Studies in Law, Politics, and Society
Why Roe Still Stands: Abortion Law, the Supreme Court, and the Republican Regime
Thomas M. Keck Kevin J. McMahon
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WHY ROE STILL STANDS:
ABORTION LAW, THE SUPREME
COURT, AND THE REPUBLICAN
REGIME
Thomas M. Keck and Kevin J. McMahon
ABSTRACT
From one angle, abortion law appears to confirm the regime politics
account of the Supreme Court; after all, the Reagan/Bush coalition succeeded in significantly curtailing the constitutional protection of abortion
rights. From another angle, however, it is puzzling that the Reagan/Bush
Court repeatedly refused to overturn Roe v. Wade. We argue that time
and again electoral considerations led Republican elites to back away
from a forceful assertion of their agenda for constitutional change. As a
result, the justices generally acted within the range of possibilities
acceptable to the governing regime but still typically had multiple
doctrinal options from which to choose.
Keywords: Supreme Court; regime politics; Republican Party; judicial
decision-making; Roe v. Wade
Studies in Law, Politics, and Society, Volume 70, 33 83
Copyright r 2016 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-433720160000070009
33
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34
THOMAS M. KECK AND KEVIN J. MCMAHON
It is often said that the U.S. Supreme Court “follows the election returns.”
In broad strokes, the claim is certainly true. Robert McCloskey’s classic
history of the Court, first published in 1960, persuasively linked more than
a century and a half of shifting legal doctrines to the broader political currents of the day (McCloskey, 1960). Writing three years earlier, Robert
Dahl had pointed out that many of the decisions that seemed the best candidates for challenges to the governing regime were, on closer inspection,
not so challenging after all. On Dahl’s account, the indeterminacy of constitutional law left the justices with sufficient discretion to pursue their own
policy preferences, and the dynamics of the judicial appointment process
made it likely that those preferences would reflect the values of the governing partisan coalition (Dahl, 1957). In the most recent version of this story,
the contemporary Court is often described as an ally and partner of the
Republican Party (Balkin & Levinson, 2001; Clayton & Pickerill, 2006;
Johnsen, 2003; Lemieux & Lovell, 2010; Pickerill & Clayton, 2004).
As these regime politics accounts might lead us to expect, the
Republican coalition has succeeded in transforming the constitutional law
of abortion rights to a significant degree. From the late 1970s through the
mid-1980s
that is, before Reagan-Bush justices had taken firm
control
the Court invalidated a long list of legislative restrictions on
abortion enacted by state and local governments, including spousal and
parental consent mandates (for married women and minors, respectively);
hospitalization requirements (for second-trimester abortions); requirements
for the “humane” treatment of fetal remains; and mandatory waiting periods combined with “informed consent” provisions directing abortion providers to give patients detailed (and at times misleading) information on fetal
development, maternal health risks, and the like.1 The Court upheld some
lesser restrictions, but its central message was clearly and consistently
repeated: Legislators were free to promote the government’s interests in
fetal life and maternal health as long as they understood that the former
became compelling only after the point of fetal viability and the latter could
never justify a regulation that lacked a health exception. As Justice Harry
Blackmun put it in 1986, the “States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.”2 Beginning in 1989, however, the Court reversed course
on almost all of these specific holdings, and in 2007 even upheld a nationwide ban on a particular abortion procedure that applied prior to fetal viability and lacked a health exception.3 In short, local, state, and federal
legislative bodies are far freer today than 20 years ago to make abortions
more difficult to obtain.
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Why Roe Still Stands
35
From another angle, however, the Court has repeatedly rejected the central demand of an essential GOP constituency. Throughout the Reagan
and Bush I years, Republican Party platforms called for the adoption of
“right-to-life” amendments to the Constitution that would have eviscerated
Roe v. Wade (1973). Republican presidents sharply criticized that landmark
ruling as illegitimate judge-made law, and Republican Justice Departments
called on the Court to discard it. Despite these efforts, the Republican
Court refused to listen. Indeed, the Rehnquist’s Court’s repeated reaffirmations of Roe help explain why, throughout most of its history, its sharpest
critics were on the right (e.g., Bork, 2002; Morgan, 2006). On the very issue
that brought social conservatives into national politics as an identifiable
group, directed their political ire at the Supreme Court, and fostered
Republican electoral success in the 1980s, the movement has fallen short of
its goal.
As this brief review suggests, the Court’s decisions will often be broadly
consistent with regime preferences, but the justices will usually have alternative options that are also consistent with regime preferences. Thus, by
looking at the Court’s actual decisions and documenting their links with
the governing coalition, the regime politics literature sometimes overstates
the degree to which those decisions were dictated by that coalition. This
potential for overstatement is particularly significant given the institutional
arrangements of contemporary American politics. There may once have
been a time when electoral coalitions seized firm control of all the institutions necessary to reshape the polity in their image, but in recent decades,
no governing coalition has come close to duplicating the breadth and depth
of Franklin Roosevelt’s or Lyndon Johnson’s control over the national
political system (Skowronek, 1993, 2008).4
REGIME POLITICS AND THE COURT
Building on the works by Dahl and McCloskey cited earlier, along with the
influential work of Martin Shapiro, a number of contemporary political
scientists and legal scholars have sought to trace the decisions of the
United States Supreme Court to the policy and political commitments of
the governing partisan regimes that put the justices in power (Balkin &
Levinson, 2001; Clayton & Pickerill, 2006; Gillman, 2002, 2003, 2004;
Graber, 1993; Johnsen, 2003; Lemieux & Lovell, 2010; McMahon, 2004,
2011; Pickerill & Clayton, 2004; Whittington, 2005; see also Barnes, 2007,
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36
THOMAS M. KECK AND KEVIN J. MCMAHON
pp. 31 33; Keck, 2007b). As Howard Gillman has put it, “‘[r]egime politics’ refers to the various ways in which governing coalitions organize their
power and advance their political agenda within a system of interrelated
institutions.” With regard to judicial institutions, it is sometimes helpful to
think of courts as akin to executive branch agencies; because they both
“have policy-making authority, members of the governing coalition have
an interest in influencing what might be called their decision-making bias,
or the general political and ideological predispositions that they bring to
their institutional responsibilities” (2006, pp. 107 108). Put another way,
regime politics scholars understand the direction and nature of constitutional law as politically constructed (Graber, 2005, p. 427).
Abortion law has long been a focus of these regime politics accounts. In
an article that is often credited with sparking the emergence of the paradigm, Mark Graber argued that national policy makers in general, and
Reagan-era Republican leaders in particular, actively sought to remove
abortion from the legislative agenda by delegating the issue to the courts
(1993, pp. 53 61). More recently, Scott Lemieux and George Lovell have
noted that “legislators sometimes decide to empower judges because they
care more about who takes responsibility for establishing policies than they
care about what policies are actually established” (2010, p. 221). Lemieux
and Lovell identify abortion politics as a case of such a “legislative
default,” though they are agnostic on how many of the defaulting legislators have deferred to the Court’s abortion rights decisions because they
agree with them and how many have done so because they disagree with
(or are indifferent to) those decisions but nonetheless appreciate the political benefits of maintaining them as a proverbial punching bag.
Some recent accounts have pushed this claim further, alleging that the
latter motivation is the principal reason that Roe still stands. On these
accounts, which have become a staple of liberal legal commentary on the
abortion issue, Republican presidents never actually wanted Roe overturned. As with their other “culture war” positions, they insincerely called
for Roe’s reversal in an effort to convince socially conservative working
class Americans to vote against their own economic interests (Frank, 2004).
Put another way, the Republican drive against Roe was more about mobilization than implementation. As Jack Balkin put it in a 2003 op-ed, “if
Roe v. Wade were overturned, the political agenda would shift …. For
Republican candidates, it would no longer be just a question of defending
limited restrictions on abortion. They would have to explain whether they
were willing to send women and their doctors off to jail.” These debates
“would split the Republican coalition wide open. The party would soon
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Why Roe Still Stands
37
find itself losing ground in many key states, seriously hampering its chances
at winning the presidency for a generation” (Balkin, 2003). Along similar
lines, Mark Tushnet has noted that “[m]ost political observers think that
[overruling Roe] would be a disaster for Republicans on the national scene”
(2005, p. 322).5
In this strong version of the regime politics explanation, what
Republican office holders really wanted all along was not to reverse Roe
but to continue criticizing the Court for maintaining it
a goal that
required the justices to keep the decision in place. Under such a scenario,
Republicans could still rally social conservatives to the polls, but would not
have to campaign for office in the minefield of a post-Roe electoral world.
These claims have the advantage of rescuing Dahl’s account from an
apparently inconsistent empirical data point, but they do so only by
neglecting the power of the Court as an independent source for articulating
the conflicting policy interests within the dominant regime. Tushnet’s
observation that Republican elites were happy with the Court’s failure to
overturn Roe came in a book whose thesis was that the Rehnquist Court
“implement[ed] a constitutional vision associated with the nation’s dominant political party.” Though he offers some qualifications, the general
thrust of Tushnet’s argument is that “the patterns discernible in the
Rehnquist Court’s decisions reproduced the patterns occurring in
American politics generally” (2005, pp. 10 11, 322). This thesis requires
him to make sense of Roe’s surprising survival, and he does so by insisting
that economic conservatives have controlled the Republican Party and
have neglected the concerns of their social conservative allies.
This argument overstates the degree to which justices mirror the partisan
coalitions that put them on the bench, and it fails to account for the actual
pattern of presidential behavior on the abortion issue. As each of us has
argued elsewhere, the political commitments of the governing regime generally “help forge the institutional mission of the Court,” but they do not
determine the precise content of the Court’s decisions (McMahon, 2004,
p. 19; see also Keck, 2004). As for the presidency, the strong regime politics
account suggests that Reagan and the two Bushes wanted the Court to
maintain Roe all along (so that they would still have their favorite punching bag) and hence intentionally appointed abortion moderates to the
bench. As we make clear below, however, these presidents have in fact
nominated anti-abortion ideologues whenever they thought they could get
away with it. The reason Roe still stands is that there were several key
moments where they did not think they could get away with it, and several
others where they tried to do so but failed.
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38
THOMAS M. KECK AND KEVIN J. MCMAHON
When partisan elites attempt to dictate the maintenance, expansion, or
reversal of particular judicial decisions, a variety of institutional norms and
structures stand in their way. In particular, national political parties are
typically composed of multiple factions, and at the congressional level, the
balance of power among the majority party’s internal factions will often
constrain the leadership’s capacity to pursue particular policy goals
(DiSalvo, 2012). When the president and the congressional leadership are
from the same party, the fate of the president’s legislative program will
often hinge on his ability to keep the various factions in the fold. Under
certain conditions, these internal partisan conflicts may constrain the
administration’s willingness to use powers fully within the executive’s formal control (such as Department of Justice litigation) in ways that would
alienate important elements of the party.6 During times of divided government, the president is likely to have a freer hand with regard to
litigation
since his co-partisans in Congress are in less of a position to
disrupt his legislative program if they are unhappy with his litigation
decisions but his freedom over judicial appointments will be restricted by
a hostile Senate.
With a concerted and sustained effort, these obstacles can be overcome,
but party leaders will often find it difficult to maintain focus on this task
amidst competing priorities and in the face of electoral costs. If the president and his allies back down at crucial moments, and the Court then
ignores their earlier calls for doctrinal change, it may be accurate to say
that the Court’s decision was consistent with regime preferences. After all,
the regime’s leaders refrained from pushing just when it might have made
the difference. But if the justices had heeded the call for doctrinal change,
that decision could be described as consistent with regime preferences as
well. Thus, while most of the Court’s significant decisions can in hindsight
be reconciled with the preferences of the governing regime, the justices will
often have had other available options that could also be so reconciled,
and we must look beyond the regime’s preferences to explain why the
Court chose one such option rather than another.
In the abortion context, consider the doctrinal possibilities on an ideological range from left to right. On the left, the most extreme option represents the broadest judicial protection of abortion rights imaginable,
perhaps represented by Balkin’s account of “what Roe should have said.”
In Balkin’s hypothetical opinion for the Court, “women have a right to
choose the conditions under which they will take on the responsibilities of
motherhood so as to facilitate and secure their equal citizenship. Therefore,
the key question is whether the state’s regulatory scheme gives the woman
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Why Roe Still Stands
39
the ability to protect her health and safety and offers her a fair and realistic
chance to decide whether to become a parent, through a safe and realistically available method of abortion” (Balkin, 2005, p. 52). Under such a
doctrine, the courts would strike down not just outright bans and onerous
restrictions on abortion, but all state and federal policies that deny women
a fair and realistic chance to end their pregnancies when they so choose.
Among other things, the courts would require abortion services for indigent
women to be publicly funded on the same terms as all other medical
services.
On the other end of the spectrum, a hypothetical judicial ruling would
hold that fetuses are constitutional “persons,” with their right to life protected by the Fourteenth Amendment. Under this ruling, states would be
obligated to ban abortion altogether, likely including the use of mifepristone and other emergency contraceptives that are effective when taken after
unprotected intercourse. Beginning in 1980, the Republican Party platform
adopted this position, calling not just for the end of Roe v. Wade but for a
constitutional amendment that would restore the fundamental “right to life
for unborn children.” In 1984, convention delegates approved language
that took this pro-life stance even further, supporting “legislation to make
clear that the Fourteenth Amendment’s protections apply to unborn children.” In 1988, the platform’s language was virtually unchanged from four
years earlier.7
On this scale, as illustrated in Fig. 1, all of the Court’s actual abortion
decisions would fall somewhere in the middle, beginning with Roe itself
and, moving from left to right, followed by Planned Parenthood v. Casey
and then Gonzales v. Carhart. A hypothetical decision reversing Roe and
returning the issue to the state legislatures would be even further to the
right, but still short of a fetal right to life. (The precise locations of decisions on the line could be quibbled with, but it is only their relative
Planned
Parenthood v.
