Before (and after) Roe v. Wade: New questions about backlash

Yale Law Journal

Volumn 120, Issue 8, 2011, Pages 2028-2087

  Greenhouse, Linda ^a   Siegel, Reva B ^a  

^a YALE UNIVERSITY   (United States)

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EID: 79957505629     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (516)

1. 410 U.S. 113 (1973).
2. 347 U.S. 483 (1954).
3. see Penn, Schoen & Berland Assocs., C-Span Supreme Court Survey 4 (June 21, 2010), http://www.c-span.org/pdf/2010SCOTUS_poll.pdf. The survey, conducted in June and September 2009, asked respondents whether they could "name any case heard by the U.S. Supreme Court." In September 2009, those who answered yes (fortynine percent) were then invited to name a case.
4. Eighty-four percent named Roe v. Wade.
5. The next most frequently named case was Brown v. Board of Education, with nine percent.
6. Transcript of Record at 3095, Perry v. Schwarzenegger, No. C 09-2292-VRW (N.D. Cal. June 16, 2010). Roe has acquired such notoriety that the case was invoked in British debates over whether to adopt judicial review and establish a supreme court.
7. See Select Comm. on Constitutional Reform Bill: Minutes of Evidence (Apr. 6, 2004), available at http://www.publications.parliament.uk/pa/ld200304/ldselect/ldcref/125/4040608.htm (remarks of Lord Rees-Mogg) ("[Roe's] effects, apart from the effect, obviously, of allowing abortion, were to make abortion an unfinished issue, an issue that has not been closed in American political life from that day to this. It also strongly politicised further the Supreme Court itself.").
8. David Brooks, Op-Ed., Roe's Birth, and Death, N.Y. Times, Apr. 21, 2005, at A23.
9. See Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007).
10. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010).
11. [hereinafter Before Roe v. Wade].
12. For expressions of this view in the media and the academy, George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
13. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
14. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
15. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
16. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
17. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 207, 208-09 (emphasis added).
18. The column noted that "[m]ajority support for legal abortion has increased sharply" since the previous survey, five months earlier. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972. at 208.
19. see also Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey 91 (2005) (noting that Justice Blackmun had the George Gallup article, clipped from the Washington Post, in his Roe case file).
20. See George Will, 'Strict Construction': An Interpretation, Wash. Post, Mar. 2, 1973, at A18.
21. On Justice Powell's role, see John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. 346 (2001).
22. See generally Andrew D. Hurwitz, Jon O. Newman and the Abortion Decisions: A Remarkable First Year, 46 N.Y.L. Sch. L. Rev. 231, 244-47 (2003) (tracing discussion of viability in deliberations over a draft of the Roe opinion).
23. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005)
24. See, e.g., Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005) ("The state-level reform process had exhausted itself.... Given how often claims about the need for 'judicial restraint' have Roe in mind, it is striking how incorrect are the empirical assertions that often form the basis of such a critique of Roe. ").
25. Laurence H. Tribe, Abortion: The Clash of Absolutes 50-51 (1990) (questioning whether liberalization of abortion law through politics was feasible once countermobilization began; observing that between 1971 and 1973 no states voted to repeal criminal abortion statutes; and observing that a referendum liberalizing access to abortion was defeated in Michigan by antiabortion activists despite broad public support).
26. see also David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. 833, 840-41 (1999) (noting that during the months before Roe, the outlook for legislative change "looked very bleak indeed").
27. Scott Lemieux, Constitutional Politics and the Political Impact of Abortion Litigation: Judicial Power and Judicial Independence in Comparative Perspective 226 (Aug. 18, 2004) (unpublished Ph.D. dissertation, University of Washington) (on file with authors) (noting that "the brief trend at the state level toward liberalizing abortion laws had almost completely stalled" before the Court ruled).
28. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 280-322 (1992).
29. See Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 280-322 (1992).
30. see also Janet Farrell Brodie, Contraception and Abortion in Nineteenth-Century America 268-72 (1994) (examining the role of the AMA).
31. James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900, at 147, 163 (1978) (situating the antiabortion movement in the movement for medical professionalization in the latter nineteenth century).
32. Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973, at 57, 80-83 (1997) (discussing the motivation of the AMA to control the public image of the medical field and the process by which "[s]pecialists in obstetrics and gynecology claimed the moral authority of religious leaders and the right and duty to make reproductive decisions"). The trend toward criminalization began in the decades before the Civil War and accelerated after the war. At the time of the Fourteenth Amendment's ratification, not all states criminally prohibited abortion throughout pregnancy, despite Justice Scalia's recent assertions to the contrary.
33. See Jim Nolan, Scalia Criticizes Court's Expansion of 'Due Process,' Richmond Times-Dispatch, Nov. 20, 2010, http://www2.timesdispatch.com/news/2010/nov/20/scal20-ar-665714/(reporting that Justice Scalia, speaking on November 19, 2010, at the University of Richmond School of Law, asserted that the Fourteenth Amendment's due process guarantee cannot be understood to encompass a right to abortion because abortion "was criminal in all the states" at the time of ratification). Justice Scalia's claim is incorrect; even scholars who oppose abortion acknowledge variance across states at the time of the Fourteenth Amendment's ratification.
34. See, e.g., James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17 St. Mary's L.J. 29, 33 (1985) (counting, without defining, the number of "antiabortion" statutes that state legislatures had enacted and concluding that "[a]t the end of 1868, the year in which the fourteenth amendment was ratified, thirty of the thirty-seven states had such statutes"). At the time of the Fourteenth Amendment's ratification, the AMA was still encountering public resistance to its campaign to criminalize abortion; the campaign was led by Dr. Horatio Storer, who attempted to address women directly with an antiabortion tract written for the AMA in 1866.
35. Horatio Robinson Storer, Why Not? A Book for Every Woman (Boston, Lee & Shepard 1866). This campaign was successful. In the period between 1860 and 1880, "[a]t least forty antiabortion statutes were enacted, with thirteen jurisdictions formally outlawing abortion for the first time, and at least twenty-one states revising existing legislation. "
36. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. (1992), at 314.
37. James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900, (1978), at 200-45 (surveying achievements of the AMA campaign to criminalize abortion).
38. Mary Steichen Calderone, Illegal Abortion as a Public Health Problem, 50 Am. J. Pub. Health 948, 951 (1960).
39. Mary Steichen Calderone, Illegal Abortion as a Public Health Problem, 50 Am. J. Pub. Health (1960), at 959. Studies from the time period demonstrate that most therapeutic abortions performed by hospitals were for white patients with private health insurance; low-income patients whose health care was publicly funded were almost entirely unable to receive therapeutic abortions.
40. Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973, (1997), at 205.
41. This theme was an express part of New York's decision to repeal its nineteenth-century criminal abortion statute. See, e.g., Memorandum of Assemblywoman Constance E. Cook (1970).
42. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 147, 147-48 (noting, as a leading advocate for the repeal legislation, that "[o]nly repeal would bring equality" of access to safe, legal abortions for both rich and poor women).
43. Governor Nelson A. Rockefeller's Veto Message (May 13, 1972).
44. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 158, 160 (declaring, as New York's governor, that if he permitted the legislature to recriminalize abortion, "[t]he truth is that a safe abortion would remain the optional choice of the wellto-do woman, while the poor would again be seeking abortions at a grave risk to life in back-room abortion mills").
45. Two highly publicized episodes in the early 1960s sparked public concern about access to abortion. One was Sherri Chessen Finkbine's flight to Sweden in 1962 to obtain an abortion after learning too late that she had taken a drug containing thalidomide, a substance that prevented the development of fetal arms and legs; she had been unable to obtain a legal abortion anywhere in the United States. Sherri Chessen Finkbine, The Lesser of Two Evils, Soc'y for Humane Abortion, Inc. Newsl., Sept. 1968.
46. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 11.
47. The other was Dr. Jane E. Hodgson's decision to perform an illegal abortion for a patient who had contracted German measles, a disease widely known to cause serious defects in babies born to mothers who contract it in early pregnancy. See Jane E. Hodgson, Abortion: The Law and the Reality in 1970, Mayo Alumnus, Oct. 1970, at 11.
48. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 19.
49. Model Penal Code § 230.3 (Proposed Official Draft 1962).
50. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 24, 25.
51. The ALI code listed these as acceptable justifications for abortion: a "substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect" and a pregnancy "result[ing] from rape, incest, or other felonious intercourse, " including "illicit intercourse with a girl below the age of 16. " Sherri Chessen Finkbine, The Lesser of Two Evils, Soc'y for Humane Abortion, Inc. Newsl., Sept. 1968 These proposed exceptions to blanket criminalization did little to make legal abortions available to most women who sought them and were understood as such by the drafters of the Code.
52. Professor Louis B. Schwartz, the Model Penal Code's co-reporter, observed with evident dismay in a 1963 article that "the Code's inhibitions on abortion still amount to a very substantial restriction of freedom. It is difficult to formulate a secular justification for this restriction, at least as applied to interruptions of pregnancy at an early stage for reasons that are persuasive to a large proportion of the population. " Louis B. Schwartz, Morals Offenses and the Model Penal Code, 63 Colum. L. Rev. 669, 686 (1963).
53. See David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 302-03 (1994).
54. Austin C. Wehrwein, Abortion Reform Supported in Poll: Most Catholics Are Found To Favor Liberalization, N.Y. Times, Apr. 24, 1966, at 83 (finding support for decriminalizing abortion for ALI-type justifications, including "[h]ealth, 71 per cent; rape, 56 per cent; deformed baby, 55 per cent; low income, 21 per cent; unmarried, 18 per cent; birth control, 15 per cent").
55. David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), at 332.
56. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 177 tbl.5.1.
57. Ruth Roemer, Abortion Law Reform and Repeal: Legislative and Judicial Developments, 61 Am. J. Pub. Health (1971), at 122.
58. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 54 (describing one strain of early public dialogue about overpopulation that worried about poor Americans having more children than they were able to support).
59. On the history of birth control as a prescription for the poor, see Matthew Connelly, Fatal Mis-Conception: The Struggle to Control World Population, at xii (2008) (presenting a history of "the most ambitious population control schemes" that "aimed to remake humanity by controlling the population of the world, typically by reducing the fertility of poor people and poor countries").
60. Brochure, Zero Population Growth, reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 55, 57.
61. Paul R. Ehrlich, The Population Bomb 148 (1968).
62. Paul R. Ehrlich, The Population Bomb (1968). at 140.
63. See, e.g., David Allyn, Make Love, Not War: The Sexual Revolution (2000).
64. Jane F. Gerhard, Desiring Revolution: Second-Wave Feminism and the Rewriting of American Sexual Thought, 1920 to 1982 (2001).
65. Helen Gurley Brown, Sex and the Single Girl (1962).
66. See Laurie Ouellette, Inventing the Cosmo Girl: Class Identity and Girl-Style American Dreams, 21 Media, Culture & Soc'y 359, 361 (1999).
67. See Jane E. Brody, Mary S. Calderone, Advocate of Sexual Education, Dies at 94, N.Y. Times, Oct. 25, 1998, § 1, at 52.
68. In the years after World War II, social scientists challenged traditional understandings of sex. See Alfred C. Kinsey, Wardell B. Pomeroy & Clyde E. Martin, Sexual Behavior in the Human Male (1948).
69. Alfred C. Kinsey et al., Sexual Behavior in the Human Female (1953).
70. William H. Masters & Virginia E. Johnson, Human Sexual Response (1966). New scientific accounts of human sexual practice helped clear the way for proposals to reform the criminal law.
71. See William N. Eskridge Jr., Dishonorable Passions: Sodomy Laws in America 1861-2003, at 114-17 (2008).
72. David Allyn, Private Acts/Public Policy: Alfred Kinsey, the American Law Institute and the Privatization of American Sexual Morality, 30 J. Am. Stud. 405, 405, 410-13, 417 (1996). In 1957, Britain's Wolfenden Commission, formally known as the Committee on Homosexual Offences and Prostitution, recommended the decriminalization of consensual homosexual activity between adults in private and also proposed changing the prosecution of prostitution. The report's proposal to decriminalize traditionally criminalized morals offenses involving sex in private between consenting adults prompted the famous Hart-Devlin debates.
