The bombshell leak of an initial draft majority opinion written by US Supreme Court Justice Samuel Alito revealing that the conservative-heavy panel of judges had voted to rescind the monumental Roe v. Wade decision has polarised America on abortion again.
In the draft, circulated inside the court and obtained by POLITICO, Justice Alito wrote: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision … Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The last line in the above excerpt (“… return the issue of abortion to the people’s elected representatives”) is profoundly significant and implies a much deeper meaning though Justice Alito might not have intended to imply the same: let the court put back the polarising issue in the hands of Republicans and Democrats so that they continue tossing it around at will to mobilise voters.
Abortion in America has never been about women’s rights. It is more of an electorally divisive issue used both by the GOP and the Dems to bolster their prospects of winning the Oval Office or the Midterms. Abortion has either been embraced by candidates to galvanise voters during campaigns or jettisoned in the nick of time to prevent damage.
All this while, women have played into the hands of politicians.
The anti-abortion, or pro-life, movement started in the 1970s and coalesced with Republicans in the ’80s. What had begun as a white Catholic movement against abortion metamorphosed into large-scale agitation with the support of Mormons and white Evangelicals.
The movement, which rallied white religious people on defending the foetus, progressed with both Republicans and Democrats increasingly steering towards feminism, women’s liberation and the civil rights movement — forces that reshaped American politics in the 1970s.
However, despite the rage of pro-life backers against Roe, both Republicans and Democrats walked cautiously on abortion. In fact, before the election of Ronald Reagan, abortion was never the GOP’s primary concern.
For example, in their book Abortion and American Politics, Barbara H Craig and David M O’Brien mention Richard Nixon’s 1971 quote: “Abortion is an unacceptable form of population control.” Yet he didn’t propose federal action against abortion. While his Democrat contender George McGovern clearly said that he had “never advocated federal action to repeal” abortion and “would take no such action” if elected.
In the study ‘Abortion and the Presidential Election of 1976: A Multivariate Analysis of Voting Behaviour’, Maris A Vinovskis of the University of Michigan mentions how Jimmy Carter campaigned in Iowa by stressing his “personal opposition” to abortion but never called for banning it via a constitutional amendment after winning the caucuses.
“No active government should ever contribute to abortions. We should do all we can to minimise abortions and to favour a national statute that would restrict the practice of abortion in our country,” Carter told the Catholic Mirror newspaper during the campaign, misleading anti-abortion voters into supporting him. However, after winning Iowa, Carter flipped. “I do not favour a constitutional amendment to give states local option-authority without knowing the specifics at this time,” he told Newsweek.
How Republican used abortion
In the subsequent years, Republicans realised the significance of opposing abortion with Reagan emphasising traditional American family values to shore up white evangelical Christian voters as more radical conservatives started pressuring the GOP and advocating a ban as the most important political issue. By the 1980s, Republicans started increasingly backing anti-abortionists like televangelist Jerry Falwell and his Moral Majority, who demanded a constitutional amendment.
Abortion polarised the US to an extent that it became a deciding factor in the nomination of Supreme Court judges — for example, Justice Robert Bork, nominated by Reagan to the Supreme Court in 1987, was not confirmed by the Senate due to the grave concerns of civil and women’s rights groups, including his anti-abortion stance.
By the 1990s, abortion had caused fissures in the Democratic Party. At the 1992 Democratic National Convention, pro-life Pennsylvania governor Bob Casey Sr., who wanted to speak fervently against his party’s stance on abortion, wasn’t invited.
In 2017, Vermont’s independent Senator Bernie Sanders, who finished second in the fight for the Democratic Party’s nomination for president both in 2016 and 2020, endorsed Omaha mayoral candidate Heath Mello, who had sponsored or voted for anti-abortion Bills in the Nebraska state legislature.
In successive years, more white Evangelicals and Catholics started supporting Republicans during elections. A November 2016 analysis by Pew Research Centre showed that 8 out of 10 evangelical Christians voted for Donald Trump while only 16 per cent for Hillary Clinton.
Trump’s 65-percentage-point winning margin among self-described Protestants, Catholics, Mormons and others either matched or beat the victory margins of George W. Bush in 2004, John McCain in 2008 and Mitt Romney in 2012. The support of white Catholics propelled Trump to a seven-point lead among Catholics overall (52 per cent to 45 per cent) despite Hispanic Catholics backing Clinton by a 41-point margin (67 per cent to 26 per cent).
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To appease white Evangelicals during the 2016 campaign, Trump had said: “The Justices that I am going to appoint — and I’ve named 20 of them — the justices that I’m going to appoint will be pro-life. They will have a conservative bent.” Abortion was a key factor in his destructive politics of fear and insecurity. Despite his dirty personal details and sexual perversion out in the open, these Americans voted for him.
Over the decades, abortion has become one of the primary factors for Republican wins. “You can make the argument that a nontrivial reason that Donald Trump is president is because of abortion,” Mary Ziegler, a law professor at Florida State University who specialises in family, sexuality, and the legal history of reproduction, said in 2019.
Similarly in the 2020 presidential election, 63 percent of white Catholics who attend Mass every month or more supported Trump, a Pew survey found. White evangelical Protestants too voted for him in large numbers with 85 percent of voters who attend religious services frequently and 81 percent who attend less frequently.
The Republican reaction to the leaked draft exposed the party’s hypocrisy on abortion. Despite almost kissing their prized trophy, snagged after a decades-long gruelling marathon, the party displayed its fake concern about the leak.
The theatrics bordered on juvenility. “Leaking a premature Supreme Court opinion — regardless of subject matter — undermines the Court as an institution and erodes America’s trust in this pillar of our constitutional structure,” Pennsylvania senator Pat Toomey said.