Casey
Abortion on
Demand
Conservative
Liberal
Roe v. Wade
Fig. 1.
A hypothetical
decision
reversing Roe
Gonzales v.
Carhart
Fetal Right
to Life
Range of Ideological Possibilities for Court Decisions on Abortion.
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40
THOMAS M. KECK AND KEVIN J. MCMAHON
positions that matter to our argument.) Existing regime politics accounts
make clear that we should expect current doctrine to fall somewhere to the
right of Roe itself, but they do not tell us where in that space to look. Some
Republican elites want a nationwide ban on abortion. Others want the
issue returned to the state legislatures, free from federal judicial supervision, allowing states to ban abortion if they choose. And still others want
the Court to maintain Roe in name while allowing state legislatures significantly more room to enact restrictions short of total bans. How do we
explain the Court’s selection of one of these possibilities over the others?
Our answer is that governing regimes will almost always be able to push
the Court in their preferred direction over time, but that the scope of such
change will be limited by the regime leaders’ willingness and ability to sustain this push in the face of competing ideological and political priorities.
To push the Court from somewhere near one end of the spectrum to somewhere near the other, a president (or series of presidents) would need to
mount a legal version of a full-court press. While presidents often indicate
that they would like the Court to move in a new direction on a particular
issue, their willingness to act on this preference varies considerably under
different political conditions. In some contexts, they are likely to offer
nothing more than lip service, criticizing a particular judicial decision without lifting a finger to change it. Further along, presidents might talk about
the issue somewhat more often, while directing or allowing Department of
Justice (DOJ) attorneys to cautiously pursue the issue in their briefs.
Consider, for example, the Bush administration’s meek efforts to persuade
the Court to curtail race-conscious affirmative action in early 2003. Still
further along the spectrum, the president and his administration might
push harder on some fronts, but not consistently. A president, for example,
might allow DOJ to advance a hard line in its legal filings, while simultaneously making judicial appointment decisions on the basis of more
immediate political concerns. Finally, a president might use all the powers
of his office to push aggressively and consistently for a new set of constitutional understandings.
Because presidents have political as well as ideological motivations
and because the two are sometimes in tension with each other they will
pursue this fourth course only rarely. When they do pursue it, moreover, it
will often be difficult to sustain this aggressive push for long. Dahl (1957)
was right that the judicial appointment power makes it likely that the
Court will generally follow presidential preferences over time. However, we
should expect profound changes in direction from the Court on a politically
salient issue only when presidents are able to sustain an aggressive
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Why Roe Still Stands
41
constitutional agenda over the medium term. Even then, they might still
fall short of their goal if the political opposition is strong enough. In situations of divided government
or situations of unified government where
public opinion is clearly at odds with the president’s party on the issue at
hand
even a consistent, sustained, and aggressive constitutional agenda
is likely to leave its core supporters dissatisfied with the pace of change. In
the following pages, we chart the inconsistent effort on the part of
Republican presidents with regard to the abortion issue and in doing so,
explain why conservatives have experienced progress but not fulfillment. In
short, we explain why Roe still stands.
ELECTIONS, INSTITUTIONS, AND THE
REPUBLICAN JUDICIAL STRATEGY
In an effort to more carefully specify the interaction between partisan political action in the elected branches and legal change on the Court, we trace
the process by which national Republican elites sought to transform the
Court’s abortion jurisprudence from the beginning of the Reagan era
through the first five years of Barack Obama’s presidency. In doing so, we
emphasize that these officials regularly faced conflicts between and among
their ideological and political commitments. That is, they regularly recognized that an all-out pursuit of their opposition to Roe might hurt them on
Election Day or force them to sacrifice other policy goals. Republican presidents sometimes pursued their pro-life commitments despite these political costs. At other times, they softened their stance on overturning Roe,
while still seeking to limit abortion in other ways. These shifting signals
from the political branches left the justices with significant freedom to act
on their own legal and political commitments and ultimately made it less
likely that the Court would overturn Roe.
A Divided Coalition: 1981 1984
Ronald Reagan’s strategy of making “transformative judicial appointments” has sometimes been compared to FDR’s (Ackerman, 1988; see also
McMahon, 2007), but the two presidents were acting in significantly different political contexts when they sought to reshape the high Court.
Consider their first nominees. In 1937, FDR commanded so much political
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42
THOMAS M. KECK AND KEVIN J. MCMAHON
authority that he likely could have won Senate confirmation of a wide
range of potential justices. After searching for more than two months for a
stick-it-in-your-eye nominee to pay back the Senate for its recent rejection
of his Court-packing plan, he selected “the most radical man” in the
Senate, Alabama’s Hugo Black. In 1981, even with the GOP in control of
the Senate for the first time in nearly three decades, President Reagan pursued a more cautious path. Late in the campaign, as polls showed him slipping with women voters, Reagan had pledged to name the first woman to
the Court. In choosing “to make history” by fulfilling this pledge with his
first nominee, Reagan settled on a candidate who was more acceptable to
his fiercest critics than to his staunchest allies.8 In particular, social conservatives were displeased that Sandra Day O’Connor, while serving in the
Arizona Senate, had voted to liberalize the state’s abortion laws (Yalof,
1999, pp. 139 141). Since Reagan had signed similar legislation as governor of California (Monroe, 1968), he may have been more tolerant of this
indiscretion. In any event, his primary motivations for the selection were
electoral rather than ideological.
Reagan had successfully united economic and social conservatives to
win the election, but once in office, he chose to prioritize the concerns of
the former. With the House still in Democratic hands and more than a
third of the Senate Republican caucus still committed to abortion rights, he
would focus his legislative efforts on enacting his aggressive tax and budget
agenda. Thus, in the early part of his presidency, he devoted little attention
to social conservative issues in Congress. Some conservatives interpreted
this cautiousness as a lack of commitment on the president’s part, but
others considered it strategically wise. According to Mark Gitenstein, conservatives like Pat Buchanan and Lyn Nofziger argued at the time that “it
would be a mistake for the President to expend political capital on what
they considered a hopeless cause.” As Nofziger put it: “Ronald Reagan is a
practical politician, as well as a zealot, on some issues. And he knows
you’re not going to shove that stuff though Congress no matter how much
he wants it, certainly not with the makeup of Congress today. Other things,
like taxes, the budget and summits, have superseded the social agenda, and
they always will.” Then-Congressman Dick Cheney of Wyoming agreed: “I
can’t think of anything that would have been more divisive up here or created more difficulty for other parts of the program than for the
Administration to push repeatedly, for example, on abortion.” Thus, on
most social matters, the administration simply did not apply full-court
pressure. According to Gitenstein, the Capitol Hill consensus was “that the
absence of direct White House, indeed presidential, involvement helped
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Why Roe Still Stands
43
opponents to defeat Reagan’s legislative program on the social
agenda … The President saved the personal lobbying, a task he enjoyed
and excelled at, for his tax, budget, and defense initiatives” (Gitenstein,
1992, p. 41; see also Graber, 1993, p. 59). This political context for the
Reagan administration’s early constitutional agenda
and for the subsequent eras we detail later is summarized in Table 1.
In this context, when the administration’s lawyers had their first chance
to weigh in on the abortion issue in court, they pulled their punches. Not
yet willing to challenge Roe directly, Solicitor General Rex Lee ducked the
question of whether it “was correctly decided” in his July 1982 amicus brief
in Akron v. Akron Center for Reproductive Health. In response to heated
questioning from Justice Blackmun at the oral arguments later that year,
Lee expressly denied that the administration was asking the Court to overrule the 1973 decision. Picking up on a phrase used by the Court itself in
Bellotti v. Baird (1976) and Maher v. Roe (1977), Lee urged the justices to
uphold state and local abortion regulations “so long as those regulations
do not unduly burden the woman’s right.”9 As with the O’Connor appointment and the president’s legislative program, the most ideological social
conservatives were displeased.
Given the conservative skepticism toward O’Connor, many of Reagan’s
supporters were pleasantly surprised when the new justice finally had a
chance to weigh in on the abortion issue. The headline coverage of the
1983 Akron decision emphasized the Court’s forceful reaffirmation of Roe,
but from the right’s perspective, the noteworthy development was that
O’Connor had joined Rehnquist and White the two Roe dissenters in
the Court’s anti-Roe bloc. Indeed, O’Connor had written for the three of
them in dissent, articulating a significant new critique of Roe in the process
(Greenhouse, 1983). Opening with a sharp attack on Roe’s “completely
unworkable” trimester framework, O’Connor argued that advancements in
medical technology had placed two of Roe’s holdings on a “collision
course.” Under Roe, the states were free to regulate second-trimester abortions to protect maternal health because that was approximately the point
at which abortion became more dangerous than childbirth, and the states
were free to regulate third-trimester abortions to promote fetal life because
that was approximately the point of fetal viability. Since 1973, however,
technological developments had made second-trimester abortions ever
more safe and second-trimester fetuses ever more viable, such that doctors
might soon be able to perform completely safe abortions of viable fetuses.
O’Connor’s futuristic predictions went a bit overboard
a generation
later, “the not too distant future” of first-trimester fetal viability is no
House/Senate
D/R
A Divided Coalition,
1981 1984
A Short-Lived
D/R
Mandate, 1985 1986
Divided Government, D/D
1987 1992
SCOTUS
7 (1)
7 (3)
8 (6)
The Politics of
Preemption,
1993 2000
A Nation Divided,
2001 2004
Another Short-Lived
Mandate, 2005 2006
D/D (1993 1995)
R/R (1995 2000)
7 (6)
R/R
7 (6)
R/R
7 (6)
A Return to Divided
Government,
2007 2008
Into the Wilderness?
2009 2013
D/D
7 (6)
D/D (2009 2010)
R/D (2011 2014)
5 (5)
Key Features
Notable Abortion Decisions
Limited efforts to undermine Roe;
Akron v. Akron Center for Reproductive
emphasis on tax and fiscal agenda
Health (1983)
Aggressive pursuit of Roe’s demise;
Thornburgh v. American College of
transformative judicial appointments
Obstetricians and Gynecologists (1986)
Aggressive litigation; mixed approach on Webster v. Reproductive Health Services
appointments; more caution during
(1989); Hodgson v. Minnesota (1990);
1992 presidential campaign
Rust v. Sullivan (1991); Planned
Parenthood v. Casey (1992)
GOP out of the White House; legislative Stenberg v. Carhart (2000)
efforts targeting partial-birth abortion
ban
Incremental legislative agenda; rhetorical None
timidity at presidential level
High point of social conservatism, yet
Ayotte v. Planned Parenthood (2006)
conservative concerns with Bush
White House persist
Active on litigation front, though
Gonzales v. Carhart (2007)
stopped short of calling for Roe’s
reversal
Legislative efforts focused at state level Isaacson v. Horne (2013); Planned
Parenthood v. Abbott (2013)
Note: House/Senate column indicates the predominant patterns of partisan control of each house during the specified period. From 2001
to 2004, the GOP controlled the Senate except for the period from June 6, 2001 to November 12, 2002. SCOTUS column indicates the
number of GOP appointees (and the number of Reagan and post-Reagan GOP appointees) sitting on the Court at the close of the specified
period.
THOMAS M. KECK AND KEVIN J. MCMAHON
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Era
Political Context for Republican Efforts to Undermine Roe, 1981 2014.
44
Table 1.
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Why Roe Still Stands
45
closer to arriving
but her central point was that it is incompatible with
“sound constitutional theory” for the Court’s standards of review to shift
with changing technology.10
O’Connor did not propose overruling Roe altogether; that issue had not
been raised by the parties or the court below, and she pointedly left the question open. Instead, she followed Solicitor General Lee in urging the Court to
apply its skeptical “compelling interest” standard of review only to regulations that impose an “undue burden” on abortion rights. Since the Akron
regulations at issue here imposed (in her judgment) only minimal burdens
on such rights, the Court should uphold them under the much less exacting
“rational basis” standard. Writing for the Court, Justice Lewis Powell characterized O’Connor’s opinion as “reject[ing] the basic premise of Roe.”11
Though the Reagan administration’s lawyer and its justice had each
declined to call directly for Roe’s reversal, these actions by Lee and
O’Connor reassured some of the president’s conservative skeptics (Barbash,
1982). Lee’s brief marked the first time that DOJ had participated in an
abortion case that did not involve federal law, and Lee went quite far in challenging the activist jurisprudence symbolized by Roe. Noting the superior
“fact-finding capability” and public accountability of legislative institutions
(as compared to courts), he argued at length that “in deciding which legislative policy choices are ‘unduly burdensome’ and which are not, the Court
should accord heavy deference to the legislative judgment.” He ended the
brief by noting that the “Constitution … contains no mention of the words
‘privacy’ or ‘abortion’” and complaining that the Court had “extended [it] to
those matters only by piecing together a combination of shadows from a
variety of explicit guarantees in the document.” When the Court reaffirmed
Roe in the face of these arguments, President Reagan himself responded
by expressing his “profound disappointment” with the decision. Praising
O’Connor’s dissent, the president called on “Congress to make its voice heard
against abortion on demand and to restore legal protections for the unborn
whether by statute or constitutional amendment.”12 While this call for a
“right-to-life” amendment had been part of the GOP platform since 1980,
Reagan’s willingness to endorse it in direct response to the Court’s decision
signaled a potential escalation of the administration’s anti-Roe efforts.