73. See, e.g., Peter Cane, Taking Law Seriously: Starting Points of the Hart/Devlin Debate, 10 J. Ethics 21, 22 (2006) (noting that the Wolfenden committee report "provoked a famous reaction from Lord Patrick Devlin, " who argued on principle that the criminal law should not "be limited to regulating conduct that has direct adverse effects on identifiable individuals" and noting that H.L.A. Hart's response, and Devlin's counter-response, "formed the basis of one of the most important jurisprudential debates of the second half of the 20th-century").
74. Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75 Yale L.J. 986, 988 (1966) (describing how Devlin originally agreed with the central tenet of the Wolfenden report-that public and private morality should be separate-but how, after careful study, he "ended in the conviction that these ideals were not only questionable, but wrong"). In this same period, in the United States, Herbert Wechsler led the American Law Institute in preparing a draft Model Penal Code that reformed regulation of sodomy and abortion.
75. See Anders Walker, American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge, 2009 Wis. L. Rev. 1017, 1029-51.
76. See Thomas I. Emerson, Nine Justices in Search of a Doctrine, 64 Mich. L. Rev. 219, 232 (1965) ("It is conceivable that sometime in the future, as mores change and knowledge of the problem grows, all sexual activities of two consenting adults in private will be brought within the right of privacy. ").
77. Harriet F. Pilpel, Sex vs. the Law: A Study in Hypocrisy, Harper's Mag., Jan. 1965, at 35, 36-37 (quoting a Catholic scholar, Father John Courtney Murray, criticizing Connecticut's prohibition against contraception as "unenforceable without police invasion of the bedroom" and "therefore indefensible").
78. Griswold v. Connecticut, 381 U.S. 479 (1965). Connecticut was an outlier, having retained on the books its 1879 law that made the use of contraception a crime subject to fine and imprisonment. The state courts had upheld the law, and the legislature had rejected repeated efforts to amend or repeal it.
79. See Poe v. Ullman, 367 U.S. 497, 501 (1961) (recounting the statute's history).
80. Abortion Act, 1967, c. 87, § 1 (Eng.).
81. Sexual Offenses Act, 1967, c. 60, § 1 (Eng.).
82. William N. Eskridge Jr., Dishonorable Passions: Sodomy Laws in America 1861-2003, (2008), at 124-27, 144.
83. Model Penal Code § 230.3 (Proposed Official Draft 1962).
84. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 178 tbl.5.3.
85. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 24 (noting that shortly after the ALI published recommendations for abortion reform, twelve states adopted them, at least in part).
86. David Allyn, Make Love, Not War: The Sexual Revolution (2000), at 98.
87. Beth Bailey, Sex in the Heartland 200-11 (2002).
88. Judy Klemesrud, An Arrangement: Living Together for Convenience, Security, Sex, N.Y. Times, Mar. 4, 1968, at 40 (discussing the increasing prevalence of the "arrangement"-nonmarried, college-student couples living together).
89. Student Comm. On Human Sexuality, Sex and the Yale Student (1970).
90. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 63-67.
91. One group of women split off from the National Organization for Women (NOW) in 1967 to form the Women's Equity Action League (WEAL), which lobbied and litigated for educational and workplace equality but did not make abortion liberalization a part of its platform. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 36.
92. see also Ninia Baehr, Abortion Without Apology: A Radical History for the 1990'S, at 38 (1990) (noting that the more conservative women who left NOW to form WEAL considered abortion reform "a 'women's liberation' issue more than a 'women's rights' issue").
93. But see Now, National Organization for Women Bill of Rights (1967).
94. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 36, 36-38.
95. For an account tracing the evolution of constitutional claims for repeal of abortion laws from the medical model to the women's rights model and showing the social understandings informing early feminist arguments for control over childbearing decisions, see generally Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875 (2010).
96. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 1883-84 ("Framed as part of a challenge to the social organization of sex and motherhood, the abortion rights claim was an incendiary cocktail of gender justice claims. ").
97. For example, the Association for the Study of Abortion was founded in 1965 by two obstetrician-gynecologists, Alan F. Guttmacher and Robert E. Hall. See Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 31. As Christine Stansell vividly describes it: "The male professionals who led the repeal movement had always framed it as altruistic, coming to the aid of needy women and their families. Radical feminists changed the tenor of popular action from a battle to rescue somebody else (the pregnant woman) to one led by women fighting for themselves. "
98. Christine Stansell, The Feminist Promise: 1792 To The Present 323 (2010).
99. Betty Friedan, Address Before the First National Conference on Abortion Laws: Abortion: A Woman's Civil Right (Feb. 1969).
100. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 38, 39.
101. Betty Friedan, Address Before the First National Conference on Abortion Laws: Abortion: A Woman's Civil Right (Feb. 1969).
102. Betty Friedan, Address Before the First National Conference on Abortion Laws: Abortion: A Woman's Civil Right (Feb. 1969).
103. An article in the Washington Post in the same year as Friedan's speech illustrates how feminists began to identify statutes criminalizing abortion as evidence of women's social subordination. The story reported that about a dozen young women had burst into a hearing room in which a New York legislative committee was holding a hearing on abortion. The women, evidently impatient with the pace of reform, shouted, "No more male legislators, " "Why are you refusing to admit we exist?" and "Every woman resents having our bodies controlled by men, " before the chairman moved the hearing to another room and closed it to the public.
104. The Right to Life, Wash. Post, Feb. 14, 1969, at D2.
105. On the role of storytelling in feminist abortion-rights advocacy, see Christine Stansell, The Feminist Promise: 1792 To The Present (2010), at 325 (recounting the "shift from she-who-was-described to she-who-speaks").
106. On the role of storytelling in feminist abortion-rights litigation, see Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. (2010), at 1880, 1885, 1892 (describing use of women's testimony in New York and Connecticut litigation).
107. See, e.g., Brief for New Women Lawyers et al. as Amici Curiae Supporting Petitioners, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-18).
108. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 273, 276-77 (arguing that laws depriving women of control over their reproductive lives disabled women from full participation in the economy and society at large).
109. Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. (2010), at 1887-92.
110. Betty Friedan, Call to Women's Strike for Equality (Aug. 26, 1970).
111. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 41, 42.
112. Betty Friedan, Call to Women's Strike for Equality (Aug. 26, 1970). at 43.
113. For the image of a flyer distributed after the Women's Strike for Equality and reprinting its slogans, see Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 44.
114. See, e.g., Linda Charlton, Women March Down Fifth in Equality Drive, N.Y. Times, Aug. 27, 1970, at A1.
115. For sources offering media history and other accounts of the strike, see Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 312-13.
116. See Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev 1323, 1372-76 (2006) (locating strike demands in the feminist movement's larger aims).
117. E.g., United States v. Vuitch, 402 U.S. 62 (1971).
118. Abramowicz v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y. 1969).
119. Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972) (frequently referred to as "Women v. Connecticut").
120. Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. (2010)., at 1884-85 (tracing the shift from litigation on the medical model to litigation on the women's rights model).
121. For documents from all sides of the conflict in New York and Connecticut, see Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 119-96.
122. Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. (2010)., at 1885-92.
123. Plaintiffs' Brief, Abramowicz, 305 F. Supp. 1030 (No. 69 Civ. 4469).
124. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 140, 147.
125. See Amy Kesselman, Women Versus Connecticut: Conducting a Statewide Hearing on Abortion, in Abortion Wars: A Half Century of Struggle, 1950-2000, at 42 (Rickie Solinger ed., 1998).
126. Amy Kesselman, Women Versus Connecticut: Conducting a Statewide Hearing on Abortion, in Abortion Wars: A Half Century of Struggle, 1950-2000, (Rickie Solinger ed., 1998). at 59.
127. Women vs. Connecticut Organizing Pamphlet (1970).
128. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 167, 169.
129. Women vs. Connecticut Organizing Pamphlet (1970). 62.
130. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 177-96.
131. See, e.g., Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005) ("The state-level reform process had exhausted itself.... Given how often claims about the need for 'judicial restraint' have Roe in mind, it is striking how incorrect are the empirical assertions that often form the basis of such a critique of Roe. ").
132. Laurence H. Tribe, Abortion: The Clash of Absolutes 50-51 (1990) (questioning whether liberalization of abortion law through politics was feasible once countermobilization began; observing that between 1971 and 1973 no states voted to repeal criminal abortion statutes; and observing that a referendum liberalizing access to abortion was defeated in Michigan by antiabortion activists despite broad public support).
133. see also David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. 833, 840-41 (1999) (noting that during the months before Roe, the outlook for legislative change "looked very bleak indeed").
134. Scott Lemieux, Constitutional Politics and the Political Impact of Abortion Litigation: Judicial Power and Judicial Independence in Comparative Perspective 226 (Aug. 18, 2004) (unpublished Ph.D. dissertation, University of Washington) (on file with authors) (noting that "the brief trend at the state level toward liberalizing abortion laws had almost completely stalled" before the Court ruled).
135. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
136. Jack Rosenthal, Survey Finds Majority, in Shift, Now Favors Liberalized Laws, N.Y. Times, Aug. 25, 1972, at 1.
137. Model Penal Code § 230.3 (Proposed Official Draft 1962).
138. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 24, 25.
139. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 177 tbl.5.1.
140. Ruth Roemer, Abortion Law Reform and Repeal: Legislative and Judicial Developments, 61 Am. J. Pub. Health 500 (1971).
141. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 121, 121.
142. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 178 tbl.5.3.
143. Ruth Roemer, Abortion Law Reform and Repeal: Legislative and Judicial Developments, 61 Am. J. Pub. Health (1971), at 122.
144. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
145. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 215 ("[L]egislatively initiated reform laws stopped in 1970. "). In 1971 and 1972, liberalization efforts failed in twelve states: Georgia, Illinois, Indiana, Maine, Massachusetts, Michigan, Missouri, North Dakota, Ohio, Oklahoma, South Dakota, and Texas.
146. Scott Lemieux, Constitutional Politics and the Political Impact of Abortion Litigation: Judicial Power and Judicial Independence in Comparative Perspective (Aug. 18, 2004), at 226. In addition, the New York legislature, its members under heavy pressure from the Church, voted in 1972 to repeal the 1970 decriminalization measure, and only Governor Nelson A. Rockefeller's veto prevented a return to New York's nineteenth-century statute.
147. Governor Nelson A. Rockefeller's Veto Message (May 13, 1972), at 159 (objecting in his veto message that "the extremes of personal vilification and political coercion brought to bear on members of the Legislature raise serious doubts that the vote to repeal the reform represented the will of a majority of the people of New York").
148. Scott Lemieux, Constitutional Politics and the Political Impact of Abortion Litigation: Judicial Power and Judicial Independence in Comparative Perspective (Aug. 18, 2004), at 226-27 (describing the stalled efforts at legislative reform after 1970).
149. For an attack on the ALI statute authored by Robert Byrn, one of the early lawyers of the National Right to Life Committee, see Robert M. Byrn, Abortion in Perspective, 5 Duq. L. Rev. 125 (1966).
150. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 86.
151. For one account of the activities of the Catholic Church in opposing abortion reform in the years before and immediately after Roe, see Connie Paige, The Right to Lifers: Who They Are, How They Operate, Where They Get Their Money 55-63 (1983).
152. For accounts of Catholic opposition to ALI reform bills in Connecticut (1967), Arizona (1967), Georgia (1967), and New York (1967), see David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), at 316-19.
153. For accounts of Catholic opposition to reform in California (1967) and New York (1970), see Connie Paige, The Right to Lifers: Who They Are, How They Operate, Where They Get Their Money (1983), at 55-57.
154. George Dugan, State's 8 Catholic Bishops Ask Fight on Abortion Bill: Pastoral Letter Read, N.Y. Times, Feb. 13, 1967, at 1.
155. Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America 270, 273 (Mary Jo Weaver & R. Scott Appleby eds., 1995). (discussing Catholic opposition to reform in New York and Michigan).
156. George Dugan, State's 8 Catholic Bishops Ask Fight on Abortion Bill: Pastoral Letter Read, N.Y. Times, Feb. 13, 1967, at 1.
157. Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America 270, 273 (Mary Jo Weaver & R. Scott Appleby eds., 1995).
158. Kevin P. Phillips, The Emerging Republican Majority (1969), at 81-82.
159. See Clergy Statement on Abortion Law Reform and Consultation Service on Abortion (1967).
160. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 29.
161. See Southern Baptist Convention Resolution on Abortion (June 1971).
162. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 71.
163. The Southern Baptist Convention promised "to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother, " Clergy Statement on Abortion Law Reform and Consultation Service on Abortion (1967), and the National Association of Evangelicals "recognize[d] the necessity for therapeutic abortions to safeguard the health or the life of the mother" and possibly in case of rape or incest, Nat'l Ass'n of Evangelicals, Statement on Abortion (1971).
164. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 72, 73.
165. However, the evangelical publication Christianity Today expressed deep skepticism toward the therapeutic model as early as 1970. Editorial, The War on the Womb, Christianity Today, June 5, 1970, at 24.
166. For additional sources on the differences in response of Catholic and Protestant churches, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 69-90.
167. George Dugan, State's 8 Catholic Bishops Ask Fight on Abortion Bill: Pastoral Letter Read, N.Y. Times, Feb. 13, 1967, at 1.
168. On Catholic mobilization against abortion in New York in 1972, see Fred C. Shapiro, 'Right to Life' Has a Message for New York State Legislators, N.Y. Times, Aug. 20, 1972, § 6 (Magazine), at 10, recounting the Church's support for the growth of the New York right-to-life movement and estimating Catholic membership at eighty-five percent.
169. Edward B. Fiske, Catholics Scored on 'Harsh' Stand on Abortion Bill: Protestant Unit and Jewish Groups Assert They, Too, Care About 'Human Life,' N.Y. Times, Feb. 25, 1967, at A1.
170. Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35.
171. Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35.
172. See Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America 270, 273 (Mary Jo Weaver & R. Scott Appleby eds., 1995). This was the first national organization of groups that had been isolated in local conflict: Throughout the 1960s, anti-abortion (or pro-life) groups had been cropping up across the country to battle abortion liberalization at the state level. Most of these groups were heavily Catholic in composition, and they generally held meetings at their local parish church or school. For the most part, however, there was very little contact between groups, and very little sense of shared purpose. In 1967 [Father James McHugh of the Catholic Family Life Bureau] sought to remedy this situation by creating a national network of pro-life leaders which he called the National Right to Life Committee (NRLC). It was not until three years later in Chicago, however, that the NRLC actually met formally for the first time.
173. Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35. At the same time as the Church was beginning to fund opposition to abortion reform at the national level, it was fighting reform battles state by state.
174. See James Risen & Judy L. Thomas, Wrath of Angels: The American Abortion War 19-22 (1998).
175. For the Church's efforts to oppose a 1967 reform bill in Virginia, see Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 19.
176. For the Church's efforts to block reform legislation in New York, George Dugan, State's 8 Catholic Bishops Ask Fight on Abortion Bill: Pastoral Letter Read, N.Y. Times, Feb. 13, 1967, at 1.
177. and Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35.
178. For an account of the Church's effort to block passage of New York's repeal statute, Fred C. Shapiro, 'Right to Life' Has a Message for New York State Legislators, N.Y. Times, Aug. 20, 1972, § 6 (Magazine), at 10.
179. Ed Golden, founder of New York's Right to Life group, estimated the Catholic membership of New York Right to Life at eighty-five percent in 1972, Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America (Mary Jo Weaver & R. Scott Appleby eds., 1995). at 38.
180. and historian Michael Cuneo estimates the percentage nationally at "[p]robably upward of 75 per cent, " Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America (Mary Jo Weaver & R. Scott Appleby eds., 1995), at 274.
181. For an account of Catholic opposition to reform in Michigan in 1972, which explores local organization, as well as the support, network, and organization supplied by the NRLC, see Robert N. Karrer, The Formation of Michigan's Anti-Abortion Movement 1967-1974, Mich. Hist. Rev., Spring 1996, at 67.
182. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 77 (describing "swift, fierce, and public opposition" to Humanae Vitae from Catholic "clergy and laity alike").
183. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010). at 76.
184. Humanae Vitae addresses together contraception, sterilization, and abortion as contrary to the sacred life-giving ends of human sexuality. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010). at 77 ("Equally to be condemned... is direct sterilization.... Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation. ").
185. See Nat'l Conference of Catholic Bishops, Human Life in Our Day (1968).
186. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 77, 78-79 (acknowledging that the "position taken by the Holy Father in his encyclical troubled many, " and conceding that the emotions the encyclical provoked were "hardly surprising, " but concluding by urging Catholics to reaffirm "the sanctity of human life" and observing that "[s]tepped-up pressures for moral and legal acceptance of directly procured abortion make necessary pointed reference to this threat to the right to life").
187. Christine Stansell, The Feminist Promise: 1792 To The Present (2010), at 320-21 ("Retreating from a battle over contraception they clearly could not win, American prelates shifted their efforts to upholding the ban on abortion. They were extremely successful, at first pulling in Catholic conservatives but also liberals who ignored the prohibition on contraception yet accepted the teaching that abortion was the destruction of innocent life. ").
188. Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America (Mary Jo Weaver & R. Scott Appleby eds., 1995), at 273 ("In addition to modest funding, the church provided local chapters with meeting facilities, office equipment, and, most important of all, a seemingly endless supply of recruits. Moreover, with their access to both the diocesan press and the Sunday pulpit, local chapters were almost guaranteed a constant flow of free publicity. ").
189. See Timothy A. Byrnes, Catholic Bishops in American Politics 4, 32-33 (1991).
190. See, e.g., New Jersey Catholic Bishops' Letter.
191. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 81, 82-85 ("We speak today as religious leaders, not to our Catholic community of faith and worship alone but to all of our fellow citizens. The question of abortion is a moral problem transcending a particular theological approach. ").
192. J.C. Willke & Barbara Willke, Handbook on Abortion (1971).
193. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 99, 100-01.
194. J.C. Willke & Barbara Willke, Handbook on Abortion (1971).
195. see also Cynthia Gorney, The Dispassion of John C. Willke, Wash. Post Mag., Apr. 22, 1990, at 20 (discussing the trajectory of the Willkes' antiabortion advocacy, beginning in 1970, and their increasing involvement in the "mission" that "gradually consumed" them "until both of them had assumed nearly full time duties, " including Jack Willke's election to the presidency of the NRLC in 1980).
196. For an account of Jack Willke's efforts to block passage of Michigan's reform statute in 1972, Robert N. Karrer, The Formation of Michigan's Anti-Abortion Movement 1967-1974, Mich. Hist. Rev., Spring 1996, at 76.
197. ("Increasingly, [antiabortion advocates] relied on material from Cincinnati activist, Dr. Jack Willke. His Handbook on Abortion, published in the spring of 1971, became the bible for the antiabortion movement for years.
198. Willke's four-page color pamphlet, Life or Death, showing photographs of fetal remains, also became the most widely used tract. "). The NCCB also took pains to express opposition to abortion as grounded in secular as well as denominational authority, invoking "Judaeo-Christian traditions inspired by love for life, and Anglo-Saxon legal traditions protective of life and the person. "
199. Nat'l Conference of Catholic Bishops, Human Life in Our Day (1968), at 79.
200. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 69-90.
201. cf. Lee Epstein & Joseph F. Kobylka, The Supreme Court and Legal Change: Abortion and the Death Penalty 208 (1992) (discussing public perception of the Catholic character of the pro-life movement after Roe).
202. John Dart, Court 'Out-Herods' Herod on Abortions, Archbishop Says, L.A. Times, Jan. 26, 1973, at 8A.
203. William Martin, With God on Our Side: The Rise of the Religious Right in America 196 (1996).
204. See Kevin P. Phillips, The Emerging Republican Majority 81-82, 464-65, 471 (1969).
205. see also James Boyd, Nixon's Southern Strategy: 'It's All in the Charts,' N.Y. Times, May 17, 1970, § 6 (Magazine), at 25 (profiling Phillips).
206. Kevin P. Phillips, The Emerging Republican Majority (1969), at 81-82.
207. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8.
208. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
209. (quoting Phillips's description of his 1972 campaign strategy in his article, How Nixon Will Win).
210. Lawrence T. King, Abortion Makes Strange Bedfellows: GOP and GOD, Commonweal, Oct. 9, 1970, at 37-38.
211. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 113, 113.
212. see also Howard Seelye, Reregistration Push: Protest Packs Wallop, L.A. Times, Sept. 20, 1970, at OC1 (describing the role of the Rev. Michael Collins, "a conservative Catholic fundamentalist, " and other priests in organizing the reregistration effort).
213. Howard Seelye, Reregistration Push: Protest Packs Wallop, L.A. Times, Sept. 20, 1970, at OC1.
214. Lawrence T. King, Abortion Makes Strange Bedfellows: GOP and GOD, Commonweal, Oct. 9, 1970, at 114.
215. Statement About Policy on Abortions at Military Base Hospitals in the United States, 3 Pub. Papers 500 (Apr. 3, 1971).
216. Statement About Policy on Abortions at Military Base Hospitals in the United States, 3 Pub. Papers 500 (Apr. 3, 1971).
217. Statement About Policy on Abortions at Military Base Hospitals in the United States, 3 Pub. Papers 500 (Apr. 3, 1971).
218. See Memorandum from Patrick J. Buchanan to the President (Mar. 24, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4146, 4146-53 (1973).
219. Memorandum from Patrick J. Buchanan to the President (Mar. 24, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. (1973). at 4150.
220. Memorandum from Patrick J. Buchanan to the President (Mar. 24, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. (1973). at 4150. Buchanan advised: "If the President should publicly take his stand against abortion, as offensive to his own moral principles,... then we can force Muskie to make the choice between his tens of millions of Catholic supporters and his liberal friends at the New York Times and the Washington Post. "
221. Memorandum from Patrick J. Buchanan to the President (Mar. 24, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. (1973). at 4150.
222. Memorandum from Patrick J. Buchanan to the President (Mar. 24, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. (1973). at 4150.
223. See Memorandum from "Research" to the Attorney General H.R. Haldeman (Oct. 5, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4197, 4201 (1973) (emphasis omitted).
224. During his first term, President Nixon, influenced by Patrick Moynihan, "became concerned with the social effects of population growth. In 1969 he vowed to expand family planning services for 5 million poor mothers, ordered studies of new birth control methods, and named a Commission on Population Growth and the American Future. " Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy 250-51 (2001). "Nixon's stance on abortion paralleled his thinking on child care: he backed family planning for poor women but opposed abortion as a basic right of females. "
225. Memorandum from "Research" to the Attorney General H.R. Haldeman (Oct. 5, 1971), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. (1973). at 250.
226. For the story of Nixon's shifting position on child care, see Kimberly J. Morgan, A Child of the Sixties: The Great Society, the New Right, and the Politics of Federal Child Care, 13 J. Pol'y Hist. 215, 231-35 (2001), which recounts how conservatives prevailed in late 1971 in persuading Nixon to veto a bill providing federal assistance to child care on a cross-class basis and arranging for Patrick Buchanan to draft the veto message which "portrayed the [child care bill] as a family-weakening measure contrary to fundamental American values. Government policy, Nixon said, should instead 'cement the family in its rightful position as the keystone of our civilization.'"
227. Richard M. Nixon, Statement About the Report of the Commission on Population Growth and the American Future, May 5, 1972.
228. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 210, 211.
229. Letter from President Richard Nixon to Terence Cardinal Cooke (May 16, 1972).
230. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 157, 158.
231. The Cardinal's office released the ostensibly private letter to the media, likely with Nixon's consent, though his staff later claimed otherwise. David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994)., at 546.
