Reversing Roe

Elliott Landy/Magnum PhotosAbortion rights demonstrators, New York City, 1968

It is impossible to understand American politics of the past half-century without taking abortion into account. The Brett Kavanaugh charade most recently, the machinations of the Republican Party more generally, and the infectious fundamentalism creeping into everyday life: all begin with abortion. Other issues may have been as divisive—civil rights comes to mind—but none has been as definitional. These days, the litmus test for Republicans running for political office or nominated to the judiciary is opposition to abortion. On the Democratic side, it is almost equally crucial to be pro-choice. Yet as the Netflix documentary Reversing Roe ably shows, this was not always the case.

Roe v. Wade, the Supreme Court decision establishing a woman’s constitutional right to terminate a pregnancy for any reason in the first two trimesters, and in the third trimester under certain circumstances, was issued in 1973. Seven justices affirmed the decision, with Harry Blackmun, a Nixon appointee, writing for the majority. If that seems strange to us now—a conservative justice on a conservative court invoking a right to privacy on behalf of women—it is because the alliance between the Right to Life movement and the right wing appears to us to be so close as to be preordained. But in the late 1960s and early 1970s, many Republicans were behind efforts to liberalize and even decriminalize abortion; theirs was the party of reproductive choice, while Democrats, with their large Catholic constituency, were the opposition.

Republican governor Ronald Reagan signed the California Therapeutic Abortion Act, one of the most liberal abortion laws in the country, in 1967, legalizing abortion for women whose mental or physical health would be impaired by pregnancy, or whose pregnancies were the result of rape or incest. The same year, the Republican strongholds of North Carolina and Colorado made it easier for women to obtain abortions. New York, under Governor Nelson Rockefeller, a Republican, eliminated all restrictions on women seeking to terminate pregnancies up to twenty-four weeks gestation. (Reversing Roe shows young women in Dallas boarding airplanes headed to these states.) Richard Nixon, Barry Goldwater, Gerald Ford, and George H.W. Bush were all pro-choice, and they were not party outliers. In 1972, a Gallup poll found that 68 percent of Republicans believed abortion to be a private matter between a woman and her doctor. The government, they said, should not be involved.

Perhaps more surprisingly, the right to abortion was forcefully supported and advanced by the Protestant clergy. The Clergy Consultation Service on Abortion (CCSA), which was established in 1967, not only counseled pregnant women about their choices, it enlisted physicians to perform abortions. One of these, who is featured in the film, was Dr. Curtis Boyd, a gynecologist and Baptist minister now in his eighties. He began his practice in Texas at the behest of the CCSA in 1968, fully aware that he was breaking the law. “Our role is to help [a woman] make a decision in the grace of God that she can live with,” Boyd told the Santa Fe Reporter and NM Political Report last year. He reckons he is the oldest abortion provider in the country. After the Roe decision, the CCSA opened the first legal abortion clinic in the United States, in New York City.

Roe v. Wade originated in Texas. (The named defendant, Henry Wade, was the Dallas district attorney at the time.) In the years after the Supreme Court decision, women were able to obtain abortion services at forty-one clinics across the state. Today that number is down to twenty-two, with clinics so far apart that some women have to travel three hundred miles to reach one. In ten Texas cities with more than 50,000 residents, there isn’t a single abortion clinic. In the country as a whole, 162 abortion clinics or medical facilities that perform abortions have closed since 2011.

So what changed? Why did those pro-choice Republicans repudiate their support for a woman’s right to choose? Why did the 1976 Republican platform support “the efforts” of those calling for a constitutional amendment to protect the “right to life” of the unborn? Why is it, as John Seago, the legislative director of Texas Right to Life, tells the filmmakers, that anyone running for any office in his state must declare their opposition to abortion if they hope to be elected? How is it that between 2011 and 2014, twenty-seven states enacted 231 abortion restrictions? And why did four states—Mississippi, Iowa, Kentucky, and Indiana—pass laws just this year that diminish, if not contravene, the rights established back in 1973?

Reversing Roe does an admirable job of teasing apart how the Republican Party used control of women’s bodies as political capital to shift the balance of power their way. We watch politicians like George H.W. Bush and Reagan disavow their earlier pro-choice positions during their presidential campaigns, and organizations like the National Right to Life Committee in the late 1960s, and Operation Rescue two decades later, insinuate themselves into the Republican Party. We see Catholic bishops in the 1960s politicizing their congregations through exhortations from the pulpit and voter registration drives after Mass designed to get parishioners to switch their affiliation from Democrat to Republican.

What we don’t see is Richard Nixon, under the sway of Pat Buchanan and Charles Colson, plotting an anti-abortion strategy to lure those Catholic voters away from the Democratic Party, or how Gerald Ford and his advisers furthered that strategy, cynically adding pro-life language to the 1976 Republican platform, assuming that it would be a temporary maneuver. Instead, it turned out to be the opening that enabled religious anti-choice advocates to begin to remake the party.

Even more sinister, perhaps, than this ploy by the Republicans were the racist origins of that agenda. As the historian of religion Randall Balmer explains in the film, evangelicals became politically active in the 1970s, when they were thwarted by the courts and the Internal Revenue Service in their efforts to obtain tax-exempt status for “segregation academies” like Jerry Falwell’s Lynchburg Christian School and Bob Jones University that heeded what they believed to be a biblical mandate to keep the races separate. Around the same time, Paul Weyrich, a Republican strategist, recognized the potential political power evangelical voters would have if they were to vote as a bloc, and tried to pull them into the fold with issues he thought might appeal to their moralism, such as the proliferation of pornography, the Equal Rights Amendment, and even abortion—which, prior to Roe, they were largely sympathetic toward and considered a Catholic issue.

