For anti-abortion activists, however, the solemnity of Ginsburg’s death was mixed with ecstasy: They believe they are about to taste victory. The next six weeks, which will almost certainly see a vicious Supreme Court confirmation battle amid the final race to Election Day, may determine the future of abortion in America for a generation. “I’m under no illusion that this isn’t the fight of our life,” Dannenfelser said.
If President Donald Trump succeeds in appointing a replacement for Ginsburg, he will solidify a six-person conservative majority on the Supreme Court that could last for a decade or more. The most fundamental issue at stake is the right to abortion, which the conservative wing of the Court has been openly agitating to revisit for years. The almost universally shared goal of the anti-abortion movement is to see Roe overturned so that the question of abortion can return to the states, where voters can directly influence whether their legislatures permit or regulate the procedure. Getting to this moment, in which the conservative justices on the Court may begin fully reimagining abortion jurisprudence, took years of careful planning. “The conservative legal movement has always made sure that it’s well prepared to deal with potential vacancies on the Court,” Leonard Leo, the former executive vice president of the Federalist Society and an architect of Trump’s judicial strategy, told me. His goal for judicial appointments has not been to impose a litmus test on nominees, making them vow to overturn Roe, but “to advance a principled judicial philosophy” that tends to line up with anti-abortion views.
In the years leading up to Trump’s election, pro-life political groups had a huge footprint in politics. Dannenfelser’s Susan B. Anthony List poured millions into electing strictly anti-abortion legislators to Congress, who were almost exclusively Republican; the group also attacked self-described pro-life Democratic legislators who voted for the Affordable Care Act in 2010. And the group has fully thrown its support behind Trump, vowing to help get him reelected in November. Dannenfelser calls him “the most pro-life president in history.” (Before he ran for president, Trump described himself as “very pro-choice.”) At the state level, groups such as Americans United for Life have drafted model legislation imposing incremental limits on abortion, teeing up the legal fights they hope will eventually lead to the end of Roe.
[Read: Science is giving the pro-life movement a boost]
Catherine Glenn Foster, Americans United for Life’s president and CEO, was driving when she heard the news of Ginsburg’s death. She sent a few frenzied texts at the first stoplight she reached, then parked near the Potomac River and worked through dinner. The moment was emotionally complicated: Like Elizabeth Warren and many others, Foster sees Ginsburg as a feminist advocate who made it possible for women like her to advance in the ranks of the legal field. “I wish we could leave it at that. Then her legacy would be something that I could just unequivocally say, ‘She’s a legend,’” Foster told me. But Ginsburg was one of the Court’s most ardent defenders of abortion rights: “Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them,” the justice wrote in one particularly cutting dissent from a 2007 conservative-majority decision, Gonzales v. Carhart, regarding the issue of so-called partial-birth abortion. To Foster, Ginsburg’s support for abortion “does tarnish her legacy.”