A Short-Lived Mandate, 1985 1986
Reagan’s conservative skeptics were further reassured when he nominated
Edwin Meese III as attorney general in 1984. Liberal Democrats delayed
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THOMAS M. KECK AND KEVIN J. MCMAHON
Meese’s confirmation for more than a year, but after Reagan’s landslide
reelection in November, they could no longer hold off his ascendance to
the top law enforcement job in the nation. Once in place, Meese quickly set
to using the bully pulpit of his office and the resources of the Justice
Department to pursue his social agenda. First, under the banner of a “jurisprudence of original intentions,” Meese outlined his constitutional vision in
a major address to the American Bar Association, directly attacking
Warren Court-style liberal activism as democratically illegitimate. Second,
he brought to the department a judicial selection process that was significantly more committed to finding ideological conservatives than the process
in place during the selection of O’Connor (Yalof, 1999, pp. 142 165). And
third, he staffed DOJ with committed conservatives, with Charles Fried
and William Bradford Reynolds playing leading roles and a host of
younger conservative lawyers filling out the ranks.13 As Teles (2009) has
shown, these efforts by the Meese Justice Department continued to bear
fruit for years to come, both by conferring attention and legitimacy on conservative legal ideas and by advancing the career prospects of young conservative lawyers.
On the abortion issue, these efforts bore fruit as well, with Fried’s
appointment as Solicitor General proving particularly significant. Unlike
his predecessor, Fried proved willing to issue a direct call for the Court to
overturn Roe. In fact, the president nominated him for the post only after
he had done so. As Deputy Solicitor General, Fried became Acting
Solicitor General upon Lee’s May 1985 resignation, and shortly thereafter,
the Court agreed to hear a challenge to Pennsylvania’s abortion regulations
in Thornburgh v. American College of Obstetricians and Gynecologists
(1986). In July, Fried filed an amicus brief urging that Roe be overturned,
and in September, Reagan announced Fried’s nomination as S.G. (Caplan,
1987, pp. 149 150; Fried, 1991, pp. 31 35). In his Thornburgh brief, Fried
built on his predecessor’s broad critique of the Court’s activist defense of
unenumerated liberties, insisting that “the further afield interpretation travels from its point of departure in the text, the greater the danger that constitutional adjudication will be like a picnic to which the framers bring the
words and the judges the meaning.” Regarding the modern Court’s interpretation of the due process clause, he acknowledged that “[i]t is late in the
day to argue that this provision should be limited to its apparent textual
meaning,” but urged the Court to avoid the “temptations” to which it had
succumbed during “one of the most troubled and demoralizing episodes in
our constitutional history.” Comparing Roe to the Court’s infamous 1905
decision in Lochner v. New York, Fried insisted that “the conviction held
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Why Roe Still Stands
47
by some that free access to abortion is a fundamental expression of individual freedom … does not constitute constitutional argument. It is at best
an intuition based in controversial moral and social theories of the good
life and of an individual’s situation in society, theories ‘which a large part
of the country does not entertain.’” As such, “[t]he textual, historical and
doctrinal basis of [Roe] … is so far flawed that this Court should overrule it
and return the law to the condition in which it was before that case was
decided.”14
Fried’s brief marked the first time in decades that the Office of Solicitor
General had asked the Court to overturn a fundamental constitutional decision, a request that had been personally approved by President Reagan
(Greenhouse, 1985). The president had been escalating the rhetorical war on
Roe as well, using the occasion of the decision’s twelfth anniversary (in
January 1985) to denounce abortion as a “horror” and a “tragedy” and to
declare to his pro-life supporters, “the momentum is with us.”15 But the
Court
which still included only one Reagan justice
was not yet on
board.
In fact, though no one knew it at the time, the Court’s June 1986
Thornburgh decision marked the high point of its protection of abortion
rights. Together with the 1983 Akron decision, the Court had now invalidated a long list of innovative legislative restrictions on abortion, including
a parental consent requirement for minors seeking abortions; a requirement
that all second-trimester abortions be performed in a hospital; a requirement that fetal remains be “disposed of in a humane and sanitary manner”;
a mandatory 24-hour waiting period; and informed consent regulations
requiring doctors to provide each patient with a detailed descriptions of her
fetus’s current stage of gestational development and to inform her that “the
unborn child is a human life from the moment of conception,” that abortions may “result in severe emotional disturbances,” that “there may be
detrimental physical and psychological effects which are not accurately
foreseeable,” that “medical assistance benefits may be available for prenatal
care, childbirth and neonatal care,” and that “‘the father is liable to assist’
in the child’s support.”16 The Court had upheld some lesser restrictions,
but its central message to conservative state legislatures was clear.
From another angle, however, the Thornburgh decision revealed signs of
conservative progress. Rehnquist, White, and O’Connor reiterated their
earlier criticism of Roe, and Chief Justice Burger was finally persuaded to
join them, more or less renouncing his prior support for the decision. As a
result, the Court was now divided 5-4, a fact that reinforced the conservative preoccupation with judicial appointments and cemented the abortion
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THOMAS M. KECK AND KEVIN J. MCMAHON
issue as the dominant consideration in this context. In an interview the previous year, Meese had emphasized that in appointing federal judges, the
administration was looking for people who, in addition to integrity, competence, and judicial temperament, also “have the proper judicial philosophy
and approach to the bench, which precludes judicial activism, or substituting the courts for the legislature. In other words, we want judges who are
interpreters of the law, not makers of new law.” In response to a question
on the relationship between judicial appointments and the abortion issue,
he had characterized Roe as a “usurpation of the legislative authority” and
had acknowledged that a potential judge’s views on the issue “might be
indicative of the way in which that judge would generally approach the
whole subject of judicial activism” (Meese, 1985, p. 44).
Meese soon had a chance to act on these goals. Less than a week after
Thornburgh came down, Chief Justice Burger announced his retirement.
Burger had informed the White House of his plans several weeks earlier,
and the administration moved quickly to elevate Justice Rehnquist to
chief and nominate D.C. Circuit Judge Antonin Scalia to fill Rehnquist’s
seat. Conservatives were thrilled with the president’s choices, as both
Rehnquist and Scalia were indisputable conservative ideologues. As indicated in Table 2, Jeffrey Segal’s widely used ideological coding of
Supreme Court nominees
relying on a content analysis of newspaper
editorials to arrange nominees on a conservative-to-liberal scale from
0 to 1, and conventionally referred to in the literature as a nominee’s
“Segal-Cover score”
places Rehnquist and Scalia significantly to the
right of O’Connor, with scores of .045, .000, and .415, respectively.17
After a bruising battle, the Republican Senate confirmed Rehnquist by a
vote of 65-33. With liberals having focused their opposition efforts on the
new chief, the 50-year-old Scalia secured confirmation without a dissenting vote.
Reagan’s 1986 appointments were transformative in a way that his
1981 appointment was not, but they would have no immediate effect on
the Court’s treatment of Roe, as the precedent’s five judicial supporters
remained on the bench. When Justice Powell retired the following summer, Roe’s fate did hang in the balance, but by that time, reproductive
rights advocates had made significant political gains. In the November
1986 elections, they defeated three statewide ballot initiatives that would
have banned public funding of abortions. Particularly noteworthy was
the Arkansas campaign, where abortion rights supporters came from
behind in the final two weeks, despite the absence of any support from
the state’s Democratic governor, Bill Clinton (Saletan, 2004, pp. 9 30).
Why Roe Still Stands
49
More importantly, the Democrats recaptured the U.S. Senate, thereby
erecting a significant barrier to President Reagan’s effort to remake the
Court.
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Divided Government, 1987 1992
Having lost control of the Senate, GOP leaders would now face significant
constraints on their judicial appointment agenda, but so long as they continued to occupy the White House, they maintained firm control of the federal government’s constitutional litigation, and their litigators continued to
call for Roe’s reversal.
To replace Powell, Reagan nominated Robert Bork, who was willing
and able to join Rehnquist and Scalia in transforming constitutional law.
As indicated in Table 2, Bork’s Segal-Cover score is almost as low as
Rehnquist’s and Scalia’s (.095), and inside the Reagan White House, he
was thought to be just as conservative (Greenburg, 2007, pp. 42 43).
Powell’s score had been only slightly higher (.165) at the time of his 1971
nomination, but by 1987, most Court-watchers agreed that he had turned
out more liberal than expected. Indeed, by the time of his retirement, he
was the Court’s swing justice, making him by definition the institution’s
Table 2. Supreme Court Nominees, 1981 2014.
Year
Nominee
Appointing
President
Confirmation
Vote
SegaCover
Score
1981
Sandra Day
O’Connor
William Rehnquist
Antonin Scalia
Robert Bork
Douglas Ginsburg
Anthony Kennedy
David Souter
Clarence Thomas
Ruth Bader Ginsburg
Stephen Breyer
John Roberts
Harriet Miers
Samuel Alito
Sonia Sotomayor
Elena Kagan
Reagan
99-0
.415
Reagan
Reagan
Reagan
Reagan
Reagan
Bush I
Bush I
Clinton
Clinton
Bush II
Bush II
Bush II
Obama
Obama
65-33
98-0
42-58
Withdrawn
97-0
90-9
52-48
96-3
87-9
78-22
Withdrawn
58-42
68-31
63-37
.045
.000
.095
.000
.365
.325
.160
.680
.475
.120
.270
.100
.780
.730
1986
1986
1987
1987
1988
1990
1991
1993
1994
2005
2005
2005
2009
2010
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THOMAS M. KECK AND KEVIN J. MCMAHON
fifth most liberal member. With Bork’s academic and judicial writings in
hand, Democrats launched an all-out challenge to what they saw as
President Reagan’s radical effort to reshape the Court. The opening salvo
came from Massachusetts Senator Ted Kennedy, who famously declared
that “Robert Bork’s America [wa]s a land in which women would be forced
into back alley abortions” (quoted in Bronner, 1989, p. 98). Abortion rights
groups played a prominent role in the campaign against Bork, though they
sought to focus the message on the nominee’s threat to the right to privacy
more generally, rather than the right to abortion in particular (Keck, 2004,
pp. 163 164; Saletan, 2004, pp. 42 56). With only 46 Republican Senators
(down from 53 in 1985 1986) the president’s allies were unable to overcome this opposition, and the Senate rejected Bork by a vote of 58 to 42.
In a sign of increasing congressional polarization on judicial nominations,
only two Democrats supported Bork.18
Refusing to back down, President Reagan chose a Bork protégé who
was just as conservative (with a Segal-Cover score of .000) and only 41
years old. But Douglas Ginsburg’s nomination was quickly derailed by
revelations of his recreational use of marijuana as a Harvard Law School
professor. Only after Ginsburg’s withdrawal did Reagan settle on a nominee unlikely to face a confirmation fight in the Senate, Ninth Circuit Judge
Anthony Kennedy. DOJ officials raised concerns about Kennedy’s “novel
claims of constitutional protection” and “easy acceptance of privacy
rights,” and longtime conservative activist Richard Viguerie said the mood
among his ideological brethren following the announcement was one of
“total anger and frustration.” For Viguerie, the nomination “was a total
surrender to the left.”19 But by this point, the administration’s options
were limited. As David Yalof notes, “[t]he next presidential election was
less than a year away, and … Senator Patrick Leahy … warned that if the
White House failed to produce a ‘readily acceptable’ nominee on the third
try,” the Senate would not consider another Reagan selection (1999,
p. 164). In the end, with conservatives acting as his loudest critics, the
Senate confirmed Kennedy by a vote of 97-0.
While social conservatives were disappointed with a second Reagan
nominee, most Court-watchers expected Kennedy, like O’Connor, to
emerge as a critic of Roe. If this prediction proved correct, the landmark
precedent might finally fall. The administration’s lawyers continued pushing hard for such a decision, while also taking steps to limit the potential
electoral fallout. For example, when the State of Missouri urged the
Supreme Court to review an Eighth Circuit decision invalidating several
provisions of the state’s abortion law, Assistant Attorney General
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Why Roe Still Stands
51
Reynolds worked behind the scenes to persuade state officials to challenge Roe directly. Prior to that point, the state’s lawyers had urged the
courts to uphold the statute within the confines of existing abortion law
(Savage, 1992, pp. 227 228). When the administration joined the case,
Solicitor General Fried filed yet another brief challenging Roe, but he
delayed its release until two days after the November elections
(Greenhouse, 1988).