Instead, as they began to organize against the government’s refusal to support segregated schools, Weyrich, who in the late 1970s was working on behalf of Reagan, saw his chance, though he understood that he—and they—would need an issue that had more popular appeal than outright racism. As Balmer puts it, “Weyrich says in effect, we’ve found our issue. Abortion is going to work for us as a political issue.”

Tanya Melich, a high-level Republican staffer who left the party when it began, as she called her book on the subject, the Republican war against women, explains:

It was a movement that said we were going to win the presidency through bigotry, but we are not going to come right out and say it…. They set out to change the dynamic in the Republican Party…. And they succeeded.

By 2009 only 26 percent of Republicans were pro-choice.

Since 2009, though, the number of Republicans who support abortion has inched up a bit. A Pew survey last year indicated that about 34 percent of Republicans believe abortion should not be illegal “in all or most cases.” Overall, 57 percent of Americans support abortion rights in all or most circumstances, as do 65 percent of people under thirty. These majorities are unlikely to matter, however, when challenges to Roe come before a newly realigned, anti-choice, conservative Supreme Court.

Those challenges, and the hundreds of constraints on abortions that have been enacted in the last few years, are just one part of a very effective strategy by the religious right to undermine Roe. Using the original ruling, which limited abortion as the pregnancy moved into the third trimester, anti-choice activists have underwritten a surfeit of increasingly restrictive laws in states across the country, knowing that eventually cases involving one or more of them will reach a receptive Supreme Court. In the meantime, they have created legal obstacles for women seeking to terminate their pregnancies and for health care providers who offer abortion services. These include, for instance, long wait times, “counseling” that talks about the fetus’s ability to feel pain, and a requirement that a woman look at her fetal sonogram as a doctor points out the fetus’s various developing body parts. A Texas law, now overturned, even dictated the width of clinic hallways. Additionally, the original trimester timetable in Roe has been scrapped in favor of a highly interpretable “fetal viability” standard, and states are now attempting to curtail abortion within a few weeks of conception, often before a woman knows she is pregnant.

“We’ve had a game plan for many years…and I think it’s coming to fruition,” Carol Tobias, the president of National Right to Life, tells the filmmakers. That plan has been to make the barriers to abortion so high that Roe will be nullified by default. For some anti-abortion activists, most notably those affiliated with Operation Rescue, it has also meant raising the stakes for health care providers to the point where it is no longer sensible or feasible for them to perform abortions. They have accomplished this by killing doctors in upstate New York, Florida, and, most famously, in a Kansas church; bombing abortion clinics in Florida, Tacoma, and Atlanta; setting fire to clinics in New Hampshire, Wisconsin, Florida, Virginia, and Alabama; and harassing health care providers and their families, often in their homes. (This is an abbreviated list.)

“The weak link in the abortion chain is the person doing the actual abortions,” Troy Newman of Operation Rescue says, standing in front of a map that marks all the clinics his organization has shut down. “We’ve been very effective in targeting particular abortionists. If they don’t have an abortionist, the place closes down…. We have probably closed down hundreds of abortion clinics, and it’s the one thing I’m most proud of.” Indeed, Newman and his cohort have been so effective that there are now seven states that have only one abortion provider each, with a number of Republican governors vying to be the first state with none. It is especially egregious to watch the disgraced former Missouri governor Eric Greitens, an adulterer and alleged sexual predator (although he has denied the allegations), pledging to eliminate abortion services in his state at a special “pro-life” session of the legislature.

It is also galling to watch Mike Pence calling for Planned Parenthood to be defunded—“Why do I have to pay for [abortion]?” he asks a crowd of supporters—since, by law, federal money is already prohibited from paying for abortion services, and to see Donald Trump exclaiming during a presidential debate that Hillary Clinton and her pro-choice minions would allow babies to be “ripp[ed] out of the womb of the mother just prior to the birth of the baby.” “I knew those were Donald Trump’s words,…not the words of some speechwriter,” says Tony Perkins, the president of the evangelical Family Research Council. “When he did that, I believe he sealed the deal with pro-lifers across the country.” This was crucial, Perkins explained, because to win, he estimated, Trump needed the votes of nearly 80 percent of evangelicals.

With those words, too, Trump was upping the ante on a popular and successful anti-choice rhetorical device, the so-called partial-birth abortion. “Partial birth” is a political term, not a medical one, invented to mortify even ardent abortion supporters with graphic language and illustrations of living babies being wrenched from their mother’s bodies and killed, even though 90 percent of abortions occur in the first three months of pregnancy, and only slightly more than one percent happen after twenty-one weeks, the outer edge of viability, typically because of a fetal anomaly. According to a report on National Public Radio back in 2006, when the Supreme Court added the contested Partial-Birth Abortion Ban Act of 2003 to its docket, some members of Congress tried to amend that law to limit the ban solely to viable fetuses, but “abortion opponents complained that would leave most of the abortion procedures legal.” Partial-birth abortion, as a talking point, “took off like wildfire,” Newman says. “We made it an issue. We forced it on America.”

The Supreme Court’s 5–4 decision in 2007 upholding the 2003 “partial-birth” act, along with Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 ruling that scrapped Roe’s trimester timetable and replaced it with the vague fetal viability standard, has become as foundational as Roe itself, as they circumscribe by law when a woman can terminate a pregnancy. Even so, despite the concerted efforts of the religious right and the Republican Party and their successful campaigns to neuter Roe, abortion remains, if only nominally in some states, a constitutional right.

“We are going to keep plugging away to overturn Roe v. Wade because we believe this country shouldn’t be killing its babies,” Carol Tobias says in Reversing Roe. “Our roadblock has always been the Supreme Court.” Until it no longer is.