232. The Abortion Issue, Time, May 22, 1972, at 23.
233. Robert D. McFadden, President Supports Repeal of State Law on Abortion, N.Y. Times, May 7, 1972, at A1.
234. On Catholic mobilization against abortion in New York in 1972, see Fred C. Shapiro, 'Right to Life' Has a Message for New York State Legislators, N.Y. Times, Aug. 20, 1972, § 6 (Magazine), at 10.
235. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 216.
236. Memorandum from Pat Buchanan to John Mitchell & H.R. Haldeman (Apr. 27, 1972), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4235, 4235 (1973) (annotated "I agree with this-Pass along to our staff-RNC etc. " and signed JM [Jeb Magruder]). The Buchanan memo is dated the same day on which Rowland Evans and Robert Novak published a famous column suggesting that Democrats were apprehensive that McGovern would get the nomination and estrange Catholics, once they discovered that "McGovern is for amnesty, abortion, and legalization of pot.... Once middle America-Catholic middle America, in particular-finds this out, he's dead. "
237. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 215-16 (quoting an anonymous "liberal senator").
238. Phyllis Schlafly's first published attack on the ERA in February of 1972 complained: Women's lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women's libbers are trying to make wives and mothers unhappy with their career, make them feel that they are "second-class citizens" and "abject slaves. " Women's libbers are promoting free sex instead of the "slavery" of marriage. They are promoting Federal "daycare centers" for babies instead of homes. They are promoting abortions instead of families. Phyllis Schlafly, Women's Libbers Do NOT Speak for Us, Phyllis Schlafly Rep., Feb. 1972.
239. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 218, 219.
240. Robert Mason, Richard Nixon and the Quest for a New Majority 155 (2004).
241. Memorandum from Patrick Buchanan (1972).
242. as reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 215, 216. The accompanying memorandum discussed strategies for targeting Catholic audiences with Nixon's message on abortion and other issues of concern to a Catholic demographic.
243. Memorandum from Patrick Buchanan & Ken Khachigian, (June 8, 1972), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4240, 4240-46 (1973).
244. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8.
245. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8.
246. See Kevin P. Phillips, The Emerging Republican Majority 81-82, 464-65, 471 (1969).
247. see also James Boyd, Nixon's Southern Strategy: 'It's All in the Charts,' N.Y. Times, May 17, 1970, § 6 (Magazine), at 25 (profiling Phillips).
248. Kevin P. Phillips, The Emerging Republican Majority (1969), at 81-82.
249. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8.
250. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
251. (quoting Phillips's description of his 1972 campaign strategy in his article, How Nixon Will Win).
252. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
253. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
254. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
255. Kevin Phillips, How Nixon Will Win, N.Y. Times, Aug. 6, 1972, § 6 (Magazine), at 8 (quoting Don Muchmore).
256. Pursuing such themes, Buchanan spearheaded letter-writing campaigns, such as one in Michigan in September of 1972, targeting every newspaper in the state of Michigan, "especially... every Catholic newspaper in the State, " urging Michigan voters, who would vote on an abortion reform referendum on election day, to reject "abortion-on-demand" and reject McGovern, the candidate who supported "unrestricted abortion policies. " Memorandum from Pat Buchanan to Betty Nolan (Sept. 11, 1972), in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4256, 4256-57 (1973).
257. For an account of the campaign in Michigan in 1972, Robert N. Karrer, The Formation of Michigan's Anti-Abortion Movement 1967-1974, Mich. Hist. Rev., Spring 1996, at 67.
258. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 257.
259. For Phyllis Schlafly's first published attack on the ERA in February of 1972, Phyllis Schlafly's first published attack on the ERA in February of 1972 complained: Women's lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women's libbers are trying to make wives and mothers unhappy with their career, make them feel that they are "second-class citizens" and "abject slaves. " Women's libbers are promoting free sex instead of the "slavery" of marriage. They are promoting Federal "daycare centers" for babies instead of homes. They are promoting abortions instead of families. Phyllis Schlafly, Women's Libbers Do NOT Speak for Us, Phyllis Schlafly Rep., Feb. 1972.
260. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 218, 219.
261. Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (2001), at 251 & n.222.
262. The memo likely adverted to the Gallup poll released in August of 1972, which Justice Blackmun had in his Roe v. Wade files.
263. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2.
264. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2. The poll was disseminated widely.
265. See Abortion, Birth Control Reforms Backed in Poll, L.A. Times, Aug. 25, 1972, at 22.
266. George Gallup, Abortion Support Increases Sharply, Hartford Courant, Aug. 25, 1972, at 25.
267. Liberal Abortion Laws Gain Favor, Balt. Sun, Aug. 26, 1972, at A5.
268. For an overview of polling showing increasing popular and professional support for liberalizing access to abortion in the years before Roe, see Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 260-62 (2d ed. 2008).
269. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey 91 (2005).
270. Jack Rosenthal, Survey Finds Majority, in Shift, Now Favors Liberalized Laws, N.Y. Times, Aug. 25, 1972, at 1.
271. See Ctr. For Applied Research in the Apostolate (Cara), Georgetown Univ., Presidential Vote of Catholics: Estimates from Various Sources (2010), available at http://cara.georgetown.edu/Presidential%20Vote%20Only.pdf.
272. See, e.g., David S. Broder, Study Finds Major Democratic Schism, Wash. Post, Sept. 6, 1973, at A2 (citing research by scholars at the University of Michigan finding that "the 1972 election was the first in two decades... where issues cut more deeply than traditional party loyalties" and that Vietnam and social issues (race, not abortion, which "played a relatively small part") were the dividing lines).
273. Timothy A. Byrnes, Issues, Elections, and Political Change: The Case of Abortion, in Do Elections Matter? 101, 112-13 (Benjamin Ginsberg & Alan Stone eds., 3d ed. 1996) (finding that Nixon's 1968 and 1972 campaigns both aimed for broader party realignment and that "[a]bortion was tailor-made for use by political operatives seeking to" exploit white racial and anti-elitist anger "and to use the Republican party as a vehicle for conservative political change").
274. Ctr. For Applied Research in the Apostolate (Cara), Georgetown Univ., Presidential Vote of Catholics: Estimates from Various Sources (2010), available at http://cara.georgetown.edu/Presidential%20Vote%20Only.pdf. at 114 ("Abortion was not particularly powerful as a direct determinant of individual votes. But it was indispensable as a symbolic, rhetorical tool in the Republican party effort to redefine the agenda of U.S. politics and realign the U.S. party system.").
275. Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (2001), at 252.
276. In Gerald Ford's White House, constructing a political strategy around opposition to abortion was far from a priority. The new president's wife, Betty Ford, was an open supporter of abortion rights, as she declared during her first news conference as first lady, on September 4, 1974.
277. Donnie Radcliffe, Pro-Abortion Stand Taken by Mrs. Ford, Wash. Post, Sept. 5, 1974, at A1.
278. Gerald Ford had opposed Roe in Congress but as president was largely silent, speaking out only when pressed by antiabortion groups during the 1976 campaign; as the conservative columnists Rowland Evans and Robert Novak reported from the Republican National Convention in 1976, "a proposed platform plank advocating a constitutional amendment against abortion was whole-heartedly supported by the Ford campaign organization but not by President Ford. " Rowland Evans & Robert Novak, Dodging a Fight over Abortion, Wash. Post, Aug. 13, 1976, at A25.
279. see Daniel K. Williams, God's Own Party: The Making of the Christian Right 129-32 (2010) (discussing the abortion issue in the Presidential election of 1976).
280. Nelson A. Rockefeller, Ford's choice to fill the vice presidential vacancy, was reviled on the Right for a number of reasons, of which his support for abortion as governor of New York was one.
281. See Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 158-60.
282. Memorandum of Assemblywoman Constance E. Cook (1970).
283. David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), at 316-19.
284. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 129 ("At a time when the First Lady, the vice president, and the chair of the Republican National Committee were advocates of abortion rights, many people assumed that the president was as well. ").
285. See Allen Hunter, Virtue with a Vengeance: The Pro-Family Politics of the New Right 161 (1985) (unpublished Ph.D. Dissertation, Brandeis University) (on file with authors).
286. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 1401.
287. Marjorie J. Spruill, Gender and America's Right Turn, in Rightward Bound: Making America Conservative in the 1970S 71, 71 (Bruce J. Schulman & Julian E. Zelizer eds., 2008) (making the case that the International Women's Year (IWY) "contribut[ed] significantly to the rightward turn in American politics as social conservatives began rallying around gender issues").
288. Judy Klemesrud, Equal Rights Plan and Abortion Are Opposed by 15,000 at Rally, N.Y. Times, Nov. 20, 1977, at 32 (describing, on the occasion of the 1977 Houston Convention marking IWY, a counterrally sponsored by the Pro-Family Coalition that "unanimously passed resolutions against abortion, the proposed equal rights amendment and lesbian rights, three issues that will also be debated at the women's conference").
289. Allen Hunter, Virtue with a Vengeance: The Pro-Family Politics of the New Right (1985), at 159-68 (analyzing the "pro-family" rhetoric and practices of the New Right, including the antifeminist mobilization around the IWY). Afterward, Phyllis Schlafly recalled: At the IWY event in Houston, the ERAers, the abortionists, and the lesbians made the decision to march in unison for their common goals. The conference enthusiastically passed what the media called the "hot button" issues: ERA, abortion and abortion funding, and lesbian and gay rights.
290. The IWY Conference doomed ERA because it showed the television audience that ERA and the feminist movement were outside the mainstream of America. ERA never passed anywhere in the post-IWY period. Phyllis Schlafly, A Short History of the E.R.A., Phyllis Schlafly Rep., http://www.eagleforum.org/psr/1986/sept86/psrsep86.html (last visited Dec. 13, 2010).
291. Rosemary Thomson, The Price of Liberty 15 (1978).
292. For more on Thomson's role, see Donald T. Critchlow, Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade 245 (2005).
293. See Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America 133-37 (2010) (describing what the author calls Beverly LaHaye's "holy war" against, in LaHaye's words, "Bella Abzug, Gloria Steinem, and Betty Friedan" and quoting one LeHaye follower as declaring, "It's time now to pick up my skillet and my rolling pin and charge").
294. Beverly Lahaye, Who but a Woman? 25, 27 (1984) (connecting the ERA with abortion, child care, and gay rights).
295. Richard Viguerie's increasing effort to make abortion a central part of the New Right agenda is visible in the growing attention devoted to the subject throughout the 1970s by Conservative Digest, a magazine that he founded in 1975.
296. See Richard A. Viguerie, From the Publisher, Conservative Dig., May 1975, at 1 (inaugural issue). Initially, the magazine all but ignored abortion, with only three explicit references in the first volume, which spanned May to December 1975.
297. In one article, Ronald Reagan praises a family for adopting specialneeds children "[a]t a time when some people think you should be able to terminate a pregnancy with... ease. " Ronald Reagan, The Amazing Debolts, Conservative Dig., Sept. 1975, at 7.
298. One article disapprovingly quotes the First Lady's remarks in support of abortion rights, Speak for Yourself, Mrs. Ford, Conservative Dig., Oct. 1975, at 18, 18-20.
299. and a writer profiles the Cleveland, Ohio National Right to Life Committee, Sally Lockwood, Facing Reality on Abortion, Conservative Dig., Sept. 1975, at 39, 39-40.
300. The absence of antiabortion rhetoric is just as revealing, as in The Best of Ronald Reagan, a series of quotes categorized by political issues. The Best of Ronald Reagan, Conservative Dig., Dec. 1975, at 38, 38-39. By contrast, volume 5 of the magazine, spanning January to December 1979, mentions abortion in almost every issue, usually more than once. The January and February issues alone outstrip the number of references in 1975.