In the wake of the election, however, Fried was willing to press the
administration’s pro-life agenda more openly. Not only had Vice President
George H. W. Bush defeated Michael Dukakis for the presidency, but prolife advocates had also made significant gains up and down the ballot. As
William Saletan notes, exit polls suggested that the abortion issue had
helped Bush more than Dukakis. In addition, abortion rights supporters
“lost two of [their] foremost allies in Congress, and pro-lifers swept referenda on abortion funding in Michigan, Colorado, and Arkansas” (Saletan,
2004, p. 61). In this political context, the Reagan and Bush administrations
alike were willing to reiterate their opposition to Roe. In the Reagan
administration’s November 1988 brief, Fried reminded the justices that
“[t]he United States has stated its views on this issue in our brief … in
Thornburgh …. [I]f the Court is prepared to reconsider Roe v. Wade, this
case presents an appropriate opportunity for doing so.” By the time the
Court heard arguments the following April, Bush had named former
Pennsylvania governor Richard Thornburgh as Attorney General. Bush’s
nominee for Solicitor General, Ken Starr, had not yet been confirmed, so
the pro-life Thornburgh called Fried back into service from Harvard Law
School to handle the administration’s oral arguments. Fried opened with
blunt words: “Thank you Mr. Chief Justice and may it please the court.
Today the United States asks this court to reconsider and overrule its decision in Roe v. Wade.”20
Once again, however, the Court chose not to take Fried’s bait. Kennedy
joined his fellow conservatives, but O’Connor was unwilling to provide the
fifth vote in support of the administration’s view. In what would become
her classic style, O’Connor cast the deciding vote to uphold the Missouri
abortion regulations, but she refused to join Rehnquist’s opinion urging
the abandonment of Roe. This refusal provoked an angry reaction from
Scalia, who complained that “[o]f the four courses we might have chosen
today to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio,
or to avoid the question
the last is the least responsible.” Appealing to
the passive virtues, O’Connor claimed that avoiding the question for now
was consistent with a “fundamental rule of judicial restraint.” Stoking
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THOMAS M. KECK AND KEVIN J. MCMAHON
conservative anger and frustration, Scalia responded by writing that
O’Connor’s argument “cannot be taken seriously.”21
Still, O’Connor’s separate opinion left open the possibility that she
would overrule Roe in some future case, and Justice Blackmun wrote a bitter dissent forecasting the ruling’s imminent demise. A wide variety of
Court-watchers from both sides of the debate echoed Blackmun’s prediction. Janet Benshoof, director of the American Civil Liberties Union’s
reproductive freedom project, noted that “[t]here is no longer a majority on
the Court to support Roe,” and a New York Times editorial declared that a
woman’s right to choose was “barely viable” (Editors, 1989; Greenhouse,
1989). From the other side of the ideological divide, former Reagan administration official Bruce Fein asserted that “pro-choice abortion groups suffered a judicial Dunkirk … The greatest significance of the Webster
decision is not so much its immediate impact but what it portends for
future abortion cases. With the possible exception of Justice Sandra Day
O’Connor, the Justices in the majority this week made clear their disdain of
the Roe decision.” And despite concerns about O’Connor, Fein believed
that in the end she would “likely abandon Roe” (Fein, 1989). Attorney
General Thornburgh agreed that the Court would “eventually … take
action that will have the effect of overruling” Roe (New York Times, 1989).
And perhaps most importantly, President Bush “welcome[ed]” the decision
by noting, “the Court appears to have begun to restore to the people the
ability to protect the unborn.” Bush added: “We continue to believe that
Roe v. Wade was incorrectly decided and should be reversed.”22
The ruling may have encouraged conservatives, but it appears to have
fostered a resurgence of public support for legal abortion as well. Before
the Court’s announcement of Webster, a bare majority of Americans supported Roe, indicating that they did not wish it to be overturned. After
Webster, such support rose above 60%.23 For the time being, however,
Republican leaders remained tied to their right flank, steadfast in their
opposition to Roe. In October 1989, Bush vetoed a bill to provide
Medicaid funding of abortion in cases of rape and incest. That same
month, Solicitor General Starr filed a brief in Hodgson v. Minnesota reiterating the administration’s position that “Roe was wrongly decided and
should be overruled” because there “is simply no credible foundation for
the proposition that abortion is a fundamental right.” Sensing an opening,
Starr explicitly disavowed the “undue burden” formulation advanced by
Rex Lee in 1982, urging the Court to apply the deferential rational basis
standard to virtually all abortion regulations, as Rehnquist had done in
Webster.24 Under this standard, Starr found no constitutional objection to
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Why Roe Still Stands
53
Minnesota’s requirement that minors seeking abortions first notify both of
their parents.
In November, two widely noted election results drew attention to the
political costs of this hardline position. In both New Jersey and Virginia,
Democratic gubernatorial candidates highlighted their support for abortion
rights late in the race to help close the gap in the polls and defeat their prolife Republican opponents. The abortion issue appeared to be particularly
important in Virginia, where Douglas Wilder became the first African
American to win a statewide election in the South since Reconstruction
(Saletan, 2004, pp. 84 107). Wilder’s election highlighted the fact that prominent actors on both sides were now running toward the center. He won
on the strength of his pro-choice message, but this message had a notably
moderate tone. Wilder explicitly supported parental consent laws throughout the campaign and at times suggested support for broader restrictions as
well. These stances infuriated leading abortion rights advocates, but they
showed that, properly framed, pro-choice Democratic campaigns could win
even in the South. The main issue, as Wilder framed it, was not his position
on abortion but his opponent’s. In the Republican primary, Marshall
Coleman had pledged opposition to abortion even in cases of rape and
incest. Coleman tried to back away from this pledge in the fall, but the
Wilder campaign repeatedly called attention to it (Saletan, 2004,
pp. 84 107). With both sides seeking the center in the electoral arena, there
would be strong incentives for the Court to follow.
When Hodgson came down in June 1990, the Court did just that, rejecting (once again) the Bush administration’s unyielding opposition to abortion rights, but continuing to allow some room for legislative regulation.
The Court struck down Minnesota’s two-parent notification requirement,
which O’Connor characterized as “the most stringent notification statute in
the country,” but upheld the state’s alternate statutory provision requiring
the same parental notification but presenting minors with a judicial bypass
option. Rehnquist, White, Kennedy, and Scalia voted to uphold both provisions, while Stevens, Marshall, Brennan, and Blackmun voted to strike
them both down. In a pattern that was fast becoming familiar, O’Connor
split the difference. In a separate case decided the same day, a six-justice
majority (with Stevens joining the conservatives) upheld Ohio’s one-parent
notification requirement, which included a judicial bypass provision. Scalia
filed brief opinions in both cases reiterating his view that “[t]he Court
should end its disruptive intrusion into this field as soon as possible.” But
in an emerging jurisprudential split among the Reagan appointees, both
O’Connor and Kennedy had begun to distance themselves from this
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54
THOMAS M. KECK AND KEVIN J. MCMAHON
position.25 The most significant feature of the Hodgson decision, in fact,
was that O’Connor invalidated an abortion regulation for the first time, a
development noted by Justice Brennan during the Court’s deliberations
(Schwartz, 1996, p. 400).
Just weeks after these decisions, Brennan announced his retirement.
With the Democrats still in control of the Senate, and with the 1987 Bork
fiasco and the 1989 gubernatorial elections fresh in his mind, President
Bush understood both the opportunity and the political difficulty he faced
in replacing the longtime liberal leader of the Court. According to a senior
advisor, the president wanted “an absolutely unquestioned conservative”
for his first selection to the Court, but he also wanted a “judge who is not
known as having a national position on the abortion issue, who is not
hard-core and clear on the issue of Roe v. Wade.” In other words, it would
be better if the nominee’s views on Roe were “a little fuzzed-up.” Robert
Dole, the Senate minority leader, agreed with this approach: “If you have
to have someone who wants to overturn Roe versus Wade, it’s going to be a
blood bath getting the nomination confirmed” (Dowd, 1990). Solicitor
General Starr was widely considered the most likely selection, but DOJ
conservatives unexpectedly vetoed him on the basis of some internal administration disputes and for fear that he would not be reliably conservative
enough (Greenburg, 2007, pp. 89 107). In the end, Bush chose First
Circuit Judge David Souter, who was quickly characterized as a “stealth
conservative.” As indicated in Table 2, Souter’s Segal-Cover score was
.325
placing him slightly to the right of Kennedy but well to the left of
Bork and Ginsburg
and President Bush hoped that his minimal paper
trail would enable him to avoid a Bork-like battle in the Democratic Senate
(Apple, 1990).
Understanding Bush’s Senate strategy and with assurances from the president’s conservative chief of staff John Sununu, conservative activists’
initial impressions of the Souter nomination were “cautiously optimistic.”
Viguerie said, “It appears that the President has kept his promise to
appoint conservatives to the Supreme Court. Unfortunately, we won’t
know for sure until Justice Souter has been on the bench for a year or so”
(Berke, 1990). After hearing Souter’s Senate Judiciary Committee testimony, however, conservatives’ concerns began to grow. In particular, eyebrows were raised when Souter responded to a question by praising Justice
Brennan as “one of the most fearlessly principled guardians of the
American Constitution that it has ever had and ever will have.” While not
surprised to hear Souter extol Brennan’s character, Bork found it “a little
odd” that the nominee praised the retiring justice’s “judicial philosophy.”
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Why Roe Still Stands
55
Conservative activist Pat McGuigan thought a baseball analogy best:
Rather than a homerun, the Souter nomination was more likely “a blooper
single” (DeParle, 1990). Within two years, conservatives would come to see
it as a strikeout of epic portions.
After being sworn in on October 9, Souter had to wait only three weeks
to hear his first abortion case, Rust v. Sullivan. The ACLU’s firstamendment challenge to the federal “gag rule” a set of 1988 regulations
prohibiting federally funded family planning projects from engaging in
counseling concerning (or referrals for) abortion presented a set of legal
questions pretty far downstream from the merits of Roe, but that did not
stop the Bush administration from urging once again that “Roe was
wrongly decided and should be overruled.” Evincing an unusually sustained executive opposition to the Court’s reading of the Constitution,
Solicitor General Starr argued that “the Court’s conclusions in Roe that
there is a fundamental right to an abortion and that government has no
compelling interest in protecting prenatal human life throughout pregnancy
find no support in the text, structure, or history of the Constitution.”26
When the decision came down in May 1991, O’Connor angered conservatives by voting to invalidate an abortion restriction for the second year in a
row, but her vote now proved irrelevant, with Souter joining Rehnquist,
White, Scalia, and Kennedy to form what looked like a new anti-Roe
majority. Writing for this majority, Rehnquist focused primarily on the
first-amendment and administrative-law issues in the case and offered no
view on the status of Roe itself, but he did advance a narrow reading of
Akron and Thornburgh.27
When the term ended a month later, Thurgood Marshall, the last
remaining liberal giant of the Warren Court years, announced his retirement. Marshall’s departure presented President Bush with yet another
opportunity to move the Court to the right, and the president’s selection of
Clarence Thomas to fill the vacancy was widely hailed by his conservative
supporters. Thomas’s perceived ideological score of .160 was higher (i.e.,
more liberal) than those of Rehnquist, Scalia, Bork, and Ginsburg, but
from the conservative perspective, it represented a significant improvement
over the last two Republican nominees (Kennedy and Souter). Indeed,
Thomas had earned a reputation in Washington as an unflinching conservative ideologue (Comiskey, 2004, pp. 104 133; Dowd, 1991).
Once Thomas joined the Court, conservatives were right to be optimistic
about overturning Roe. The Court was now packed with eight Republican
appointees, and the sole remaining Democratic appointee (Byron White)
had opposed Roe from the beginning. With Blackmun and Stevens the only
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THOMAS M. KECK AND KEVIN J. MCMAHON
known supporters of Roe, it appeared that the conservative bloc could suffer even two defections and still prevail. When the Court granted cert. in
Planned Parenthood v. Casey in January 1992, just three months after
Thomas had been sworn in, advocates on both sides were well aware of the
stakes involved. In the administration’s amicus brief supporting the state’s
restrictive abortion regulations, Solicitor General Starr put the question to
the Court once again: “As we explained in our briefs in Akron I,
Thornburgh, Webster, Hodgson, and Rust v. Sullivan, Roe v. Wade was
wrongly decided and should be overruled. We strongly adhere to that position in this case.”28
Once again, a Republican administration had asked the Court to reconsider the Roe ruling, and once again, four justices were willing to do so.
Joined by White, Scalia, and Thomas, Chief Justice Rehnquist declared,
“We believe that Roe was wrongly decided, and that it can and should be
overruled consistently with our traditional approach to stare decisis in constitutional cases.”29 But Rehnquist remained unable to find a fifth vote.
O’Connor, Kennedy, and Souter joined their conservative colleagues in
upholding most of Pennsylvania’s regulations, but they were unwilling to
discard Roe completely. They opened their jointly authored plurality opinion by noting, “19 years after our holding that the Constitution protects a
woman’s right to terminate her pregnancy in its early stages, that definition
of liberty is still questioned. Joining the respondents as amicus curiae, the
United States, as it has done in five other cases in the last decade, again
asks us to overrule Roe.” But O’Connor, Kennedy, and Souter were unwilling to go this far, instead declaring that “the essential holding of Roe v.
