libertarian ethos, interventionist foreign policy, and distrust of government were hardly a natural home for the pro-lifers of the 1960s. Catholic Bishops were among the prominent critics of the Reagan, Bush, and Trump administrations on such issues while also praising their pro-life positions. The reality of the GOP’s commitment to the right to life was made abundantly clear in the aftermath of Dobbs. While dutifully praising the decision at first, politicians were soon falling over each other trying to run away from the issue, preferring to kick the can down the road blandly recycling the “state’s rights” argument as if the right to life was something to be voted on as opposed to being fundamental to humanity and America.

  • In Arizona, senate candidate Blake Masters “scrubbed” his pro-life positions including support for a fetal personhood law.
  • Adam Laxalt running in Nevada went out of his way to tell people abortion was legal in the state and he would not support a nationwide ban. Gubernatorial victor Joe Lombardo gave contractionary responses to his views on the matter.
  • Most recently former President Trump blamed the “abortion issue” for the underwhelming performance in the 2022 midterms.

As Devlin predicted 48 years ago, the state’s rights approach does not celebrate human life; it only proliferates indifference. While the road ahead seems dark, one should not lose heart. In the late 1960s pro-lifers suffered a series of defeats only to rebound by the early 70s. I’ll end this piece with a final word from one of those contributors to Triumph, “I am a total optimist. We can win it all. Don’t settle prematurely for half a cake, we might never get the rest.”

[1] At the next round of hearings, a month later three senators did testify against. Charles Percy of Illinois, Edmund Brooke of Massachusetts both Republicans, and Democrat Floyd Haskell of Colorado.