301. See Daniel Dickinson, Pro-Lifers Shock Political Pundits, Conservative Dig., Jan. 1979, at 48.
302. Connaught Marshner, HEW Funds Abortions, Promiscuity, Conservative Dig., Jan. 1979, at 28.
303. Nathan J. Muller, One-Issue Groups Educate Congress, Conservative Dig., Jan. 1979, at 43.
304. For coverage of pro-life politics in the 1979 issues of Conservative Digest.
305. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 168-69.
306. For discussion of the new significance of PACs in the aftermath of Watergate-related campaign finance reform and the role that Viguerie and Weyrich played in experimenting with abortion as a theme for fundraising in the 1978 and 1980 elections. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 168-69.
307. In February 1979, Richard Viguerie's Conservative Digest magazine profiled Paul Brown, who, with his wife, Judy, split with the National Right to Life Committee to create the Right to Life PAC and, later, the Life Amendment PAC and the American Life League. The New Right: A Special Report, Conservative Dig., June 1979, at 10, 16 (crediting Paul Brown with "making the pro-life movement a sophisticated political force, " which by 1978 "had become powerful enough to provide the margin of victory" in state and national races, when "[i]n the years immediately after the Supreme Court's 1973 pro-abortion decision, anti-abortion Americans were, to put it frankly, politically naive").
308. The Pro-Life Movement, Conservative Dig., Feb. 1979, at 6 (interviewing Paul Brown and touching on the importance of single-issue groups to the New Right coalition).
309. The Right Side, Conservative Dig., July 1979, at 31 (noting the founding of the American Life Lobby).
310. The Right Side, Conservative Dig., Apr. 1979, at 28, 29 (listing congressmen and senators targeted by the Life Amendment PAC).
311. Connie Paige, The Right to Lifers: Who They Are, How They Operate, Where They Get Their Money (1983), at 146-51 (describing Judy Brown and Paul Brown's collaboration with Viguerie and Paul Weyrich in establishing the Life Amendment PAC and the American Life League).
312. Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010). at 198-217 (describing Paul Weyrich's role in forming Americans for Life, a campaign finance organization with a project called "Stop the Babykillers, " whose "purpose... was to kick off the New Right's six-year plan to capture as many congressional seats as possible for conservatives by defeating Senators George McGovern, Frank Church, Birch Bayh and John Culver as well as other big-name liberals").
313. The February 1979 Conservative Digest features a cartoon depicting a woman beating "politicians" over the head with a rolling pin labeled "Right-to-Life Movement. "
314. Cartoon, Conservative Dig., Feb. 1979, at 24. In March, an article notes that "[t]he true litmus test [of loyalty] seems to be abortion" for a coterie of New Right politicians.
315. Sanford J. Ungar, New Right Senators: They're Getting Results, Conservative Dig., Mar. 1979, at 26, 27. Viguerie and other movement strategists were frank about using abortion, among other issues of social rather than economic concern, as a way of attracting additional followers for whom the economic issues that motivated other members of the New Right held little appeal: "The New Right is looking for issues that people care about, and social issues, at least for the present, fit the bill. "
316. The New Right: A Special Report, Conservative Dig., June 1979, at 10. Paul Weyrich put the strategic tradeoff succinctly: "Yes... [social issues are] emotional issues, but that's better than talking about capital formation. "
317. Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America 133-37 (2010). A cover story on the Moral Majority attributes the politicization of conservative Protestants primarily to the IRS, with President of the National Christian Action Coalition Bob Billings describing the IRS Commissioner as "ha[ving] done more to bring Christians together than any man since the Apostle Paul"; the same story groups abortion in a single paragraph with "attacks on the family. "
318. Mobilizing the Moral Majority, Conservative Dig., Aug. 1979, at 14.
319. For Viguerie's reports on efforts in 1979 to organize antiabortion advocates into an effective political force, see A New Conscience of the Pro-Life Movement, Conservative Dig., Dec. 1979, at 18 (profiling a young pro-life activist).
320. Pro-Lifers Train for 1980 Elections, Conservative Dig., July 1979, at 30 (describing the "first political action conference for anti-abortion activists").
321. and The Right Side, Conservative Dig., Oct. 1979, at 16 (describing a star-studded National Pro-Life PAC training session). There are striking parallels in the ways in which the New Right cultivated ties with the single-issue groups opposing abortion and supporting gun rights in this period, working in each case to encourage more conservative expression of movement politics and to bridge single-issue groups into a politically disciplined conservative coalition capable of influencing electoral outcomes.
322. See Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 214 n.106 (2008) (discussing parallels between the cases of abortion and guns).
323. Chief strategists of the New Right Paul Weyrich, raised Catholic and a convert to Greek Orthodoxy, and Richard Viguerie, a Catholic, were likely attuned to the abortion issue through the Church. See Dan Gilgoff, How Paul Weyrich Founded the Christian Right, U.S. News & World Rep. (Dec. 18, 2008), http://politics.usnews.com/news/blogs/god-and-country/2008/12/18/how-paul-weyrich-founded-the-christian-right.html.
324. Richard A. Viguerie, Attention, Catholics: Given to ACORN Lately?, Richard Viguerie's Conservative Hq, http://www.conservativehq.com/node/286 (last visited Dec. 9, 2010).
325. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 167 ("Some of the most prominent New Right activists came from the traditionally Democratic working-class Catholic families that Republican strategists had sought to attract through cultural politics. ").
326. For a review of positions on abortion advanced by religious denominations in the period before Roe, see Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 69-90.
327. In the period before Roe, conservative protestant evangelicals in the South did not take a stand against abortion in the absolute terms that Catholics did, nor did they take such a stance in the immediate aftermath of the decision. In 1974, the Southern Baptist Convention reaffirmed its pre-Roe 1971 statement on abortion by staking "a middle ground between the extreme of abortion on demand and the opposite extreme of all abortion as murder. " Southern Baptist Convention, Resolution on Abortion and Sanctity of Human Life (June 1974), available at http://www.sbc.net/resolutions/amResolution.asp?ID=14.
328. see Paul L. Sadler, The Abortion Issue Within the Southern Baptist Convention, 1969-1988, at iv-v (Aug. 1991) (unpublished Ph.D. dissertation, Baylor University) (on file with authors) (analyzing the rightward shift of the Southern Baptist Convention's position on abortion during the late 1970s and 1980s and noting that a "fundamentalist faction that gained control of Convention machinery used the abortion issue as one means of galvanizing support for their cause" and contrasting this to the "middle ground" position the denomination took in the mid-1970s).
329. Dan Gilgoff, How Paul Weyrich Founded the Christian Right, U.S. News & World Rep. (Dec. 18, 2008), http://politics.usnews.com/news/blogs/god-and-country/2008/12/18/how-paul-weyrich-founded-the-christian-right.html. at v (noting that "[b]y 1988 an extreme anti-abortion position became the 'official position' of the Southern Baptist Convention"). It was in part because the Southern Baptists viewed opposition to abortion as a Catholic position that the group was reticent to oppose abortion categorically or to campaign against the practice: In the pre-Roe period, SBC leaders and clergy shunned discussion of abortion, dismissing it as a "Catholic issue." Following its legalization, they adopted a moderate pro-life stance. Differentiating itself from the "Roman Catholic bishops'... campaign of heavy institutional involvement to enact their dogma into law, " the SBC endorsed a position throughout the 1970's that "reflected a middle ground between the extreme of abortion on demand and the opposite extreme of all abortion as murder." At its 1980 convention, the SBC endorsed a constitutional amendment that would prohibit abortion except in cases where the mother's life was in danger, but it was not until the late 1980's, following the ideological shift within the SBC, that it actively began, through its Christian Life Commission (CLC), to pursue this objective as part of a public policy campaign.
330. Michele Dillon, Religion and Culture in Tension: The Abortion Discourses of the U.S. Catholic Bishops and the Southern Baptist Convention, 5 Religion & Am. Culture: J. Interpretation 159, 161 (1995) (footnotes omitted). Averse to joining forces with the Catholic Church, Southern Baptists did not enter politics against abortion until years after Roe, although there were evangelicals in the North who spoke out in opposition to the decision.
331. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 111-20.
332. Dan Gilgoff, How Paul Weyrich Founded the Christian Right, U.S. News & World Rep. (Dec. 18, 2008), http://politics.usnews.com/news/blogs/god-and-country/2008/12/18/how-paul-weyrich-founded-the-christian-right.html. at 115 (chronicling the resistance of the Southern Baptist Convention to join the antiabortion cause in part because Southern Baptists "were suspicious of a Catholic cause").
333. Dan Gilgoff, How Paul Weyrich Founded the Christian Right, U.S. News & World Rep. (Dec. 18, 2008), http://politics.usnews.com/news/blogs/god-and-country/2008/12/18/how-paul-weyrich-founded-the-christian-right.html. at 119.
334. ("While Southern Baptists remained on the sidelines, northern evangelicals proved somewhat more willing to view Roe v. Wade as an assault on the family and the nation's Christian identity. ").
335. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. (2007), at 15 (quoting participants who described the inability of early evangelical opponents of abortion to mobilize other evangelicals to enter politics on what was viewed as a Catholic issue).
336. One reason that Gene Burns gives for the success of ALI reform statutes in the South was the relatively low numbers of Catholics in the region. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 192 ("In the South, there was neither a strong abortion rights movement nor a strong Catholic prolife movement: Southern evangelicals would about a decade later be important in the prolife movement, but at the time they simply were not very involved, taking little note of the issue. ").
337. See, e.g., Bob Fort, Abortions in Georgia To Rise, but..., Atlanta Const., Jan. 23, 1973, at 15A ("The Supreme Court clearly did not go as far as many might have anticipated. Monday's decision certainly was not that of an ultra-liberal court, and the longstanding traditions of medical ethics, as well as basic human ethics, were clearly underscored and reemphasized. ").
338. Editorial, The Court Decision on Abortion, Charlotte Observer, Jan. 29, 1973, at 12A ("Our own view is that the court has very judiciously attempted to separate the secular from the religious-and that is impossible. The issues involved include the question of when life begins. Even the Church has difficulty answering that one, and the State can be no better arbiter. Still, some constitutional guidelines had to be established.... The Supreme Court's decision will, at least, bring greater uniformity to the states' approaches. ").
339. Joseph Kraft, Op-Ed., 'Conservative' on Abortion, Wash. Post, Jan. 25, 1973, at A15 ("What this means is that the present Supreme Court, in a test between the rights of the individual and the power of the state, comes down in a truly decisive fashion, on the side of the individual. Such a choice is, of course, completely true to the principles of conservatism in this country. ").
340. E.g., John Dart, Court 'Out-Herods' Herod on Abortions, Archbishop Says, L.A. Times, Jan. 26, 1973, at 8A.
341. Marjorie Hyer, Cardinal O'Boyle Asks Pastors To Preach Against Abortion Rule, Wash. Post, Jan. 25, 1973, at B1.
342. Lawrence Van Gelder, Cardinals Shocked-Reaction Mixed, N.Y. Times, Jan. 23, 1973, at A1.
343. One leading southern newspaper made clear in an editorial that religion was not an appropriate basis for evaluating the ruling, which the editorial called "realistic and appropriate": "[T]he State is not a church. It is the imperfect servant of the imperfect people, not the reflection of the glory of God. " Editorial, Abortion Ruling, Atlanta Const., Jan. 24, 1973, at 4A.
344. Opponents of Abortion March in Cincinnati, Hartford Courant, June 25, 1979, at 2.
345. William Martin, With God on Our Side: The Rise of the Religious Right in America 196 (1996).
346. (quoting a "Special Report on Secular Humanism vs. Christianity" that appeared in Christian Harvest Times, a Christian magazine, in July 1980).
347. Francis Schaeffer helped mobilize conservative Protestant evangelicals with a critique of "secular humanism" in contemporary culture, and his son Frank helped tie the critique of secular humanism to the liberalization of abortion law. The Schaeffers made two films, How Should We Then Live? and Whatever Happened to the Human Race? (the latter filmed with the financial support of the Catholic Church), which helped popularize the critique of abortion to the Protestant evangelical community.