Wade should be retained and once again reaffirmed.”30
This betrayal of the conservative cause sparked yet another angry reaction from Justice Scalia. Noting that his own views on the matter were clear
from his prior opinions and that he need “not swell the United States
Reports with repetition of what I have said before,” Scalia nonetheless
filled 20 pages “respond[ing] to a few of the more outrageous arguments in
today’s [plurality] opinion, which it is beyond human nature to leave unanswered.” In a rhetorical move that would become common among abortion
opponents, Scalia repeatedly compared the Court’s abortion rights decisions to Dred Scott v. Sandford.31
In light of these dissenting arguments, President Bush’s reaction was surprisingly supportive, saying he was “pleased” with the Court’s “decision
upholding most of Pennsylvania’s reasonable restrictions on abortion.” To
Bush, the law supported “family values in what is perhaps the most difficult
question a family can confront.” He made no mention of the Court’s
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reaffirmation of Roe. Instead, he restated his position on the issue.32 Bush
may simply have been putting a positive spin on a decision that did, as he
noted, uphold most of the Pennsylvania law. But he may also have recognized the electoral benefits of aligning himself with the Court’s compromise. As the New York Times reported, the Court’s holding “took the edge
off a recurring Republican nightmare.” If the Court had overturned Roe,
“Bush would have faced a far more perilous election year,” with his
“staunch opposition to abortion” imposing a potentially “crippling” liability (Toner, 1992b; see also Toner, 1992a). In April, when the administration had submitted its brief calling for Roe’s demise, the president was
facing a surprisingly tough primary challenge from the right by Pat
Buchanan. Therefore, making an appeal to social conservatives with a
strong challenge to Roe was the smart political move. By the time the
Court handed down the decision in late June, however, Bush was priming
for the general election, still depending on the GOP’s core conservatives
but also needing suburban voters turned off by his party’s traditional
stance on abortion.
Even with the Court’s help, Bush found it difficult to appeal to both of
these groups at the same time. He took several steps to distance himself
from the GOP’s platform, which once again declared that “the unborn
child has a fundamental individual right to life which cannot be infringed.”
Shortly after the convention, for example, he told a group of voters, “I’m
not going to necessarily be bound [by the Republican platform]. I’m the
President. I’ll say what I’m for and what I’m against.”33 He also regularly
emphasized that he supported legal abortion in cases of rape or incest, or
when the life of the mother was threatened, and he was careful to avoid a
mistake he had survived four years earlier, when he had suggested in a
debate with Dukakis that women who have abortions would have to face
criminal “penalties.” In addition, First Lady Barbara Bush let it be known
that, like many suburban voters, she was a pro-choice Republican (Stanley,
1992), and even Vice President Dan Quayle, selected in 1988 to add conservative credibility to the ticket, offered a measured position on the matter.
Responding to a hypothetical question about his daughter, Quayle said
that he would support her decision to choose an abortion, though he would
counsel her against it (New York Times, 1992). The New York Times editorialized that the vice president “forgot momentarily that he is a politician,”
but the Times may have missed the point (Editors, 1992, A24). In the same
week that Quayle made his comments, the president offered a very similar
response to a hypothetical question about his granddaughters. David
Keene of the American Conservative Union thought the three
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THOMAS M. KECK AND KEVIN J. MCMAHON
statements by the president, vice president, and first lady were orchestrated. “If just Quayle had said something, you could look at it as an accident. But with three comments like that in succession, you know it’s a
deliberate plan” (Apple, 1992). By running to the center, the Bush campaign hoped to capture the median voter. After all, a Gallup poll taken just
after the Democratic Convention in July showed that a near majority of
registered voters (48%) thought abortion should be legal under certain circumstances, with only 15% indicating that it should be illegal across the
board, and 34% preferring that it be legal under all circumstances. Another
poll taken right before the Republican Convention showed far more voters
supporting Roe (60%) than wishing for its end (34%).34
Even while pivoting to the center, however, Bush continued to reassure
his base that he was on their side. Addressing the Knights of Columbus a
few weeks before the Republican convention, he called attention to the
“national tragedy [represented by] more than a half a million abortions in
this country every year …. Seven times I have ignored the polls and acted
on what I believed is fundamental principle and vetoed … abortion legislation. And I promise you again today, no matter the political price, and
they tell me in this year that it’s enormous, I am going to do what I think is
right. I am going to stand on my conscience and let my conscience be my
guide when it comes to matters of life.”35 Bush hoped that the Court’s equivocal holding in Casey had muddied the waters enough to allow him to
continue making promises in both directions, but even with the Court’s
help, he never fully escaped the impression that a vote for him was a vote
to overturn Roe. That impression helped him with his base, but it may
have cost him the election (Abramowitz, 1995).
In sum, from 1987 to 1992, Reagan/Bush litigators remained free to pursue a conservative constitutional agenda in court. They did so aggressively,
often backed by rhetorical support from the White House, though that support wavered when the potential electoral costs appeared to rise.
Meanwhile, Democratic control of the Senate constrained the GOP’s judicial appointment efforts, leaving the Court with a bare majority that
remained unsympathetic to the litigators’ aggressive calls for legal change.
The Politics of Preemption, 1993 2000
Democratic presidential nominee Bill Clinton proved more successful than
Bush at finding the broadly acceptable middle ground, capturing public
sentiment quite nicely with his declaration that abortion should be “safe,
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legal, and rare.”36 The Clinton campaign may have emphasized “the economy, stupid,” but the abortion issue appears to have caused a significant
number of pro-choice Republicans to defect
far more than the number
of pro-life Democrats who defected the other way (Abramowitz, 1995).
Clinton’s abortion stance was just one example of his successful practice of
the “politics of preemption,” borrowing just enough of the governing
party’s policy positions and political rhetoric to temporarily wrest the
White House from their control (Skowronek, 2008, pp. 105 113; see also
Whittington, 2007, pp. 161 162). Once in office, however, preemptive presidents generally face extraordinary political constraints and are often
unsuccessful in advancing their party’s policy priorities or electoral fortunes. So while Clinton’s election raised the hopes of abortion rights advocates nationwide, his political authority was insufficient to satisfy these
hopes. With unified Democratic control of Congress and the White House
for the first time since 1980, these advocates came to Washington with an
ambitious legislative agenda, hoping to codify abortion rights in federal
statute, repeal the Hyde Amendment’s prohibition of federal funding for
abortions, and provide abortion coverage under Clinton’s health care plan.
But Clinton had been elected as an abortion moderate, and as Saletan
notes, the pro-choice legislative agenda failed on almost every front (2004,
pp. 218 229).37
Still, having an ally in the White House allowed reproductive rights
advocates to thwart many of their opponents’ efforts for eight years, with
Clinton using all the powers of the presidency to play defense on behalf of
his partisan base. In his first days in office, he rescinded several antiabortion executive orders dating to the Reagan era, and later that year, he
appointed longtime women’s rights advocate Ruth Bader Ginsburg to
replace one of Roe’s original dissenters (Byron White). The following year,
he replaced Roe’s 85-year-old author with Stephen Breyer, who joined
Ginsburg as a vigorous defender of abortion rights. After the GOP
captured both houses of Congress in November 1994, abortion rights supporters became even more reliant on executive power. During his second
term, Clinton twice vetoed a federal ban on “partial-birth abortion,” and
when 30 states enacted similar bans, Clinton’s Justice Department joined
the constitutional challenge to these laws.
Despite these vigorous efforts by the administration, the partial-birth
issue was a losing one for abortion rights advocates. Seeking to capture the
political center, Republican leaders made no serious effort to overturn Roe
during the Clinton era. Even after taking control of Congress for the first
time since Roe
indeed, the first time since the mid-1950s
Republican
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THOMAS M. KECK AND KEVIN J. MCMAHON
lawmakers championed only legislative restrictions that fell far short of a
total ban. The median voter supported virtually all of these restrictions,
and some of them had bipartisan support in Congress. For example, the
partial-birth ban vetoed by President Clinton in April 1996 received 72
Democratic votes in the House and nine in the Senate, and its proponents
fell just nine votes short (in the Senate) of overriding the veto. The following year, the number of Democratic supporters increased to 79 and 13, and
Congress came within three votes of overriding Clinton’s veto, again falling
just short in the Senate. It is easy to understand why the legislation
attracted so much support in Congress. According to Gallup, 71% of
Americans favored the ban in July 1996, as did 55% in March 1997 and
59% the following November.38
With the 2000 election approaching, Clinton’s Justice Department joined
the pro-choice groups when their constitutional challenge to the state
partial-birth abortion bans reached the Court in Stenberg v. Carhart
(Carhart I). With its governor in the race for the presidency, Texas submitted a brief on the other side, insisting that Nebraska’s statute did not
regulate abortion but rather, like Texas’s own law, merely prohibited “the
killing of a child during birth.”39 On the campaign trail, Governor George
W. Bush echoed the brief’s contention that partial-birth abortion was
immoral, but he was more reticent on the matter of overturning Roe.
Indeed, during the Republican primaries, Bush attracted attention in Iowa
when he answered a reporter’s question “about how he would respond to a
friend who had been raped and was considering an abortion by saying, ‘It’s
up to her’” (Henneberger, 2000). His closest rival in Iowa, Steve Forbes,
attacked him on this point: “Bush won’t give a real answer on Roe v.
Wade. He ducked on that and he ducked on the judges.” In response, Bush
offered only a mild rejection of the ruling: “Roe v. Wade was a reach. It overstepped the Constitutional bounds, as far as I’m concerned.” Reporting for
the New York Times, Frank Bruni suggested that Bush “clearly did not want
to elaborate, his body tensing and his voice assuming a slightly perturbed
edge as reporters continued to press him for greater clarity.” To Bruni, this
tension was a continuation of the “hazy signals” the governor had sent
“about the degree of passion he brings to the issue of abortion, simultaneously conveying a deep personal disapproval of it and a disinclination to
put it anywhere near the top of his political priorities” (Bruni, 2000). The
next day, Bush offered a slightly clearer picture of where he stood, stressing
that “it should be up to each legislature” (Bruni & Wayne, 2000).
In June 2000, the Supreme Court sided with the Clinton administration
and against Governor Bush on the constitutionality of state partial-birth
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bans. Joined by Rehnquist and Scalia, Thomas published a lengthy dissent
arguing that the Nebraska law did not impose an undue burden as defined
by Casey. He prefaced this discussion by reiterating his view that “the
Casey joint opinion was constructed by its authors out of whole
cloth, … that it has no origins in or relationship to the Constitution and is,
consequently, as illegitimate as the standard it purported to replace.” In
case this was not sufficiently clear, Rehnquist and Scalia each wrote separately to note that Casey was “wrongly decided” and “must be overruled.”
Most significant, however, was Kennedy’s dissenting opinion. Carhart I
was the Court’s first direct engagement with the abortion issue since Casey,
and during that time, Clinton’s appointments had appeared to increase the
Court’s pro-Roe bloc from five justices to six. But by abandoning his colleagues from the Casey decision, Kennedy raised some doubts, especially
since his dissent opened with a lengthy and graphic description of the abortion procedure at issue and ended by noting that “many decent and civilized people find [it] so abhorrent as to be among the most serious of
crimes against human life.”40 Unlike his fellow dissenters, Kennedy did not
call Casey into question, and there was no reason to suppose that he had
changed his mind on the merits of that decision. Still, the tone of his opinion left abortion rights supporters uneasy (Greenhouse, 2000).
Clinton, of course, praised the Court’s decision
noting that it was
consistent with his recent vetoes and that he would “continue to veto any
legislation restricting late-term abortions that lacks a health exception or
otherwise unduly burdens a woman’s right to choose.”41 Even more
revealing were the responses of the two men seeking to replace him in
the Oval Office. Vice President Gore used the opportunity to remind
voters of the closeness of the Court’s divide, warning that the next president would select “at least three and maybe four justices” who would
ultimately determine the fate of abortion rights. For Governor Bush, the
decision was not about the future makeup of the Court, but about the
“brutal practice” of partial-birth abortion. Writing for the New York
Times, Richard Berke noted that the differing remarks reflected the “contrasting strategies” of the two campaigns: “The Bush strategy is to make
the abortion issue go away …. Mr. Gore wants to do whatever he can to
keep the matter alive …. In fact, Gore officials have been waiting gleefully for months in anticipation of today’s decision” (Berke, 2000). But
while the Gore campaign hoped that Carhart I would spark a public discussion of Roe’s fate, the Bush campaign recognized that it might just as
well provoke discussion of a specific abortion procedure that was widely
condemned by voters.
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THOMAS M. KECK AND KEVIN J. MCMAHON
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A Nation Divided, 2001 2004
After Bush’s victory secured with the help of the Court’s five most conservative justices in Bush v. Gore (2000) further conflict on the abortion
issue was almost certain. The Court was closely divided in Carhart I, but
the five-justice majority had sent a clear signal that it remained unwilling to
allow this sort of legislative restriction. Most federal judges heard the signal,42 but Republicans, controlling the presidency and both houses of
Congress for the first time since the 1950s, chose to ignore it. Still, the
party’s hold on these institutions was tenuous. After all, Bush had lost the
popular vote, winning the Electoral College only after the Court’s controversial intervention in the electoral recount in Florida, and Republicans
had just a nine-seat majority in the House. The Senate was evenly divided
(with Vice President Dick Cheney casting the tie-breaking vote), and in
June 2001, the Republicans lost control of the chamber when Senator
James Jeffords of Vermont quit the GOP and caucused with the
Democrats. Over the next year and a half, the Republican House repeatedly passed anti-abortion bills, but the Democratic Senate prevented all but
one of them from becoming law. The one exception was the Born Alive
Infants Protection Act, signed by President Bush in 2002, which provided
legal protection to babies born alive during an attempted abortion.
