In his satirical 2004 American history textbook, comedian Jon Stewart joked that the Supreme Court’s landmark Roe v. Wade ruling had settled the abortion issue once and for all. “The Court rules that the right to privacy protects a woman’s decision to have an abortion and the fetus is not a person with constitutional rights, thus ending all debate on this once-controversial issue,” Stewart solemnly recounted, tongue firmly in cheek.
The 1973 Roe v. Wade decision, in fact, unleashed massive protest and controversy across the United States, extending into the present day. And it profoundly altered our political landscape, providing a rallying cry and a lightning rod for social conservatives.
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.
“We need not resolve the difficult question of when life begins,” Roe v. Wade declared. “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary . . . is not in a position to speculate as to the answer.”
But millions of Americans were perfectly happy to provide their own reply: life begins at conception. Over the next few years, Roe brought millions of new voters to the polls—and into the Republican camp.
Some of them were fundamentalist Christians like the Reverend Jerry Falwell, who had spent the first part of his career warning against engaging in worldly politics of any kind. “Preachers are not called to be politicians, but soul winners,” declared Falwell in 1965, condemning ministers who participated in the civil rights movement. “We need to get off the streets and back into the pulpits and into the prayer rooms.”
After Roe, Falwell changed his tune. “Abortion is a weapon that has annihilated more children than Pharaoh murdered in Egypt, than Herod murdered when seeking the Christ child, than the Nazis slaughtered of the Jews in World War Two,” he thundered. In the face of such calamity, Falwell argued, devout Christians could no longer eschew electoral politics.
Falwell founded the political organization The Moral Majority in 1979, which helped catapult Ronald Reagan into the White House the following year. As governor of California, Reagan had signed one of America’s most liberal abortion laws in 1967. But he also changed course in the ensuing years, supporting a constitutional amendment to overturn Roe during his unsuccessful attempt to wrest the Republican nomination from incumbent Gerald Ford in 1976. With Reagan’s election in 1980, opposition to Roe became the gospel of the GOP. The party’s platform called for “the appointment of judges . . . who respect traditional family values and the value of human life.”
Abortion foes were shocked and disappointed when Reagan nominated Supreme Court Justice Sandra Day O’Connor, who had voted in favor of a liberal abortion bill while serving in the Arizona state legislature. But Reagan moved swiftly to placate the anti-abortion camp after that, repeating his call for the court to reconsider the matter. “We need only recall that in Brown v. Board of Education the court reversed its own earlier ‘separate-but-equal’ decision,” Reagan said in 1983, on the 10thanniversary of Roe. “I believe if the Supreme Court took another look at Roe v. Wade, and considered the real issue . . . it would change its mind once again.”
This scenario is precisely what excited social conservatives are envisioning, now that President Trump gets to nominate a replacement for Justice Kennedy. Kennedy’s retirement was “an answer to prayer,” according to Iowa conservative Christian leader Bob Vander Plaats. “We have a chance to take down Roe v. Wade,” Vander Plaats told Fox News last week. “This is a historic moment.”
But polls consistently show that most Americans support abortion rights and oppose the repeal of Roe. On July 2, Quinnipiac released a new survey demonstrating that Americans back the Roe decision two to one: 63 percent approve of the ruling and only 31 percent disagree with it. If the Supreme Court explicitly overturned the decision, it might provide Democrats with a way to bring new voters to the polls—just as Roe did for the GOP.
Republican judges know that, too, which is why a flat-out repeal of Roe remains improbable. The more likely path is a continued restriction of abortion rights, of the type that we’ve already seen over the past few years: parental notification laws, stricter requirements for clinics, and so on.
But if Roe v. Wade gets struck down, liberal Democrats will finally receive a symbolic weapon of the same magnitude as the 1973 ruling. Whatever the case reversing Roe is called, it will be reviled—and, most of all, remembered—by millions of voters. And in ten or twenty years’ time, we might be remembering how the Supreme Court triggered yet another revolution in American politics.