America Faces Its Biggest Abortion Battle Yet – How Did We Get Here?

America Faces Its Biggest Abortion Battle Yet How Did We Get Here?

As Texas bans abortion after six weeks and the Supreme Court prepares to hear a case that could overturn the law allowing safe, legal abortion, Sian Norris and Heidi Siegmund Cuda trace the right wing, racist and biblical forces at work

In the run-up to the 2016 US election, a Catholic Priest named Frank Pavone live-streamed an event in Amarillo, Texas. As he railed against the Democrat candidate Hillary Clinton, he took out a prop to emphasise his point that Clinton’s election would allow “child killing to continue in America”. 

The prop was an aborted foetus. 

Whether he knew it or not, Pavone was following in the footsteps of another anti-abortion priest, this time in 1980s Ireland. In the run-up to the 1983 referendum that banned abortion in the Republic for 35 years, Father Paul Marx – on a visit from the US – toured Ireland with a foetus in a jar. 

Five years since that fractious election campaign, and men like Pavone could be about to get their wish. On 31 August, the state of Texas passed a law banning abortion after six weeks and allowing anyone to sue those assisting a woman to get an abortion. 

Now, because the Supreme Court voted 5/4 to allow Texas to enforce its law, Roe vs Wade will cease to exist in Texas and is effectively over. 

It comes before a hearing planned for September, when the US Supreme Court will debate a legal case from the state of Mississippi. Lawyers are urging the court to give individual states power to ban abortion before viability. 

If the Supreme Court votes in favour of the Mississippi law, it would mean giving individual states the power to dictate their own abortion laws. Currently, the right to abortion is protected nationally. Experts believe this could lead to more than half of states banning abortion – forcing women in places like Mississippi to travel to more liberal regions to access a termination. 

Many simply won’t be able to – prohibited by cost and stigma. Many will risk their health, even their lives, to end a pregnancy illegally. 

How did America get here? 

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A Racist History 

There is often an assumption that abortion was always criminalised before the legal changes brought about in the West by feminism’s second wave. However, this is wholly inaccurate. In Medieval Europe, even the Catholic Church did not believe life began at conception before the 1600s and family planning was seen as a private, family matter. 

In the US, abortion drugs were widely available in the run-up to criminalisation in the 1860s. However, during this period, rising migration from countries such as Ireland and Mexico, combined with a low WASP birth rate and women’s increasing emancipation, created a panic that led to reproductive control. 

One anti-abortion medic, Dr Harold Storer, asked if the US would “be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the destiny of the nation”. His words were echoed by President Theodore Roosevelt in 1905, who admonished white women who chose not to have children and argued it was women’s responsibility to “maintain” the US’ “racial purity”. 

The racism of the anti-abortion movement, which saw reproductive control as a way of maintaining the white birth rate, continues today with far-right conspiracy theories about the “Great Replacement” that falsely claims high migration and feminism “repressing” the birth rate via abortion is causing a “white genocide”. As abortion doctor Willie Parker put it, “the thing all too many white anti-abortion activists really want, which they can’t say out loud, is for white women to have more babies in order to push back against the browning of America.”

The ban on abortion did not prevent abortion. Instead, it just made women less safe. It’s estimated there were 200,000 to 1.2 million illegal abortions in the US in the 1950s and 1960s. And survival rates from illegal abortion racialised – 80% of women who died in the New York State alone in the years running up to legalisation were black or Puerto Rican. 

“The so-called ‘pro-life’ movement has always claimed to be motivated by concern for life,” Ken Levy, the Holt B. Harrison Professor of Law at LSU Law School, told Byline Times. “They have always said that killing foetuses is murder and therefore abortion must no longer be considered a fundamental constitutional right.” 

This claim is of course undermined by how abortion bans lead to women needlessly dying. But it is further undermined, Levy argues, by the Republican Party’s catastrophic response to the pandemic. “Given the Right’s completely chilling indifference to the deaths of hundreds of thousands of people from COVID and gun violence, it’s become overwhelmingly clear that all of their purported concern for human life has been a total lie,” said Levy.

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A Biblical Moment 

The election of Donald Trump in 2016 gave the anti-abortion movement a new hope in Vice President Mike Pence – a man described by Trump as being “straight out of central casting”. 

The former Indiana Governor checked all the “anti” boxes – science, gay, abortion. He was Trump’s ticket for attracting the religious right vote. For Pence, Trump was his ticket for achieving a ban on abortion. 

Pence, a conservative evangelical Christian, had long harboured hopes of overturning Roe vs Wade. He was trained by the radical right Leadership Institute, an academy set up by Morton Blackwell in 1979 to learn his brand of right-wing “political technology”. The training focused on how to raise funds, how to communicate to voters, and how to rally support for radical right policies. A fellow alumnus is UK anti-abortion activist Robert Colquhoun. 