After Republicans regained control of the Senate following the 2002
midterm elections, Congress enacted a partial-birth abortion ban for a
third time. By failing to provide an exception for maternal health, Congress
offered a direct challenge to the Court’s holding in Carhart I. Unlike his
predecessor, President Bush signed this bill into law. The following year,
Bush signed the Unborn Victims of Violence Act, which imposed federal
criminal penalties for killing or injuring a “child in utero” during the commission of a violent crime. In signing these bills, Bush repeatedly appealed
to the Declaration of Independence to support his effort “to build a culture
of life, and make this a more just and welcoming society.”43 What he did
not do was call for the reversal of Roe. Indeed, shortly before signing the
partial-birth bill in 2003, he observed: “I don’t think the culture has changed to the extent that the American people or the Congress would totally
ban abortions.”44 And in a remarkable display of message discipline, Bush
never publicly uttered the word “Roe” during his eight years in office.45
Campaigning for reelection in 2004, Bush continued to note his support
for a “culture of life,” but he regularly ducked questions about Roe’s ultimate fate. Building on the partial-birth strategy, he touted his signing of
the Born Alive Infants Protection Act and the Unborn Victims of Violence
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Act and his promotion of a variety of other legislative measures that fell
far short of outlawing abortion. When the abortion issue was raised in two
of his three debates with John Kerry, Bush responded each time by saying
that he wanted to “promote a culture of life” and by highlighting his opposition to the “brutal practice” of partial-birth abortion.46 When asked
directly whether he “would like to overturn Roe v. Wade,” he responded
only that he would have no litmus tests in selecting federal judges.47 When
asked about what type of justice he would choose for the Supreme Court,
Bush said he “would pick somebody who would strictly interpret the
Constitution.” Signaling his social conservative supporters with their favorite analogy, he added that his judicial appointees would refrain from decisions based on “personal opinion” like Dred Scott v. Sandford.48 After the
debates, Bush continued to highlight his support for the partial-birth ban,
but he remained silent on whether Roe should be overturned.49
Practicing what Stephen Skowronek calls “the politics of articulation,”
Bush faced the classic dilemmas of a president seeking to fulfill the hopes
and dreams of a long-governing coalition without overreaching so far as to
provoke an electoral backlash. During his first term, his effort to balance
his party’s ideological commitments and political calculations regarding
abortion was aided by the lack of any vacancies on the Supreme Court.
Given his party’s narrow control of the elected branches
even after the
2002 midterms, the Republicans had just 51 Senate seats
Bush would
likely have faced a significant confirmation fight if he had selected an antiRoe nominee, but would have alienated his base if he did not. With no
vacancies in his first term, he was able to avoid this dilemma for the time
being.
Another Short-Lived Mandate, 2005 2006
Writing in 2003, Tushnet noted that the constitutional jurisprudence of the
Rehnquist Court was likely to continue to reflect the conflicted politics of
the era of divided government in which it operated, but that it was possible
that a period of “briefly unified government” might enable the conservative
movement to achieve more fundamental constitutional change (2003,
pp. 63 64). This window did indeed open following President Bush’s
reelection in 2004. In addition to Bush receiving a clearer electoral
mandate
with 50.7% of the popular vote, as compared to 47.9% four
years earlier, and an Electoral College victory unaided by the Court the
Republican Party picked up four seats in the Senate. With 55 votes, Senate
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THOMAS M. KECK AND KEVIN J. MCMAHON
Republicans were determined to overcome the Democratic minority’s
repeated use of the filibuster to block confirmation of the president’s judicial nominees. In addition, pundits had famously dubbed November 2004
the “moral values election,” based most importantly on an exit poll in
which 22% of voters declared “moral values” as the “most important
issue” facing the nation (topping the list of seven choices). Notably, 80%
of those moral values voters supported Bush. Professional political scientists immediately sought to debunk this interpretation (see, e.g., Fiorina,
Abrams, & Pope, 2006), but religious conservatives spun it as a mandate
for bold action by the White House. And indeed, on the abortion issue, the
exit polls did suggest a modest increase in pro-life sentiment.50 Given this
increased public support and their firm control of the presidency and both
houses of Congress, some Republicans concluded that they could now push
more aggressively against Roe.
For the early months of Bush’s second term, the White House was
focused on other issues, but when Justice O’Connor announced her
retirement in July 2005, the president allowed conservatives inside and
outside the administration to more or less veto any potential nominee
with known prior support for abortion rights. Bush himself probably
cared more about the future Court’s handling of constitutional disputes
regarding the scope of executive power during wartime, as did Vice
President Cheney, who played an active role in the selection process
(Gellman, 2008, pp. 358 360; Greenburg, 2007, pp. 185 211). On this
front, Bush’s first choice seemed eminently reliable. As indicated in
Table 2, D.C. Circuit Court Judge John Roberts was quite conservative,
with a Segal-Cover score of .120; he had served in the executive branch
throughout most of the Reagan and George H. W. Bush years; and he
had recently joined a decision siding with the Bush administration on the
president’s authority to detain alien enemy combatants in the war on terrorism.51 The D.C. Circuit announced this decision on July 15, and the
White House announced Roberts’s nomination to fill O’Connor’s seat
four days later. But even if abortion was not the administration’s top
priority, conservatives successfully blocked at least one candidate who
seemed reliable on questions of executive power but not on abortion and
other social issues
namely, Attorney General Alberto Gonzales
(Greenburg, 2007, pp. 188, 225 226, 245 247). Indeed, social conservatives had often joked during Bush’s tenure in the White House that
“Gonzales” was Spanish for “Souter.” The president’s decision not to
consider Gonzales suggests that any hint of prior support for abortion
rights now represented an absolute bar to nomination
marking
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a significant change since 1981, when Reagan selected O’Connor despite
much clearer hints in this regard.
Still, the administration continued to face competing political priorities.
A search for candidates who were openly determined to reverse Roe
would have provoked a firestorm in the Senate. As such, Bush continued
to avoid any public mention of the decision, and when Solicitor
General Paul Clement filed the administration’s first abortion brief in
August supporting a constitutional challenge to New Hampshire’s parental notification law he made no mention of Roe’s ultimate validity either.
The case turned on a much narrower question, but that fact had never
stopped Clement’s Republican predecessors from noting their opposition
to Roe. Here, Clement focused on how broadly to interpret Carhart I, sharply challenging the First Circuit’s holding that the precedent required all
abortion regulations to include a health exception. As Clement noted, such
a reading of Carhart I would doom the recently enacted federal partialbirth ban.52
In this political context, the Roberts selection worked well. Roberts’s
unwillingness to commit himself to “a comprehensive philosophy about
constitutional interpretation” raised some suspicions among conservatives
within the administration, including White House Counsel Harriet Miers
and Senior Advisor Karl Rove, but they were eventually reassured that he
was no Souter (Greenburg, 2007, pp. 191 193). When Chief Justice
William Rehnquist died in early September, President Bush chose to renominate Roberts for the Court’s center chair, a switch that smoothed his
confirmation. After all, since Roberts was now replacing the Court’s conservative chief rather than its centrist swing justice, he could not (from the
Democrats’ perspective) make things any worse. Impressed by his stellar
credentials, his vast knowledge of contemporary constitutional law, and his
professions of a modest judicial role, 22 Democratic Senators joined all of
their Republican colleagues (and Independent James Jeffords) in voting for
his confirmation.53
Four days after the Senate’s vote on Roberts, Bush chose his own
White House Counsel to fill O’Connor’s seat. Despite the president’s public assurances of Miers’s commitment to conservatism, his partisan base
rebelled and he suffered the literally unprecedented fate of having a high
Court nominee rejected by his own party. As with Reagan 24 years earlier, Bush’s options were severely constrained by his determination to
name a woman, or possibly a Latino man; “No white guys,” Chief of
Staff Andrew Card reportedly told Miers, when she was still shepherding
the selection process rather than emerging from it. Administration
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THOMAS M. KECK AND KEVIN J. MCMAHON
officials considered a long list of female lawyers and judges and a short
list of Latinos, but each name on these lists was ruled out, generally
because of opposition from conservatives (Greenburg, 2007,
pp. 245 253). Most conservatives were supporting Samuel Alito or
Michael Luttig, but according to Jan Crawford Greenburg’s account,
Bush was obsessed with his father’s “Souter mistake”; because he had
known Miers so well and for so long, he was confident that her conservatism would not waver over time. It was this confidence that he signaled
when announcing her nomination on the first Monday in October: “I’ve
known Harriet for more than a decade. I know her heart. I know her
character” (Greenburg, 2007, pp. 263 266). When Bush first floated
Miers’s name, prominent conservatives inside and outside the administration signed off on the choice, but a few days before the nomination was
announced, Attorney General Gonzales’s chief of staff, Kyle Sampson,
complained about Miers’s qualifications and predicted a conservative
revolt. By this time, however, Bush had already decided (Greenburg,
2007, pp. 266 268; see also McMahon, 2008).
The president’s Monday morning announcement sparked conservative
opposition within hours, with Bill Kristol of the Weekly Standard leading
the way and prominent judicial conservatives piling on. Bork called the
nomination “a disaster on every level” and “a slap in the face to the conservatives who’ve been building up a conservative legal movement for the
last 20 years.”54 While Bush saw the Miers choice as the antithesis of the
Souter nomination
because he, unlike his father, knew the nominee so
well
many conservatives saw it as a similar effort to find someone so
unknown as to make Senate opposition difficult.55 (Indeed, Democratic
minority leader Harry Reid originally suggested Miers as a possibility,
and promised the president his support (Toobin, 2007, p. 283).) Only this
time
with the president’s reelection mandate behind them and with 55
Republicans in the Senate conservatives were unwilling to trust another
Bush nominee about whom they knew very little. Frantically trying to
shore up support among social conservatives, Bush loyalists went so far
in issuing assurances that Miers would vote to overturn Roe (among
other things) that they provoked renewed opposition from judicial conservatives who were “offended by the suggestion that Miers’s religious
views or personal loyalty to Bush would cause her to vote the ‘right’ way
on the Court” (Greenburg, 2007, p. 273). These concerns were exacerbated over the next few weeks as Miers’s performance in her private
practice sessions with administration lawyers and in her meetings with
senators revealed her lack of familiarity with basic concepts of
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constitutional law (Greenburg, 2007, pp. 278 281). By this time, an
unshakable impression had emerged that Miers was either not conservative enough or, even if conservative, not capable enough to help lead the
Court. As indicated in Table 2, Segal’s ideological ranking for her was
.270, significantly more liberal than Roberts’s .120, but as with Judge
Edith Brown Clement
whose nomination had been rumored earlier in
the year
she was widely perceived as conservative but undistinguished
(Greenburg, 2007, pp. 207 208). Eventually realizing that his most
ardent supporters were unwilling to settle for this package, President
Bush dispatched Card and Deputy White House Counsel William Kelley
to suggest that Miers withdraw (Greenburg, 2007, pp. 282 284).
Quickly regrouping, administration officials went back to Plan A,
rewarding their base with a known conservative judge. Returning to his original list, Bush selected the man who had been a close second to Roberts
earlier in the year, Samuel Alito. Unlike Miers, Alito was seen as even
more conservative than Roberts Segal scored him at .100 and he had a
long and distinguished career as a federal appellate judge. In part because
he would be replacing swing Justice O’Connor, the confirmation process
proved more contentious for Alito than it had been for Roberts. But with
the 55 Senate Republicans nearly unanimous in support
all except
Rhode Island’s Lincoln Chafee
there was little Alito’s opponents could
do. Senator John Kerry sought to filibuster the nomination
as the
Democrats had successfully done with 10 federal appellate nominations
during Bush’s first term
but only 23 of his Democratic colleagues (and
Independent Jim Jeffords) supported this effort.
Alito’s confirmation was particularly noteworthy given his clear public
record of opposition to abortion rights. The first evidence to come to
light was his 1991 dissent in Planned Parenthood v. Casey. In the decision
eventually affirmed by O’Connor, Kennedy, and Souter’s joint opinion, a
Third Circuit panel had relied on Webster and Hodgson in upholding
most of Pennsylvania’s abortion regulations, but striking down the state’s
spousal notification requirement as an undue burden. In dissent, Judge
Alito had argued for upholding the latter requirement as well. Some
observers noted that in several other cases, Judge Alito had ruled in
favor of abortion rights, but since each of these holdings represented a
straightforward application of Supreme Court precedent, they did not
shed much light on his own views (Garrow, 2005; Richey, 2005). Even
more controversial was a 1985 job application Alito had submitted when
seeking a promotion in the Reagan Justice Department. Noting his longstanding “disagreement with Warren Court decisions,” the 35-year-old
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THOMAS M. KECK AND KEVIN J. MCMAHON
Alito summarized his most recent work as follows: “it has been an honor
and source of personal satisfaction for me to serve in the office of the
Solicitor General during President Reagan’s administration and to help
advance legal positions in which I personally believe very strongly. I am
particularly proud of my contributions in recent cases in which the
government has argued in the Supreme Court that racial and ethnic
quotas should not be allowed, and that the Constitution does not
protect a right to an abortion.”56 When this document came to light,
some Republicans expressed concern regarding the likely political fallout
(see Balz, 2005), and some Democrats thought they now had the smoking gun needed to block Alito’s confirmation. But things had changed
since the Bork hearings, and Republican senators, just like President
Bush, decided to reward their base. As legal analyst Jeffrey Toobin concluded, in 1987 “Bork couldn’t be confirmed because he opposed Roe v.
Wade; in 2005, a nominee couldn’t be selected unless he or she opposed
Roe v. Wade” (2007, p. 266).
