When Fetal Rights Are More Important Than Democracy

After Roe, the anti-abortion movement faces a new opponent: popular opinion.

A photo of anti-abortion activists in front of the Supreme Court
Bettmann / Getty

Updated at 12:13 p.m. ET on October 4, 2022.

The anti-abortion movement has long loved to profess its love for democracy. Clarke Forsythe of Americans United for Life consistently called on the Supreme Court to reverse Roe v. Wade and put questions about abortion “back into voters’ hands—where they belong.” The National Catholic Register proclaimed the day Roe was overturned “a wonderful day for democracy.”

But now democracy may not look so hot to anti-abortion activists: In the months since Roe was overturned, voters in Kansas, a deeply conservative state, decisively rejected a proposal to undo state constitutional abortion rights, and many expect the result to be the same when voters confront ballot initiatives in key states such as Michigan. Fueled by rage about the reversal of abortion rights, Democrats have nearly eliminated Republicans’ advantage in voter registration and have turned what appeared to be a landslide loss in the 2022 midterms into a potential nail-biter. In many red states, politicians scared of a backlash are backpedaling on total abortion bans, while Senate candidates such as Blake Masters are busy scrubbing their websites and changing their positions on issues like fetal personhood laws, which would allow abortion to be prosecuted as murder. The anti-abortion movement faces a question: How does it feel about democracy now?

In the past, the movement’s affection for democracy was more than lip service: Many abortion opponents believed that most Americans would oppose legal abortion if they understood what it really involved. But true democratic values require accepting outcomes even when you disagree with them. Following Dobbs v. Jackson Women’s Health Organization, the decision this past summer that overturned Roe, a deeper truth is emerging: For those who believe that abortion is the senseless murder of unborn children, why would you leave the question of those children’s survival up to voters?

When the anti-abortion movement mobilized in the ’60s, its leaders mobilized to defeat narrow reforms to abortion bans allowing the procedure in cases of rape, incest, fetal abnormality, or health threats. This effort did not immediately pay off: States with both Republican and Democratic majorities began changing their laws. By the early ’70s, John Willke, a physician and one of the movement’s early leaders, hoped to reverse this trend with abortion slide shows.

Willke’s presentations won over new recruits and created a new belief in the growing movement: People supported abortion without knowing what it really was. Anti-abortion groups sought to air graphic ads about abortion. They fought against the Federal Communications Commission’s fairness doctrine, which required broadcasters to air both sides of controversial issues (meaning pro-abortion-rights groups would have had the chance to put on commercials of their own), and against pro-abortion-rights groups who argued that these ads qualified as indecent and had to be aired when children wouldn’t see them. But there was always a tension between the movement’s confidence in the public and how it defined its cause—as a fight for fetal rights that deserved protection regardless of what a voting majority wanted.

Even after Roe, many in the anti-abortion movement saw democracy as a boon, not a hindrance. After 1973, the movement spent a decade pushing a constitutional amendment recognizing fetal personhood and banning abortion. True, a constitutional amendment would take the abortion issue out of popular politics—most likely for good. But even believing that an amendment could pass required real faith in voters. Then, as now, polling showed that a clear majority of Americans supported abortion rights under at least some circumstances. To pass an amendment, the anti-abortion movement would have to transform popular opinion, build tremendous support, and win over a supermajority in Congress and in the states.

Even after sweeping Republican victories in 1980, however, there weren’t enough votes for a ban, and anti-abortion leaders turned to Plan B: a fight to reshape the Supreme Court and ensure that Roe was overturned—not by the public’s will but by judicial fiat. By the mid-’80s, anti-abortion leaders, who had not until then complained much about judicial overreach, began describing Roe as the ultimate act of judicial overreach and calling for the return of the abortion issue to the American people.

This new obsession with the judiciary was strategic. It created a new alliance between abortion opponents and the emerging conservative legal movement, led by the Federalist Society. The Federalist Society had been forced to work with the anti-abortion movement, but the relationship had not always been warm. A focus on the judiciary changed that: While Republicans and elite conservative lawyers did not agree on abortion in the ’80s and ’90s, they mostly shared a hatred of what they perceived to be the abuses of the liberal Supreme Court. Anti-abortion leaders believed that they had found a way to have it all: The American people would support criminalizing abortion at the state level if the Supreme Court deemed that the procedure was not protected by the Constitution and gave the anti-abortion movement the chance at a fair fight.

By the early ’90s, the cracks in the movement’s support for democracy had started to show. In 1992, in Planned Parenthood v. Casey, when a Supreme Court with six Republican nominees refused to reverse Roe, many attributed the decision to save abortion rights to the fact that the American people did not want Roe reversed. Casey forced the movement once again to confront a difficult question: What would the movement do if a solid majority of Americans really did support legal abortion?

As the ’90s continued, anti-abortion groups proposed an answer: identifying Supreme Court nominees who did not care what the public wanted. To gain more influence over the Republican Party and force the selection of a different kind of judge, anti-abortion groups no longer relied on the idea that Americans would oppose abortion if they understood it. By the 2000s, prominent groups also plunged into the fight to deregulate campaign spending, helping GOP candidates launch super PACs and outspend their rivals. Anti-abortion lawyers worked on redistricting and gerrymandering and stoked fears about voter fraud. All of this meant that elections were less likely to reflect what ordinary voters really wanted—and more likely to reflect the will of the major donors, social movements, and party leaders who had changed the rules of the game.

After Donald Trump’s election and Brett Kavanaugh’s confirmation to the Supreme Court, states began pushing out new abortion bans, many of them more sweeping than voters preferred, at least as measured by polls. Anti-abortion legislators and activists cheered this effort. What mattered to them was maximizing protection for fetal life, not whether the public agreed with it. It did not matter whether Americans wanted Roe preserved if the Court’s conservatives disagreed. The movement began asking the Court to decide that abortion itself was unconstitutional—an effort that has only gained momentum after Dobbs.

The anti-abortion movement now is fragmented, as groups that traditionally dictated strategy are falling out of favor and new, more absolutist organizations such as Students for Life (which condemns chemical contraceptives and rape and incest exceptions, and contends that exceptions for the health of the mother can be interpreted too loosely) are vying for supremacy. Nowadays, those bidding for control of the movement don’t talk much about creating a popular majority. True, some anti-abortion leaders still say that it’s morally acceptable to allow for some abortions when a patient is dying, or even to vote for abortion bans that stop short of criminalizing every procedure because “lawmaking is the art of the possible.” But now, democracy is either an obstacle that the movement has to live with or, for others, an inconvenience that they no longer can afford.

This article originally misstated that Students for Life condemns abortion-ban exceptions for the life of the mother.