Alexis McGill Johnson, President of the Planned Parenthood Action Fund, told Byline Times how, “as an Indiana Congressman, Pence was the first lawmaker to target Planned Parenthood directly with his defunding bill. As Governor, he pushed his political agenda at the expense of the health and safety of Hoosiers, even in the face of an HIV outbreak. His drastic views were and remain out-of-touch with the majority of Americans who think abortion should be legal”. 

Pence saw in Trump a way to push through his anti-abortion agenda – bringing together Trump’s base with his own evangelical support. 

According to the journalist Anne Appelbaum, writing in The Atlantic in the run-up to the US 2020 election, Trump provided Pence with his “biblical moment” to fulfil his desired policies – to ban abortion, to roll back LGBTIQ rights and to protect whiteness in America. Appelbaum describes how a former member of the Trump administration said Pence believed that “we are approaching the Rapture, and this is a moment of deep religious significance”. He was joined in this belief by Secretary of State Mike Pompeo and Attorney General William Barr. 

This made it easy for deeply religious men to buddy up with a leader who couldn’t name his favourite bit of the Bible. Allying with Trump was a way to save America from the apocalypse. 

Pence was equally useful to Trump. An adulterous, sleazy, three-times married man with dodgy financial links was going to be a hard sell to the religious right. But with Pence’s rapture vision by his side, and a pro-choice woman on the opposite side, Trump could be the Bible Belt’s man. 

“For the Right, it’s not at all about life; instead, it’s all about power and money,” said Levy. “They have merely used the issue of abortion as a means to these ulterior, most-un-Christian ends.”

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Packing the Court

The election of Trump gave Pence and his evangelical, anti-abortion allies the launchpad from which to challenge safe, legal abortion in the US. 

But having an anti-abortion leadership team wasn’t enough. In order to overturn Roe vs Wade, Pence and his allies needed a Supreme Court packed with anti-abortion voices. It’s the Supreme Court judges, not the White House, who have the power to challenge Texas and who will decide the outcome of the Mississippi case – and the future of women’s and girls’ rights in the US. 

Right-wing organisations and the Republican Party itself have worked in tandem over the past few years to create a Supreme Court that will vote their way on abortion. 

On the political side, these efforts were spearheaded by Republican leader of the Senate, Mitch McConnell, when he blocked President Obama from nominating Merrick Garland to be a Supreme Court judge. This left a vacancy that allowed Trump to appoint anti-abortion Judge Neil Gorsuch to the Supreme Court in January 2017, followed by fellow anti-abortion lawmakers Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020. 

The Supreme Court now has a conservative majority of six to three, with the conservative judges likey to rule in favour of restricting abortion. 

“The anti-choice movement has spent decades finding new ways to insinuate themselves into our Government, our policies, and our politics,” said Ilyse G. Hogue, outgoing president of NARAL Pro-Choice America.

McConnell was aided in his efforts to block Garland’s nomination by the Judicial Crisis Network, an anti-abortion group created to “drum up support for Republican judicial nominees”. They spent $3 million on ad campaigns opposing Garland and claimed Obama was trying to “dominate the court with extremist ideologues.”

Another influential group was the Federalist Society, an anti-abortion, anti-LGBTIQ organisation that has built a “pipeline” to judicial influence. It provides conservative lawyers and trainees with support, training and networking opportunities, while making sure its proteges remain “faithful” to Federalist aims when they reach the court bench. 

In the New Yorker, Conservative legal activist Edward Whelan said that “no one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe V. Wade than The Federalist Society’s Leonard Leo.”

Leo worked with both the Trump and the Bush administrations to get his men onto the Supreme Court bench, with NARAL saying he was “personally responsible for helping install one-third of the current Supreme Court”. McConnell advised Trump to work with the Federalist Society to create his Supreme Court nominee list.

Outside of the Supreme Court, Trump appointed a record number of federal judges in his first year of the Presidency. These judges were overwhelmingly white, young and conservative.  

“For decades, this change in the court will threaten our civil rights, access to health care, freedom to marry, legal protections from discrimination, and reproductive health and rights,” a spokesperson from Planned Parenthood told Byline Times.

Planned Parenthood stopped taking appointments for abortions after six weeks of pregnancy in Texas due to the law change. But the organisation is “far from defeated. We deserve leaders who respect our wishes and who champion our health and rights.” 

“Up until recently, the pro-choice camp has had to take the pro-lifers at their word and respond, defensively, that abortion involves not merely foetus’s rights but also women’s rights,” explained Levy. “But after the right’s callous response over the past year and a half to COVID-19 and over the past ten years to gun violence, the pro-choice camp no longer needs to debate the issue on the right’s terms.”