348. See Frank Schaeffer, Crazy for God: How I Grew Up as One of the Elect, Helped Found the Religious Right, and Lived to Take All (or Almost All) of It Back 265-67, 271-73, 283-84 (2007). Francis Schaeffer was initially reticent to enter politics against abortion because he associated antiabortion politics with the Catholic Church.
349. Opponents of Abortion March in Cincinnati, Hartford Courant, June 25, 1979. at 266, an association that the Church itself was working to diffuse.
350. Opponents of Abortion March in Cincinnati, Hartford Courant, June 25, 1979. at 283-84.
351. See also Wyman Richardson, Francis Schaeffer and the Pro-Life Movement, http://www.walkingtogetherministries.org/FullView/tabid/64/ArticleID/32/CBModuleId/401/Default.aspx (last visited Dec. 13, 2010) (describing Francis Schaeffer's role in leading the development of antiabortion activism in Protestant evangelical communities).
352. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 137-56 (describing the Schaeffers' campaign against secular humanism as it joined opposition to feminism, gay rights, and abortion).
353. Opponents of Abortion March in Cincinnati, Hartford Courant, June 25, 1979. at 156 (observing that "if evangelicals had not connected abortion to the ERA, feminism, and cultural liberalism, they might not have shown much interest in waging a campaign against it").
354. For an account of the role that Congressman Jack Kemp played in supporting the work of Francis and Frank Schaeffer in the years just before and during the beginning of the Reagan Administration, Frank Schaeffer, Crazy for God: How I Grew Up as One of the Elect, Helped Found the Religious Right, and Lived to Take All (or Almost All) of It Back (2007), at 284-86.
355. (discussing a meeting of the Republican Club at which the Shaeffers showed Whatever Happened to the Human Race? to a meeting of "more than fifty congressmen and about twenty senators... from Henry Hyde to Bob Dole").
356. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. (2007), at 421 & n.225 (describing Falwell's gradual engagement with the abortion question in the late 1970s and early 1980s).
357. Opponents of Abortion March in Cincinnati, Hartford Courant, June 25, 1979, at 2.
358. See Michele Mckeegan, Abortion Politics: Mutiny in the Ranks of the Right 20-21 (1992) (recounting that Republican strategists Richard Viguerie and Paul Weyrich met with Reverend Jerry Falwell in 1979 and encouraged him to join the New Right coalition).
359. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 171, 174-75 (describing the work of Ed McAteer, Howard Phillips, Paul Weyrich, Robert Billings, and Richard Viguerie in drawing Falwell into electoral politics and in forming the "Moral Majority" organization "to register Christian voters in the hope of capturing Congress and the White House").
360. In retelling the story of the formation of the Moral Majority, Weyrich has repeatedly emphasized that the principal motivating issue was not abortion but rather the attempt by the IRS in the late 1970s to deny tax-exempt status to Christian schools that failed to comply with racial nondiscrimination mandates. William Martin, With God on Our Side: The Rise of the Religious Right in America (1996), at 173 ("Paul Weyrich emphatically asserted that 'what galvanized the Christian community was not abortion, school prayer, or the ERA. I am living witness to that because I was trying to get those people interested in those issues and I utterly failed. What changed their mind was Jimmy Carter's intervention against the Christian schools, trying to deny them tax-exempt status on the basis of so-called de facto segregation.'... [T]he IRS threat 'enraged the Christian community and they looked upon it as interference from government, and suddenly it dawned on them that they were not going to be able to be left alone to teach their children as they pleased.... That was what brought those people into the political process. It was not the other things.'").
361. Paul Weyrich, Comments, in No Longer Exiles: The Religious New Right in American Politics 25, 26 (Michael Cromartie ed., 1993) ("Certainly no Christian was going to have an abortion, and they could teach that to their children. What caused the movement to surface was the federal government's moves against Christian schools. This absolutely shattered the Christian community's notion that Christians could isolate themselves inside their own institutions and teach what they pleased. The realization that they could not then linked up with the long-held conservative view that government is too powerful and intrusive, and this linkage was what made evangelicals active. It wasn't the abortion issue; that wasn't sufficient. ").
362. see also Randall Balmer, Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical's Lament 16 (2006) ("Ed Dobson, Falwell's erstwhile associate, corroborated Weyrich's account during the ensuing discussion. 'The Religious New Right did not start because of a concern about abortion,' Dobson said. 'I sat in the non-smoke-filled back room with the Moral Majority, and I frankly do not remember abortion ever being mentioned as a reason why we ought to do something.'").
363. For another account of the role that the IRS ruling conditioning the tax-exempt status of private schools on compliance with antidiscrimination mandates played in the mobilization of the religious right, see Joseph Crespino, Civil Rights and the Religious Right, in Rightward Bound: Making America Conservative in the 1970S, at 90, 90-91 (Bruce J. Schulman & Julian E. Zelizer eds., 2008) (recounting Richard Viguerie's statement that the IRS decision "kicked the sleeping dog [and] was the spark that ignited the religious right's involvement in real politics").
364. Michele Mckeegan, Abortion Politics: Mutiny in the Ranks of the Right (1992), at 20-21.
365. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 169 (quoting Weyrich and Viguerie on the potential of the abortion issue to attract Catholic Democratic and politically liberal voters into alliance with conservatives and into commitment to other conservative causes).
366. Lydia Saad, Republicans', Dems' Abortion Views Grow More Polarized. Ronald Reagan was an architect of this new strategy.
367. Thomas Byrne Edsall & Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics 141 (1991). (addressing Conservative Political Action Conference in 1977).
368. Michele Mckeegan, Abortion Politics: Mutiny in the Ranks of the Right (1992), at 21-27.
369. For discussion of the coalition, see Frances Johnson Perry, Convergence of Support for Issues by the Antiabortion Movement and the Religious New Right: An Examination of Social Movement Newsletters 103-12 (Dec. 1985) (unpublished Ph.D. dissertation, Bowling Green State University) (on file with authors), which examines the interactions and tensions between the NRLC and the Moral Majority and finds that in contrast to the author's hypothesis, the most important link between the two groups is not abortion but rather support for the same candidates.
370. For ways that the "social issues" agenda linked sex and race, Joseph Crespino, Civil Rights and the Religious Right, in Rightward Bound: Making America Conservative in the 1970S, at 90, 90-91 (Bruce J. Schulman & Julian E. Zelizer eds., 2008), which recounts the role that concern about preserving segregated Christian schools played in motivating leaders of the religious right to enter politics in opposition to abortion.
371. Jeffrey Rosen, The Day After Roe, The Atlantic, June 2006, at 56, 56-57.
372. Richard A. Viguerie, From the Publisher, Conservative Dig., May 1975, at 1. and accompanying text, which discuss how the "social issues" agenda of the New Right related concerns of race and sex.
373. See also Richard J. Meagher, Backlash: Race, Sexuality, and American Conservatism, 41 Polity 256 (2009).
374. (reviewing Joseph E. Lowndes, Race and the Southern Origins of Modern Conservatism: From the New Deal to the New Right (2008).
375. Rightward Bound: Making America Conservative in the 1970S (Bruce J. Schulman & Julian E. Zelizer eds., 2008).
376. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at 209.
377. See Lydia Saad, Republicans', Dems' Abortion Views Grow More Polarized.
378. Gallup (Mar. 8, 2010), http://www.gallup.com/poll/126374/republicans-dems-abortion-views-grow-polarized.aspx?version=print. According to the Gallup Poll discussed by Saad, 12% of Republicans say that abortion should be legal "under any circumstances, " compared with 31% of Democrats. When the question is whether abortion should be "illegal in all circumstances, " the partisan polarity is almost exactly reversed: 33% of Republicans agree, compared with 12% of Democrats. Note that after 1972, Gallup changed the way in which it posed the question. Whereas in 1972 Gallup asked whether respondents thought that "the decision to have an abortion should be made solely by a woman and her physician, " in 1975 Gallup asked whether "abortions should be legal 'under any circumstances,' legal 'only under certain circumstances,' or 'illegal in all circumstances.'"
379. George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at 209.
380. In its 1976 platform, the Republican Party's critique of the Supreme Court was mild and appeared to acknowledge that Republicans were not all of the same mind on abortion: "The Republican Party favors a continuance of the public dialogue on abortion and supports the efforts of those who seek enactment of a constitutional amendment to restore protection of the right to life for unborn children. " Republican Nat'l Comm., Republican Party Platform of 1976 (1976), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843. The 1980 platform continued to ascribe some value to debate while also endorsing explicitly antiabortion positions: While we recognize differing views on this question among Americans in general-and in our own Party-we affirm our support of a constitutional amendment to restore protection of the right to life for unborn children. We also support the Congressional efforts to restrict the use of taxpayers' dollars for abortion.... We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.
381. Republican Nat'l Comm., Republican Party Platform of 1980 (1980).
382. [hereinafter Republican Party Platform of 1980], available at http://www.presidency.ucsb.edu/ws/index.php?pid=25844. In 1984, the platform proclaimed that "[t]he unborn child has a fundamental individual right to life which cannot be infringed."
383. Republican Nat'l Comm., Republican Party Platform of 1984 (1984), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25845. The Democrats also began mildly and quickly moving in the opposite direction as the party gradually aligned itself with support for abortion rights. The 1976 platform said: "We fully recognize the religious and ethical nature of the concerns which many Americans have on the subject of abortion. We feel, however, that it is undesirable to attempt to amend the U.S. Constitution to overturn the Supreme Court decision in this area."
384. Democratic Nat'l Comm., Democratic Party Platform of 1976 (1976), available at http://www.presidency.ucsb.edu/ws/index/php?pid=29606. The 1980 platform declared that "[t]he Democratic Party supports the 1973 Supreme Court decision on abortion rights as the law of the land and opposes any constitutional amendment to restrict or overturn that decision."
385. Democratic Nat'l Comm., Democratic Party Platform of 1980 (1980), available at http://www.presidency.ucsb.edu/ws/index/php?pid=29607.
386. see also Christina Wolbrecht, The Politics of Women's Rights: Parties, Positions, and Change 23-72 (2000) (describing party platforms, including positions on abortion).
387. Richard Viguerie's increasing effort to make abortion a central part of the New Right agenda is visible in the growing attention devoted to the subject throughout the 1970s by Conservative Digest, a magazine that he founded in 1975.
388. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 168-69.
389. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. 718, 723 (1997).
390. By the early 1990s, Democratic members of Congress were voting the abortion-rights position eighty percent of the time, while Republicans took the right-to-life position by the same margin. Richard Viguerie's increasing effort to make abortion a central part of the New Right agenda is visible in the growing attention devoted to the subject throughout the 1970s by Conservative Digest, a magazine that he founded in 1975. at 724, 725 fig.2.
391. The appendix to the Adams article includes dozens of abortion-related votes during the period from 1973 to 1994. Richard Viguerie's increasing effort to make abortion a central part of the New Right agenda is visible in the growing attention devoted to the subject throughout the 1970s by Conservative Digest, a magazine that he founded in 1975. app. at 736 (listing votes by bill number).
392. After Roe, opponents of abortion raised the issue in Congress on a variety of grounds, including constitutional amendments, funding, and other issues. For example, various versions of a proposed constitutional amendment to overturn Roe have been introduced regularly in Congress. See Human Life Amendment Highlights, United States Congress (1973-2003), Nat'l Comm. For a Human Life Amendment, http://www.nchla.org/datasource/idocuments/HLAhghlts.pdf (last visited Jan. 18, 2011). The congressional debate over federal funding of abortions through the Medicaid program also began early, with frequent votes.
393. See Public Funding for Abortion: Medicaid and the Hyde Amendment, Nat'l Abortion Fed'n (2006), http://www.prochoice.org/pubs_research/publications/downloads/about_abortion/public_funding.pdf.
394. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. (1997), at 730-31. The GSS asks respondents whether they would support abortion as a legal option for a woman under any of six circumstances: "(a) If there is a strong chance of a serious defect in the baby? (b) If she is married and does not want any more children? (c) If the woman's own health is seriously endangered by the pregnancy? (d) If the family has a very low income and cannot afford any more children? (e) If she became pregnant as a result of rape? (f) If she is not married and does not want to marry the man?"
395. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. (1997) at 728 n.8.
396. Lydia Saad, Republicans', Dems' Abortion Views Grow More Polarized. In Gallup polls from 1975 until 1988, Democrats and Republicans gave identical answers, within the margin of sampling error, to the question of whether abortion should be legal under any circumstances. In 1988, 23% of each group answered "yes. " Only after that did the parties diverge on the question, with Democratic support rising somewhat erratically over the next twenty years while Republican support fell steadily and sharply. Even in 2009, answers by Democrats and Republicans to the question of whether abortion should be legal "under certain circumstances" were statistically identical at slightly over 50%.
397. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. (1997), at 730-31.
398. cf. Samantha Luks & Michael Salamone, Abortion, in Public Opinion and Constitutional Controversy 80, 98-99 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) ("After 1985, attitudes diverged, with Republicans (and to a lesser extent, Independents) becoming increasingly opposed to abortion, while Democrats became somewhat more supportive of abortion. ").
399. Paul Freedman, Framing the Abortion Debate: Public Opinion and the Manipulation of Ambivalence 67 (1999) (unpublished Ph.D. dissertation, University of Michigan) (on file with authors).
400. Paul Freedman, Framing the Abortion Debate: Public Opinion and the Manipulation of Ambivalence. at 68.
401. One study concluded that the parties' positions did not diverge in response to voter preferences-rejecting the hypothesis that "the parties were pulled apart by the positions of their voters" and suggesting that "[i]t seems likely that the party positions have diverged as the parties catered to a subset of political activists organized into interest groups. " Elizabeth Adell Cook, Ted G. Jelen & Clyde Wilcox, Between Two Absolutes: Public Opinion and the Politics of Abortion 166, 170 (1992) (correlating attitudes on abortion with voting patterns during the 1970s and 1980s using data from the American National Election Studies). In his study of party realignment on abortion, Greg Adams also reads the data as suggesting that party leaders adopted their current positions on abortion in advance of their members.
402. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. (1997), at 734-35. Adams associates his findings with the "issue evolution model, " finding that "[t]he process unfolds gradually, and causality appears to run from elites to masses, rather than from masses to elites. "
403. Paul Freedman, Framing the Abortion Debate: Public Opinion and the Manipulation of Ambivalence. at 718.
404. For more on the general concept of issue evolution, see Edward G. Carmines & James A. Stimson, Issue Evolution: Race and the Transformation of American Politics (1989).
405. For example, Cynthia Gorney attributes nationalization of the right-to-life movement to the Roe decision rather than the efforts of the Catholic Church that began in 1967, almost six years before the decision. Compare Cynthia Gorney, Imagine a Nation Without Roe v. Wade, N.Y. Times, Feb. 27, 2005, at WK5 ("Indeed, Roe created the national right-to-life movement, forging a powerful instant alliance among what had been scores of scattered local opposition groups. ").
406. Elizabeth Adell Cook, Ted G. Jelen & Clyde Wilcox, Between Two Absolutes: Public Opinion and the Politics of Abortion 166, 170 (1992) (showing that Catholic opposition to decriminalizing abortion was highly motivated and nationally organized before the Supreme Court ruled).
407. Ken I. Kersch, Justice Breyer's Mand[a]rin Liberty, 73 U. Chi. L. Rev. 759, 797 (2006) (reviewing Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).
408. Benjamin Wittes, Letting Go of Roe, The Atlantic, Jan./Feb. 2005, at 48, 51.
409. Cass R. Sunstein, Three Civil Rights Fallacies, 79 Calif. L. Rev. 751, 766 (1991).
410. see also Michael J. Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 Fordham L. Rev. 1739, 1751 (1997).
411. (describing the "conventional understanding of Roe v. Wade" as the notion that, "far from reconciling abortion opponents to a woman's fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist").
412. Sanford Levinson, Should Liberals Stop Defending Roe?.
413. Sanford Levinson and Jack M. Balkin Debate, Legal Affairs (Nov. 28, 2005), www.legalaffairs.org/webexclusive/debateclub_ayotte1205.msp. Larry Bartels offers an analysis of election returns that disputes this common view, contending that it better describes developments in the South and among better-educated white voters.
414. Larry M. Bartels, What's the Matter with What's the Matter with Kansas?, 1 Q. J. Pol. Sci. 201, 201 (2006).
415. David Brooks, Op-Ed., Roe's Birth, and Death, N.Y. Times, Apr. 21, 2005, at A23.
416. Robert P. George, Op-Ed., Gay Marriage, Democracy, and the Courts, Wall St. J., Aug. 3, 2009, at A11.
417. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 995 (1992) (Scalia, J., concurring in part and dissenting in part) ("Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve.... Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. "); id. (asserting that before Roe, "[n]ational politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress").
418. It is also commonly asserted that the Court caused conflict because it rendered a decision that diverged from popular opinion. Jeffrey Rosen, for example, contrasts Roe with Brown, which he asserts "was supported by more than half of the country when it was handed down... [while] Roe v. Wade was an entirely different matter. The Court's decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times that the Court leaped ahead of a national consensus. "
419. Jeffrey Rosen, The Day After Roe, The Atlantic, June 2006, at 56, 56-57.
420. Rosen also contends that the Court could have avoided backlash if only it had limited its holding to the termination of early pregnancies. Jeffrey Rosen, The Supreme Court: Judicial Temperament and the Democratic Ideal, 47 Washburn L.J. 1, 8 (2007) ("The parts of Roe that provoked a backlash were those that called into question later term restrictions that most Americans support. "). Historical evidence does not suggest that a more temporally limited abortion right would have been acceptable to the antiabortion movement at the time of Roe. The fervent minority who entered politics to work against abortion rights before and after Roe sought criminalization and were not willing to settle for less. To those who believe that abortion is murder, there is no middle ground; it makes no difference whether a judicial or legislative decision permits abortion up to twelve weeks' gestation or twenty. That is why the Catholic Church began to organize at the national level to block abortion reform when the only reform on offer was the ALI therapeutic legislation.
421. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 177 tbl.5.1.
422. Michael W. Cuneo, Life Battles: The Rise of Catholic Militancy Within the American Pro-Life Movement, in Being Right: Conservative Catholics in America 270, 273 (Mary Jo Weaver & R. Scott Appleby eds., 1995)
423. see also Eugene Quay, Justifiable Abortion-Medical and Legal Foundations, 49 GEO. L.J. 173, 173 (1960) (attacking, from a Catholic perspective, the abortion provisions of the proposed Model Penal Code, recently tentatively approved by the ALI, and describing the proposal as "a violent departure from all existing laws").
424. Thomas Frank, What's the Matter with Kansas: How Conservatives Won the Heart of America 199 (2004).
425. See William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279, 1312 (2005) ("Roe essentially declared a winner in one of the most difficult and divisive public law debates of American history. Don't bother going to state legislatures to reverse that decision. Don't bother trying to persuade your neighbors (unless your neighbor is Justice Powell). ").
426. Michael Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 Fordham L. Rev. 1739, 1751 (1997).
427. (describing the "conventional understanding of Roe v. Wade" as being that, "far from reconciling abortion opponents to a woman's fundamental right to terminate her pregnancy, the decision actually spawned a right-to-life opposition which did not previously exist").
428. Transcript of Record at 3095, Perry v. Schwarzenegger, No. C 09-2292-VRW (N.D. Cal. June 16, 2010). Mr. Olson replied, "I think the case that you're referring to has to do with abortion, " to which Judge Walker responded: "It does indeed. "
429. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. (2005). 167.
430. David Brooks, Op-Ed., Roe's Birth, and Death, N.Y. Times, Apr. 21, 2005, at A23. ("When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate. Instead, Blackmun and his concurring colleagues invented a right to abortion.... ").
431. Thomas Frank, What's the Matter with Kansas: How Conservatives Won the Heart of America (2004), at 121 (invoking "the great abortion controversy, which mobilizes millions but which cannot be put to rest without a Supreme Court decision overturning Roe v. Wade").
432. Critics of Roe frequently assert that Roe disrupted a process of state-by-state legislative compromise on abortion that would have produced general public acceptance of laws liberalizing access to abortion. The case is very far from clear. Liberalization efforts seem to have stalled after 1970.
433. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 215
434. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005).
435. Jeffrey Rosen, The Day After Roe, The Atlantic, June 2006, at 56, 56-57
436. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 215
437. For scholars of the abortion conflict before us who have asked questions of this kind, Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005).
438. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005)
439. Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35 ("The action on abortion was proposed by the Most Rev. Walter W. Curtis, Bishop of Bridgeport, who stated that the number of states in which there are campaigns to liberalize laws against abortion has grown from 12 last September to 31 at the present time. ").
440. For an account of the Catholic Church's decision to separate the National Right to Life Committee from official connection to the Church in the immediate aftermath of the Roe decision, Connie Paige, The Right to Lifers: Who They Are, How They Operate, Where They Get Their Money (1983), at 57, 62-63, which describes that separation as well as a 1974 lawsuit challenging "both the USCC and the National Right to Life Committee for violating the rules prohibiting political activities by non-profit organizations. "
441. As one of us has observed: Countermobilization is likely to occur only as movement claims begin to elicit public response. Utopians and cranks can make all the claims on a constitutional tradition they want; but they are by definition marginal. On the other hand, when a movement advances transformative claims about constitutional meaning that are sufficiently persuasive that they are candidates for official ratification, movement advocacy often prompts the organization of a counter-movement dedicated to defending the status quo. At just the point that a movement for social change begins to elicit public response, it is likely also to elicit this energetic defense of status quo, which, since the filibuster over the 1964 Civil Rights Act, has been referred to as "backlash. " Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 1362-63 (footnotes omitted).
442. By the early 1970s, "abortion had become a public and controversial enough concern that it had become increasingly difficult to pass legislative initiatives. " Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 218.
443. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States 227-28 (2005). State-by-state efforts to liberalize abortion law met a much larger and more organized opposition following the 1970 "high point" of successful reform legislation.
444. See Abortion Politics in American States 4 (Mary C. Segers & Timothy A. Byrnes eds., 1995). In the years immediately after decriminalization in New York, "public opinion polls showed better than 60 percent popular support for the 1970 law, but the intensity and commitment of abortion opponents had more than offset the majority sentiment. "
445. David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994), at 546-47. Abortion law liberalization in New York led to a response from the Catholic Church hierarchy that "helped stimulate a very politically influential right to life upsurge all across the country.... "
446. David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. (1999), at 841. This pattern was followed elsewhere as groups supported by the Catholic Church displayed organization and motivation that overwhelmed popular support for change. Robert Karrer describes the local response to a proposed reform measure in Michigan that received national attention and was seen as a bellwether for the fate of the state-by-state reform effort.
447. Robert N. Karrer, The Formation of Michigan's Anti-Abortion Movement 1967-1974, Mich. Hist. Rev., Spring 1996, at 67. Early in 1970, "the opposition consisted of the Michigan Catholic Conference and a handful of anti-abortion physicians, ministers, and lawyers who recruited ordinary citizens to speak out against the proposed bill in public hearings across the state. "
448. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 75. Within two years, Michigan opponents formed organizations, found local and national allies, and, by the spring of 1972, were able to hire an advertising agency to spend $250,000 for radio and television advertising.
449. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 85-87. Opponents took out full-page newspaper ads, set up booths at county fairs, and effectively used preexisting religious networks.
450. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 88, 94. Legislative reform "failed because antiabortionists were more organized, used more sophisticated advertising, and ably articulated the moral issue" in a way that abortion reform advocates were not prepared to match.
451. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 95.
452. For an account of the role of the Catholic Church in blocking legislative reform, Christine Stansell, The Feminist Promise: 1792 To The Present 323 (2010), noting that [i]n every state where there was a significant Catholic presence, the hierarchy instituted a parish-by-parish effort to block reform bills.... But despite the huge resources the Catholic Church had at its disposal, there was an insoluble problem: Its influence stopped short of federal appeals courts, and the courts were issuing sympathetic decisions on abortion cases with increasing frequency.
453. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev (2006), at 321.
454. Gene Burns, The Moral Veto: Framing Contraception, Abortion, and Cultural Pluralism in the United States (2005), at 215
455. Robert M. Byrn, Abortion in Perspective, 5 Duq. L. Rev. 125 (1966)
456. Edward B. Fiske, Bishops To Press Abortion Battle: Plan a Campaign To Defeat New Liberal State Laws, N.Y. Times, Apr. 14, 1967, at 35 (describing the Church's role in opposing abortion reform in a variety of states).
457. Opinion polls offer an important window into political developments, even if opinion polls supply no information about who enters politics in order to vindicate their views, who has the resources to persuade others, or how issues are bundled or presented. In this case, it is striking that polling data from the period just before and after the Roe decision seem to show rising public support for liberalizing access to abortion. Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (2001), at 251 & n.222.
458. Dividing the Democrats, Memorandum from "Research" to the Att'y Gen. H.R. Haldeman 5 (Oct. 5, 1971).
459. in Hearings Before the S. Select Comm. on Presidential Campaign Activities, 93d Cong. 4197, 4201 (1973) (emphasis omitted). See generally Section II.B.
460. Dividing the Democrats, Memorandum from "Research" to the Att'y Gen. H.R. Haldeman 5 (Oct. 5, 1971).
461. President Nixon appointed a commission, chaired by John D. Rockefeller III, to report on population growth and the American future. Rockefeller Commission Report.
462. reprinted in Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 201.
463. Feminist writer Germaine Greer covered the convention for Harper's Magazine. Germaine Greer, McGovern, The Big Tease, Harper's Mag., Oct. 1972, at 56.
464. She related her dismay at what she called "the railroading of the abortion issue" by the McGovern campaign, as well as at the way in which Gloria Steinem and other feminist leaders allowed the campaign to marginalize the National Women's Political Caucus. Dividing the Democrats, Memorandum from "Research" to the Att'y Gen. H.R. Haldeman (Oct. 5, 1971). at 66.
465. Though the 1972 Democratic Platform included a substantial section on the "Rights of Women, " there was no mention of abortion or reproductive issues. Democratic Nat'l Comm., Democratic Party Platform of 1972 (1972), available at http://www.presidency.ucsb.edu/ws/index.php?pid=29605.
466. Compare Sections I. A-B (discussing initial arguments for abortion reform based on public health and social welfare), with Sections I. C-D (discussing subsequent feminist arguments for abortion reform).
467. Phyllis Schlafly, Women's Libbers Do NOT Speak for Us, Phyllis Schlafly Rep., Feb. 1972
468. See Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol. Dev. 230, 259 (2007).
469. Popular support for abortion's legalization had been rising before the decision, George Gallup, Abortion Seen Up to Woman, Doctor, Wash. Post, Aug. 25, 1972, at A2. depending on the poll, either continued to rise afterward or remained stable at a high level
470. See, e.g., Donald Granberg & Beth Wellman Granberg, Abortion Attitudes, 1965-1980: Trends and Determinants, Fam. Plan. Persp., Sept.-Oct. 1980, at 250, 252 ("Following the 1973 Supreme Court decisions that ruled restrictive state abortion laws unconstitutional, there was a five-point rise in average approval.... The oneyear increase between 1972 (before the Supreme Court abortion decisions) and 1973 (after the decisions) was sharper than the average annual increase of about three points between 1965 and 1972. "). More than two years after Roe, the Harris Survey reported that approval of permitting access to abortion during the first trimester of pregnancy had reached "the highest level of support the Harris Survey has ever recorded for legal abortion [54 percent] and a turnabout from 1972 when abortion in the first trimester of pregnancy was opposed by a 46 to 42 percent plurality. "
471. Louis Harris, Majority Supporting Abortion Laws Grows, Chi. Trib., May 26, 1975, at 7. This article concluded that "[t]here is no doubt that the U.S. Supreme Court decision solidified public support for legalizing abortion. "
472. Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol. Dev. 230, 259 (2007). Also in 1975, the respected California-based Field Poll reported a sharp increase in support for abortion among California adults.
473. See Mervin D. Field, Poll Shows Dramatic Rise in Support for Abortions, L.A. Times, Apr. 2, 1975, at D1. Whatever these various polls have to offer in the nature of scientific proof, they at least serve to refute any notion that the public greeted Roe with a spontaneous negative reaction.
474. Linda Greenhouse, Justice John Paul Stevens as Abortion-Rights Strategist, 43 U.C. Davis L. Rev. 749, 751 (2010).
475. See Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 71-72 (discussing positions of the Southern Baptist Convention and the National Association of Evangelicals in the period before and after Roe).
476. Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (Linda Greenhouse & Reva Siegel eds., 2010), at 69-90 (periodizing shifts in position and political activism of the Southern Baptist Convention on abortion in the decades after Roe).
477. William Martin, With God on Our Side: The Rise of the Religious Right in America 196 (1996)
478. Michele Mckeegan, Abortion Politics: Mutiny in the Ranks of the Right (1992), at 21-27
479. Republican Nat'l Comm., Republican Party Platform of 1976 (1976), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843
480. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. (1997), at 730-31. and accompanying text. For evidence of this shift expressed in party platforms.
481. Republican Nat'l Comm., Republican Party Platform of 1976 (1976), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843.
482. Jeffrey Rosen, The Day After Roe, The Atlantic, June 2006, at 56, 56-57.
483. Thomas Frank, What's the Matter with Kansas: How Conservatives Won the Heart of America (2004), at 121
484. Jeffrey Rosen, The Day After Roe, The Atlantic, June 2006, at 56, 56-57. It would appear that Watergate disrupted the focus of the Republican Party on abortion, as it disrupted much else. The team of Gerald Ford and Nelson Rockefeller, who completed the remainder of Nixon's 1972 term, generally were supportive of women's rights and the liberalization of abortion.
485. Donnie Radcliffe, Pro-Abortion Stand Taken by Mrs. Ford, Wash. Post, Sept. 5, 1974, at A1 (discussing views on abortion held by leaders of the Ford Administration).
486. Richard A. Viguerie, From the Publisher, Conservative Dig., May 1975, at 1.
487. For more on Viguerie's role in developing direct mail fundraising for the New Right, Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev., n.106 (2008), at 212-14, and on his role in developing direct-mail fundraising strategies that integrated the antiabortion movement into the electoral strategies of the New Right.
488. Connie Paige, The Right to Lifers: Who They Are, How They Operate, Where They Get Their Money (1983), at 125-217, which discusses, among other issues, the development of "ballots for babies" strategies.
489. For example, coverage of abortion in Viguerie's magazine Conservative Digest is sparse in 1975 but spikes by 1979.
490. Richard A. Viguerie, From the Publisher, Conservative Dig., May 1975, at 1
491. Daniel K. Williams, God's Own Party: The Making of the Christian Right (2010), at 168-69.-the year that more Republicans than Democrats in Congress vote against abortion.
492. Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 Am. J. Pol. Sci. 718, 723 (1997).
493. The New Right: A Special Report, Conservative Dig., June 1979, at 10.
494. William Martin, With God on Our Side: The Rise of the Religious Right in America 196 (1996).
495. Michele Mckeegan, Abortion Politics: Mutiny in the Ranks of the Right 20-21 (1992)
496. Frances Johnson Perry, Convergence of Support for Issues by the Antiabortion Movement and the Religious New Right: An Examination of Social Movement Newsletters (Dec. 1985), at 103 (reporting that Richard Viguerie promoted connection between "abortions, " "sexual ethics, " and "secular humanism").
497. The Republican Party began to recruit Democratic voters with a strategy initially focused on race (whether through "busing" or "law and order"). Kevin P. Phillips, The Emerging Republican Majority (1969), at 461-74.
498. Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol. Dev. 230, 259 (2007). Over the course of the 1970s, conservatives would identify a new set of "social issues, " prominently including matters of family and faith. Viguerie and Weyrich played an important role in persuading evangelical Protestants-by the late 1970s beginning categorically to oppose abortion-to enter politics around abortion. In several accounts, however, Weyrich has insisted that what actually concerned and motivated conservative Protestants to enter politics was the federal government's threat to withdraw the tax-exempt status of any evangelical school that was not racially integrated.
499. Paul Weyrich, Comments, in No Longer Exiles: The Religious New Right in American Politics 25, 26 (Michael Cromartie ed., 1993)
500. One of us has elsewhere argued that the New Right's appeal to originalism gave constitutional form to a "social issues" agenda that the Republican Party used in service of realignment. Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. n.106 (2008), at 218 ("Meese's speeches endorsing original intent... gave the movement's constitutional politics jurisprudential form. ").
501. Kevin P. Phillips, The Emerging Republican Majority (1969), at 221 (showing how, by the 1980s, the Reagan Administration was appealing to the Constitution's "original intent" to challenge "disfavored lines of cases that tracked 'social issues' of the New Right (for example, the rights of criminal defendants, school prayer, and contraception and abortion)").
502. Kevin P. Phillips, The Emerging Republican Majority (1969), at 224 (observing that "originalism advanced the 'social issues' agenda of the New Right").
503. Kevin P. Phillips, The Emerging Republican Majority (1969), at 217 n.122 (discussing polling by Weyrich's Heritage Foundation in the spring of 1980 eliciting public attitudes on courts and "such 'social issues as abortion, busing and voluntary prayer in the schools'"
504. (quoting John Chamberlain, Moral Issues Not a Good Core for Political Coalitions, Ironwood Daily Globe, Dec. 1, 1981, at 4).
505. Richard A. Viguerie, From the Publisher, Conservative Dig., May 1975, at 1.
506. The New Right: A Special Report, Conservative Dig., June 1979, at 10.
507. Memorandum from Patrick Buchanan (1972)., at 216 (grouping abortion under "Social Issues-Catholic/Ethnic Concerns, " along with "Amnesty" (for draft evasion in the Vietnam war), "Marijuana, " and "Aid to Nonpublic Schools").
508. Thomas Byrne Edsall & Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics 141 (1991). The speech was entitled "The New Republican Party" and was delivered on February 6, 1977, by then-Governor Ronald Reagan to the Fourth Annual Conservative Political Action Conference.
509. See Governor Ronald Reagan, Address at the Conservative Political Action Conference: The New Republican Party (Feb. 6, 1977), available at http://www.conservative.org/cpac/archives/cpac-1977-ronald-reagan/.
510. There is, for example, ongoing debate over whether the "social issues" agenda has moved working-class Americans from affiliation with the Democratic Party to the Republican Party. Compare Thomas Frank, What's the Matter with Kansas: How Conservatives Won the Heart of America (2004), at 5 ("While earlier forms of conservativism emphasized fiscal sobriety, the backlash mobilizes voters with explosive social issues-summoning public outrage over everything from busing to un-Christian art-which it then marries to pro-business economic policies. ").
511. with Larry M. Bartels, What's the Matter with What's the Matter with Kansas?, 1 Q. J. Pol. Sci. 201, 201 (2006).
512. (questioning the popular account in Thomas Frank's What's the Matter with Kansas? that working-class Americans have moved from Democratic to Republican political affiliation because of a cultural issues agenda and reporting findings that it is only in the South that the Republican Party has converted a significant number of white working-class voters and that "[t]he apparent political significance of social issues has increased substantially over the past 20 years, but more among better-educated white voters than among those without college degrees").
513. The Republican Party's 1980 platform first made "traditional family values" and abortion the litmus in the selection of judges: "We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life. " Republican Party Platform of 1980, (1976), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843.
514. Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol. Dev. 230, 259 (2007). (observing that popular support for abortion's legalization had been rising before the Court's decision, and depending on the poll, either continued to rise afterward or remained stable at a high level).
515. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 940 (1973).
516. (arguing that in its substantive due process analysis, Roe not only threatened to revive the discredited doctrine of Lochner v. New York, 198 U.S. 45 (1905), but also "may turn out to be the more dangerous precedent").