The administration had successfully exploited a window of opportunity
to reshape the Court, but the window proved to be a narrow one. With
an aggressive plan to privatize Social Security, an ever more unpopular
war in Iraq, and a disastrous federal response to Hurricane Katrina,
Bush quickly spent the political capital he had earned in the 2004 election. He may also have overreached in promoting a culture of life, most
notoriously by signing an unusual private bill designed to compel the
reinsertion of Terri Schiavo’s feeding tube. The effort by Schiavo’s parents to keep her alive had become a cause célèbre among pro-life activists, and the president and the Republican Congress intervened on their
behalf despite substantial opposition to this action in national polls.
Throughout 2005 and 2006, moreover, Bush remained intransigent in his
opposition to embryonic stem cell research despite the disagreement of
the median voter and bipartisan congressional majorities. In November
2006, Republican congressional candidates were routed across the country, and abortion rights advocates claimed credit for a number of significant victories.57 In addition, the pro-life movement lost statewide votes
on parental notification initiatives in Oregon and California and on
embryonic stem cell research in Missouri. Even more notably, 56% of
South Dakota voters chose to repeal the near-total ban on abortion
enacted by the state legislature earlier that year. South Dakotans
supported this repeal despite having voted overwhelmingly for George W.
Bush in both the 2000 and 2004 presidential elections.
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A Return to Divided Government, 2007 2008
As with the last two-term Republican president, Ronald Reagan, Bush suffered an electoral backlash in the middle of his second term. As with so
many other elections since the 1980s, moreover, Republican elites faced a
clear tension between the principle of challenging Roe and the politics of
doing so. As if to call attention to this divide, the Supreme Court heard
arguments in Gonzales v. Carhart (Carhart II) on the day after the 2006
elections. By this time, 12 federal judges had ruled on the federal partialbirth ban, and 11 of them had found it unconstitutional under Carhart I
(Keck, 2014). Despite this record, Solicitor General Clement argued that
the Court could uphold the 2003 statute without unsettling any existing
precedents, and he urged the justices to do just that.
To this point, the Roberts Court had managed to avoid becoming
embroiled in the abortion controversy. The New Hampshire parental notification case had come down in January 2006 (in the midst of the Alito confirmation process), with a unanimous Court narrowly rejecting the
constitutional challenge to the statute but avoiding all the big questions.
That decision, Ayotte v. Planned Parenthood of Northern New England, had
been announced in an opinion by O’Connor
her final one on the
bench but with Alito now in her seat, the Roberts Court’s second foray
into the abortion conflict would prove far more contentious. When Carhart
II came down in April 2007, Alito reversed O’Connor’s decisive vote from
Carhart I, allowing Kennedy to write his 2000 dissent into law. Following
Clement’s lead, however, Kennedy claimed to do so without upsetting any
of the Court’s precedents. In the administration’s view, the federal partialbirth ban was constitutional under existing law because it “advances vital
state interests in protecting human life” and “imposes no undue burden on
a woman’s ability to obtain an abortion.”58 Kennedy agreed, seemingly
vindicating the administration’s strategy of restricting abortion access without challenging Roe.59 Thomas and Scalia reiterated their belief “that the
Court’s abortion jurisprudence, including Casey and Roe, has no basis in
the Constitution,” but Kennedy followed the administration’s line more
closely, and both Roberts and Alito joined his opinion without comment.60
The president responded by noting that “[t]he Supreme Court’s decision is
an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue
to work for the day when every child is welcomed in life and protected in
law.”61
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THOMAS M. KECK AND KEVIN J. MCMAHON
From one angle, the immediate policy implications of this second
partial-birth decision were quite limited. Kennedy took pains to emphasize
that the banned procedure, which he referred to as “intact dilation and evacuation” (or “intact D&E”), is quite rare; that the statute did not ban a
separate and more widely used D&E procedure that does not involve intact
delivery of the fetus; and that even the ban on intact D&E remained vulnerable to further legal challenges. But while he claimed merely to be applying
existing law, Kennedy’s holding seemed to depart from the Court’s precedents in two significant respects. As we noted at the outset, the Court had
long held that regulations promoting the government’s interest in fetal life
could be imposed only after fetal viability and that both pre- and postviability regulations must provide an exception for maternal health.
Kennedy’s opinion rejected both of these rules, and abortion opponents
were further encouraged by Kennedy’s adoption of the rhetoric of the contemporary pro-life movement to a far greater extent than any previous opinion of the Court. As Justice Ginsburg noted in dissent, Kennedy
repeatedly referred to a fetus as an “unborn child” or even a “baby,” and
referred to doctors “who perform abortions not by the titles of their medical specialties, but by the pejorative label ‘abortion doctor.’” Perhaps most
notably, Kennedy endorsed the longstanding pro-life claim that abortion
harms the women who choose it, often leading to “regret,” “severe depression,” and “loss of esteem.”62
Into the Wilderness? 2009 2014
While Carhart II gave renewed hope to abortion opponents, their political
fortunes quickly turned for the worse. In November 2008, Barack Obama
soundly defeated John McCain, and the Democratic Party captured its largest congressional majorities since 1980. After Republican Senator Arlen
Specter switched parties in April 2009 and Democratic Senator Al Franken
was sworn in (after a court-observed electoral recount) in July, the
Democrats had a filibuster-proof 60-vote caucus in the Senate.
Despite these electoral and partisan shifts, the GOP retained an ability
to engage in rear-guard actions in Congress, aided by the continued presence of more than 60 pro-life Democrats in the House (and a smaller number in the Senate). Without control of the congressional agenda,
Republican legislators were not in a position to enact free-standing antiabortion legislation, but where abortion politics intersected with important
Democratic priorities, they were able to wreak havoc. Most notably, in late
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2009 and early 2010, abortion opponents were nearly able to block the
enactment of the Patient Protection and Affordable Care Act, President
Obama’s signature domestic policy achievement. Only at the eleventh hour
did Representative Bart Stupak, a pro-life Democrat from Michigan,
agrees to a compromise that segmented abortion funding from the health
care overhaul just enough to allow the broader bill’s passage. Though prolife advocates did not win language as strict as they wanted, abortion rights
advocates were furious that a Democratic Congress and President had
enacted a health care bill that, on the issue of insurance coverage for abortion services, was worse than the status quo ante.
After Republicans recaptured the House in November 2010, they
quickly brought a wave of anti-abortion bills to the floor. Most notably, in
February 2011, the House approved an amendment introduced by Indiana
Republican Mike Pence that would have eliminated all federal funding of
Planned Parenthood. Similar votes continued throughout the year, but
given Democrats’ continued control of the Senate and the White House,
these efforts remained symbolic.
The November 2010 elections also witnessed significant Republican
gains at the state level, with the party gaining full control of the elected
law-making institutions in 22 states where those institutions had previously
been either divided or in Democratic hands. These newly Republican legislatures (along with a number of legislatures that had long been in
Republican hands) enacted a wave of newly restrictive abortion legislation.
All told, 30 states enacted one or more such statutes during President
Obama’s first term, with nine of these states going so far as to ban abortion
altogether after 20 weeks, on the (disputed) grounds of fetal capacity to feel
pain.63
Many of these new statutes have faced legal challenges from abortion
rights advocates, and it is likely that the issue will soon return to the
Supreme Court.64 Meanwhile, on the judicial appointment front, President
Obama successfully replaced Justices David Souter and John Paul Stevens
with Second Circuit Judge Sonia Sotomayor and Solicitor General Elena
Kagan, respectively, but the Republican Senate minority regularly and
repeatedly obstructed his efforts to staff the federal appellate courts. The
Republican caucus, which increased to 47 members after the 2010 elections,
and dropped back to 45 after 2012, filibustered or otherwise delayed confirmation of a long list of Obama judicial nominees, including some who had
broad bipartisan support. This conflict came to a head in November 2013,
when the GOP leadership refused to allow floor votes on any of three pending nominations for the D.C. Circuit, prompting Senate Majority Leader
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THOMAS M. KECK AND KEVIN J. MCMAHON
Harry Reid to employ what had come to be known as “the nuclear
option” that is, altering the Senate’s rules to prohibit filibusters of executive and judicial nominees other than Supreme Court justices. At the time
Senator Reid made this rules change, the federal judiciary was split almost
precisely down the middle between Democratic and Republican appointees.65 By the close of Obama’s second term, the federal courts will have
the largest Democratic majority since President Reagan’s first term.
At the Supreme Court, however, the balance of power on the abortion
issue remains for the moment locked in. The Court’s four most conservative members are unlikely to voluntarily leave the bench while Obama
remains in office, and three of those four are aged 65 or younger. But with
Obama in the White House, they have no prospect of finding a fifth vote in
the foreseeable future. As such, Roe’s fate remains in the hands of the
Court’s swing justice, Anthony Kennedy. His opinions in Carhart I and II
reveal his hostility to Roe, but he has given no indication that he is willing
to overturn it. Unless Kennedy changes his mind, the Republican assault
on Roe has run its course for now.
THE TRIALS OF ROE
The Rehnquist and Roberts Courts were (and are) indisputably a product
of the Republican regime. Republican appointees have held unbroken
majority control of the Court since June 1970, with that majority peaking
at eight justices from 1991 to 1994. As we noted at the outset, this
Republican Court had a range of options for addressing the question of
abortion rights. Among other things, it could have (a) maintained Roe’s
protection of a woman’s constitutional right to choose to terminate a
pregnancy and continued to invalidate most legislative efforts to interfere
with that right; (b) maintained some narrow core of the right, while
allowing a greater degree of legislative regulation; (c) overturned Roe,
returning the issue to the people and their elected representatives, with
the result that abortion would be banned altogether in an unknown
number of states; or (d) held that “the unborn child has a fundamental
individual right to life which cannot be infringed,” hence outlawing
abortion nationwide. Because the Court did not choose option (a), it is
clear that the Republican regime has succeeded in transforming abortion
law. It is more difficult, however, to explain how the Republican justices
chose among the remaining options. After all, it is option (d) to which
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the Republican platform has long been committed, and yet the justices
never seriously considered that path.
Why, then, does Roe still stand? Given contemporary patterns of divided
government (sometimes punctuated by short-lived partisan mandates), it
makes little sense to try to explain the Court’s decisions by reference to the
monolithic preferences of a stable governing regime. However the regime is
specified
the White House, the White House and DOJ, the presidential
administration and the Senate, the presidency and Congress as a whole it
is likely to be diverse and conflicted enough to leave the justices with some
room to maneuver among and across a variety of legal paths. The justices
are not likely to issue regular and repeated decisions that directly challenge
core commitments of either the regime in power or the one from which
they themselves were drawn (which will not always be one and the same).
But within these constraints, they will have a variety of possible decisions
from which to choose.
With a constant and persistent effort, a durable governing regime can
reshape the Court to a significant degree. For a variety of reasons, however,
such efforts are often difficult to sustain. As noted above, since 1980, the
national GOP platform has consistently called for Roe’s reversal by constitutional amendment and has almost always declared that the “right to life”
is guaranteed by the existing Constitution and called for the appointment
of federal judges “who respect … the sanctity of innocent human life.”66 In
their appointment decisions, however, Republican presidents only sometimes prioritized opposition to Roe, and only sometimes succeeded when
they did so. Of the 11 Republican Supreme Court nominees since 1980,
eight can plausibly be characterized as anti-Roe ideologues (though the case
is less than fully clear for some of them). But one of these eight represented
the elevation of a sitting associate justice to chief, and three others never
made it to the Court at all. In short, the nominations of Rehnquist, Bork,
Ginsburg, and Miers did not directly alter the Court’s disposition toward
Roe. Scalia, Thomas, Roberts, and Alito did alter the Court’s stance, but
O’Connor, Kennedy, and Souter did not toe the line. Each of these latter
three was expected by some Court-watchers to reverse Roe, but none of
them were nominated because they seemed willing to do so. O’Connor was
a non-ideological choice, selected by Reagan for electoral reasons. Kennedy
was, like Blackmun before him, a member of “the good old #3 club” the
third choice of a president whose first two choices had failed.67 And Souter
was the safe choice of a weak president trying to avoid a repeat of the Bork
fiasco. In short, the Reagan/Bush record on judicial appointments is one of
decidedly mixed success, at least insofar as abortion is concerned.
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THOMAS M. KECK AND KEVIN J. MCMAHON
The litigation activities of the executive branch are less directly constrained by divided government, but even here, presidents must pay heed to
the potential electoral costs of an aggressive pursuit of ideological commitments. As with their appointment decisions, the abortion-related litigation
efforts of the Reagan and Bush administrations have been inconsistent.
Republicans held the White House for 20 of the 28 years from 1981
through 2008. But only for one eight-year period 1985 to 1992 did the
DOJ directly call on the Court to reverse Roe. During the first of Reagan’s
terms and both of George W. Bush’s, Republican Solicitors General urged
the Court to uphold legislative restrictions on abortion but did so without
challenging the Court’s landmark precedent.
In short, on an issue as politically sensitive as abortion, Republican presidents have not always been willing to use the powers of the presidency to
insist upon doctrinal change. Even as the jurisprudential commitments of
Republican legal elites have become increasingly hostile to Roe, electoral
calculations have led Republican political elites to deemphasize rejection of
the ruling. In the absence of a more constant and insistent effort from the
governing regime, the Court is unlikely to overturn such an important precedent. The inconsistent effort on the part of Republican political elites left
the Republican-appointed justices divided amongst themselves. In the end,
judicial caution won out, and Roe was left weakened but still standing. Just
as the mid-twentieth century Court would have been less willing to launch
a civil rights revolution without the clear support of the Truman and
Eisenhower administrations, the late-twentieth/early-twenty-first century
Court was unwilling to launch a fetal rights revolution without the clear
support of the Reagan and Bush administrations.