“[Y]ou need, it seems to me, a lecture to concentrate on what the news is today. Not a leaked draft, but the fact that the draft was leaked,” Senate minority leader Mitch McConnell told reporters at the Capitol Hill.
The GOP demanded a criminal probe into the leak with South Carolina senator Lindsey Graham suggesting that it might have done irreparable harm to the US — as if it were a matter of natural security.
Even Trump, who had slammed abortion during the 2016 campaign, made only passing references to abortion — the GOP will “protect innocent lives” — and stressed more on immigration during a rally in support of Senate GOP candidate Mehmet Oz in Pittsburgh on 7 May.
The reasons were obvious. First, abortion was tossed out again since the GOP’s main aim of overturning Roe had almost been achieved. Any further polemics on abortion could galvanise Democratic voters in the misterms, as polling shows. An All In Together/ Lake Research/Emerson College polling last September showed that if abortion is made illegal, 54 per cent of women would be more interested and 32 percent much more interested in voting in the midterms.
Second, Republicans want to focus their attack on Dems over inflation, Covid-19, immigration, crime and President Joe Biden’s low ratings, not abortion, this November.
Democrats have always sidelined abortion
Right from Carter to Biden, Democrats have always sidelined abortion. Shockingly, Biden, a Roman Catholic, supported a Republican-majority Senate’s push for a constitutional amendment in March 1982 to allow states to overturn Roe during the Reagan era.
Portraying himself as a “victim of his background”, the 39-year-old senator from Delaware, a self-professed supporter of women’s rights, had said, “I’m probably a victim or a product, however you want to phrase it, of my background. It was the single-most difficult vote I’ve cast as a US senator.”
During the first 224 days of his presidency, Biden avoided using the word ‘abortion’ despite the Texas ban SB8. He used the word only once in a short White House press statement released on September 1, 2021: “The Texas law … deputises private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion …”
The party has only voiced its opposition to abortion restrictions but never as vociferously as the GOP’s pro-life campaign. Dems opposed the 1976 Hyde Amendment — which banned the use of federal funds to pay for abortion except to save the life of the woman or if the pregnancy arises from incest or rape — 40 years later in 2016.
“Time and time again, we have seen Democrats use abortion rights as a campaign issue and fail to deliver on their promises to protect and expand our right to reproductive freedom,” Analilia Mejia, co-executive director of the Centre for Popular Democracy, told the National Public Radio after the leak.
The latest example of the party’s use of abortion during elections confirms Mejia’s statement. Top Democrats, including House majority leader Steny Hoyer, Speaker Nancy Pelosi and House Majority Whip Jim Clyburn, are supporting anti-abortion rights Democratic Texas Representative Henry Cuellar, challenged by pro-abortion rights progressive immigration lawyer Jessica Cisneros in the Primaries.
“Well, we’re a diverse party. We have diverse opinions. Our platform says that we’re pro-choice party, and we are pro-choice party. That does not mean that there’s not room in our party for alternative voices,” Hoyer told the Insider.
The same Hoyer had said on the day of the draft leak that “House Democrats will do whatever we can to affirm women’s right to access abortion care safely and legally”.
House Democrats will do whatever we can to affirm women’s right to access abortion care safely and legally in every corner of our country. I urge the Senate to take urgently needed action to protect the rights of women and codify Roe v. Wade into law as soon as possible.
— Steny Hoyer (@LeaderHoyer) May 3, 2022
Cuellar was the only Democrat who had voted against the Women’s Health Protection Act, which would codify Roe into federal law, when the House passed the Bill last September. In fact, after the leak, Cuellar had said in a statement that as a Catholic, he doesn’t support abortion though he condemned the court opinion.
See the below statement from Congressman Cuellar ⬇️⬇️ pic.twitter.com/LCuR0NXcJv
— Henry Cuellar (@CuellarCampaign) May 3, 2022
The party, fully aware of the obstacles in codifying Roe, especially in the Senate, is reticent. Starting with Biden, none of the Democrats promised success on codifying Roe.
Instead, Biden tried to rally voters for the midterms. “If the Court does overturn Roe … it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
Senate majority leader and New York senator Chuck Schumer, who was one of the 30 Democrat senators who marched down the Capitol in support of the pro-choice supporters protesting in front of the Supreme Court, promised to hold a vote but said that “a vote on this legislation is not an abstract exercise”.
Dems aren’t even willing to comment on when a woman can get an abortion done. “This is a very personal, tough decision for women. I don’t think government should be involved in it,” Ohio Democratic gubernatorial nominee Nan Whaley told NBC News’ Meet the Press Daily.
Even Americans are not strictly divided into two camps on abortion. According to a 1975 Gallup survey, only 25 per cent Americans supported abortion under all circumstances and 18 per cent wanted it banned without exception.
Similarly, a Pew survey published on 6 May, two days after the draft was leaked, shows a similar unsurety. Only 19 per cent want abortion to be legal in all cases and only 8 per cent want it banned in every case. By contrast, 71 per cent either say it should be mostly legal or mostly illegal, or say there are exceptions to their blanket support for, or opposition to, legal abortion.
The ‘choice versus life’ debate has made it easier for both the parties to mobilise voters on Election Day with Americans preferring their party’s position on a particular issue to looking at the issue broadly.
Abortion is about ‘Us vs Them’: a cataclysmic discord lacking comity and soaked in toxic politics. Women’s rights have turned into a political weapon in the name of pro-choice and pro-life movements — both the voter and the parties equally share the blame for being the self-proclaimed guardians of morality.
According to Michele Bratcher Goodwin, the author of Policing The Womb: Invisible Women and the Criminalization of Motherhood, there is a “a lingering disregard for the equality and the personhood of women” in the US.
The writer is a freelance journalist with two decades of experience and comments primarily on foreign affairs. The views expressed are personal.
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