One lesson of the abortion conflict is that this sort of clear support is
likely to be the exception rather than the rule. Absent a sweeping electoral
mandate, governing coalitions are likely to face some combination of
divided government, narrow majorities, or internal divisions that will prevent (or at least complicate) a full-scale effort to remake the Court. The
Republican presidents of the Reagan-Bush era never had the large congressional majorities that some of their Democratic predecessors from the New
Deal/Great Society era could count on. Even when the president’s party
does control the Senate, moreover, pushing too hard is liable to alienate
the median voter. If and when the president’s ideologues are on the verge
of capturing the Court, the political resistance will intensify. In this context,
presidents will sometimes choose to neglect the concerns of their partisan
base (and their own ideological commitments) in order to appeal to electoral majorities.
Why Roe Still Stands
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Given these political constraints, the Court at any given time is likely to
include a mix of ideologues and moderates. More often than not, it will
operate as an ally of the governing regime, but given the crosscutting
demands of party and policy, the justices will generally have multiple
acceptable options from which to choose (Keck, 2007a). In the absence of
an aggressive, consistent, and sustained demand from their partisan allies
in the political branches, the justices themselves will choose among those
options, guided by their own policy preferences, strategic calculations, and
jurisprudential commitments.
NOTES
1. See, in particular, Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Akron v.
Akron Center for Reproductive Health, 462 U.S. 416 (1983); and Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
2. Thornburgh, at 759.
3. Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007).
4. Indeed, this golden age may never have existed. After all, FDR confronted
profound internal tensions in its party and LBJ witnessed its sweeping electoral
mandate crumble within two years. Whether or not the development is new, we
argue that a variety of structural impediments have complicated the Republican
effort to remake the Court.
5. Ronald Dworkin has likewise argued that “[o]verruling Roe would not be
helpful to the national Republican Party” because it “would suddenly make abortion again an urgent national political issue for many millions of women who have
come to take for granted the right that women have enjoyed for two generations
and who now vote to express their views on other issues, often for Republicans”
(Dworkin, 2005). Writing around the same time, Sanford Levinson insisted that
“the last thing that Karl Rove desires is the return of abortion to the unfettered
world of politics, where the Republican Party would actually have to take responsibility for defining policies regarding reproductive choice instead of being able to
posture in the knowledge that the Supreme Court will invalidate many, perhaps
most, egregious limits on choice” (Levinson & Balkin, 2005). And Jeffrey Rosen
agrees, suggesting that “the best political gift that the Court could give to the prochoice majority in the nation might be to overturn Roe. If Roe were overturned, the
relative political weakness of the extreme pro-life position would be exposed, and
the Republican Party would be torn apart at the seams because many Republicans
oppose early-term bans and would desert the party in droves” (Rosen, 2006a,
p. 102; see also Rosen, 2006b).
6. However, at times when the president commands a broad coalition, he may
feel freer to act on both the legislative and administrative fronts, as with FDR’s
positioning toward southern Democrats on judicial matters (McMahon, 2004).
7. Republican Party platforms of 1980, 1984, and 1988. Available on line at
http://www.presidency.ucsb.edu/platforms.php
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THOMAS M. KECK AND KEVIN J. MCMAHON
8. Nevertheless, both FDR and Reagan easily fit the term “reconstructive president,” although as this example displays, Reagan possessed far less political authority than Roosevelt (Skowronek, 1993). On the notion of a Reagan regime, see also
Cook and Polsky (2005) and Skowronek (2011).
9. Brief for the United States as Amicus Curiae in Support of Petitioners, Akron v.
Akron Center for Reproductive Health and Planned Parenthood v. Ashcroft, 1981 U.S.
Briefs 746 (July 29, 1982), 4, 7.
10. Akron, at 452 458.
11. Akron, at 420.
12. Ronald Reagan, “Statement on the United States Supreme Court Decision
on Abortion,” June 16, 1983.
13. As Steven Teles (2009, p. 67) notes, Reynolds’s nomination for Associate
Attorney General was blocked in the Senate, but he “played a similar role without
the title,” while continuing to serve as Assistant Attorney General for Civil Rights.
14. Brief for the United States as Amicus Curiae in Support of Appellants,
Thornburgh (July 15, 1985), 45 48, 55 56.
15. Ronald Reagan, “Remarks to Participants in the 1985 March for Life
Rally,” January 22, 1985.
16. Akron, at 431 452; Thornburgh, at 760 764.
17. Segal’s updated scores are available online at http://www.stonybrook.edu/
commcms/polisci/professors/qualtable.pdf. See also Epstein and Segal (2005).
18. As McMahon (2007) has noted, previous nominees rejected by the Senate in
the twentieth century witnessed much less of a partisan divide in the votes against
confirmation.
19. Steve A. Matthews to Special Project Committee, May 23, 1986, at 7 8,
Reagan Presidential Library; Greenhouse 1987.
20. Oral argument transcript, Webster v. Reproductive Health Services (April 26,
1989). Available online at: http://www.oyez.org/cases/1980-1989/1988/1988_88_605/
argument
21. Webster v. Reproductive Health Services, 492 U.S. 490, 537, 532 (1989).
22. George H.W. Bush, “Statement on the Supreme Court’s Decision on
Abortion,” July 3, 1989.
23. In three polls conducted by Gallup in April, July, and October 1989, opposition to overturning Roe went from 51.2% to 58.2% and then to 60.5%. Note that
the question wording in the second two polls was slightly different than the first.
24. Brief for the United States as amicus curiae supporting respondents in
No. 88 1125 and supporting cross-petitioners in No. 88 1309, Hodgson v. Minnesota,
1988 U.S. Briefs 1125 (October 13, 1989), 17 18, 22 23.
25. The abortion decision from Ohio was Ohio v. Akron Center for Reproductive
Health, 497 U.S. 502 (1990). On the conservative justices’ emerging jurisprudential
split, note Michael H. v. Gerald D., 491 U.S. 110 (1989) and Cruzan v. Missouri
Department of Health, 497 U.S. 261 (1990).
26. Brief for Respondent, Rust v. Sullivan (September 10, 1990), 28 29.
27. Rust v. Sullivan, 500 U.S. 173, 202 203 (1991).
28. Brief for United States as Amicus Curiae Supporting Respondents, Planned
Parenthood v. Casey (April 6, 1992), 18. Starr’s claim here was misleading on one
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Why Roe Still Stands
77
point. As noted earlier, Solicitor General Lee had declined to call for Roe’s reversal
in Akron I.
29. Planned Parenthood v. Casey, 505 U.S. 833, 944 (1992).
30. Casey, at 843 846.
31. Casey, at 981, 984, 998, 1001 1002.
32. George H. W. Bush, “Statement on the Supreme Court Decision on
Abortion,” June 29, 1992.
33. George H.W. Bush, “Question-and-Answer Session in Secaucus,” Weekly
Compilation of Presidential Documents, New Jersey, October 22, 1992.
34. Gallup Polls taken from July 23 24, 1992, and August 13 14, 1992.
35. “Remarks to the Knights of Columbus Supreme Council Convention in
New York City,” Public Papers of George Bush, August 5, 1992.
36. Bill Clinton, “Acceptance speech at Democratic National Convention,” July
23, 1992.
37. The one exception was the Freedom of Access to Clinic Entrances Act, signed
by President Clinton in May 1994.
38. Gallup Polls taken from July 26 28, 1996, March 24 26, 1997, and
November 6 9, 1997.
39. Brief for the State of Texas as Amicus Curiae, Stenberg v. Carhart (filed on
February 28, 2000), 2.
40. 530 U.S. 914, 982, 952, 956, 979 (2000).
41. Bill Clinton, “Statement on the Supreme Court Decision on Partial Birth
Abortion,” June 28, 2000.
42. Note in particular two decisions immediately following the Court’s Carhart
holding in the summer of 2000. In Planned Parenthood v. Farmer, 220 F.3d 127 (3d
Cir. 2000), Circuit Judge Samuel Alito who had been appointed to the bench by
the first President Bush and would later be nominated to the High Court by the second President Bush
concurred in a decision striking down New Jersey’s partialbirth abortion ban. The holding, he noted, was compelled by Carhart I. Two days
later, in Richmond Medical Center v. Gilmore, 219 F.3d 376 (4th Cir. 2000), Circuit
Judge Michael Luttig
who had also been appointed to the bench by the first
President Bush and would later make it on to the short list of possible Supreme
Court nominees for the second President Bush
reached the same conclusion
regarding Virginia’s partial birth abortion ban.
43. “President Bush Signs Partial Birth Abortion Ban Act of 2003.” Available
online at: http://www.whitehouse.gov/news/releases/2003/11/print/20031105-1.html
44. George W. Bush, “The President’s News Conference,” October 28, 2003.
45. Our electronic search of the Weekly Compilation of Presidential Documents
from January 2001 through January 2009 revealed no mentions of the word “Roe”
by President Bush.
46. George W. Bush, “Presidential Debate in Tempe, Arizona,” Weekly
Compilation of Presidential Documents, October 13, 2004, at 2371; George W. Bush,
“Presidential Debate in St. Louis, Missouri,” Weekly Compilation of Presidential
Documents, October 8, 2004, at 2307. Transcripts for both are available online at:
http://www.debates.org/pages/debtrans.html
47. George W. Bush, “Presidential Debate in Tempe, Arizona,” at 2377 2378.
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THOMAS M. KECK AND KEVIN J. MCMAHON
48. George W. Bush, “Presidential Debate in St. Louis, Missouri.” For positive
responses from social conservatives to this statement, see Wallsten (2004).
49. See, for example, George W. Bush, “Remarks in Vienna, Ohio,” Weekly
Compilation of Presidential Documents, October 27, 2004, at 2628 2634.
50. The percentage of voters who indicated that abortion should be illegal in all
circumstances increased from 13% in 2000 to 16% in 2004, while the percentage
who indicated that abortion should always be legal fell from 23% to 21%). The
2004 exit polls are available online at: http://www.cnn.com/ELECTION/2004/
pages/results/states/US/P/00/epolls.0.html. See also McMahon (2005).
51. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
52. Brief for the United States as Amicus Curiae Supporting Petitioner, Ayotte v.
Planned Parenthood (August 8, 2005).
53. Despite these strengths, 22 Democrats still opposed him. Their opposition
represented a new level of polarization with regard to the Senate’s consideration of
Supreme Court nominees. In the previous century, any nominee who attracted
negative votes faced bipartisan opposition, even if the number of senators who
abandoned their president’s choice for the Court was small (McMahon, 2007).
54. “Bork Calls Miers Nomination a Disaster,” Interview with Tucker Carlson
on MSNBC, October 14, 2005. Transcript available online at: http://www.msnbc.
msn.com/id/9623345/
55. In an October 5 television interview, for example, Republican Senator Sam
Brownback compared Miers to Souter. “GOP Senator Concerned About Miers’
Abortion Views.” Available online at: http://abcnews.go.com/GMA/story?id=
1184984
56. “Personal Qualifications Statement” (November 15, 1985). Available online
at: http://news.findlaw.com/hdocs/docs/alito/111585stmnt.html
57. NARAL Pro Choice America reported that three pro-choice senatorial candidates defeated anti-choice incumbents, and that 23 new pro-choice members of the
House were elected as well. Press release available online at: http://www.prochoiceamerica.org/elections/2006/
58. Initial Brief for Appellant-Petitioner, Gonzales v. Planned Parenthood
(August 3, 2006), 9. See also Brief for Petitioner, Gonzales v. Carhart (May 22,
2006), and Reply Brief for Appellant-Petitioner, Gonzales v. Carhart and Gonzales v.
Planned Parenthood (October 25, 2006).
59. Gonzales v. Carhart (Carhart II), 550 U.S. 124, 150 160 (2007).
60. Carhart II, at 169. Clement also argued that if the Court found the federal
statute similar in relevant respects to the Nebraska ban, then the Court should overrule Carhart I. Kennedy held that this was unnecessary, since he was indeed able to
distinguish the two laws.
61. George W. Bush, “Statement on the Supreme Court Decision on PartialBirth Abortion,” April 18, 2007.
62. Carhart II, at 159, 186 187. On the 1990s emergence of the argument that
abortion harms women, see Siegel (2007).
63. These numbers were compiled from the Guttmacher’s Institute’s monthly
reports on state policy developments regarding abortion. Available online at: http://
www.guttmacher.org/statecenter/updates/index.html
Why Roe Still Stands
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64. Note, for example, Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013); Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506 (2013).
65. As of November 26, 2013, 389 active federal judges had been appointed by
Republican presidents, and 391 by Democrats. These numbers are drawn from the
Federal Judicial Center’s Biographical Directory of Federal Judges. Available
online at: http://www.fjc.gov/history/home.nsf/page/judges.html
66. The constitutional amendment provision has appeared without exception since
1980, the “right to life” provision has appeared without exception since 1984, and
the “sanctity of innocent human life” has appeared in each platform except for 1984.
67. The quoted phrase is from Justice Blackmun’s note welcoming Kennedy to
the Court in 1988 (Greenhouse, 2005, p. 189).
ACKNOWLEDGMENTS
We would like to thank Austin Sarat and an anonymous reviewer for helpful comments and suggestions.
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