For 40 years, a chorus of voices on the right has been clamoring for the repeal of Roe v. Wade, the 1973 Supreme Court decision that made abortion legal nationwide. Suddenly, Republicans and their allies don’t want to talk about it. What the hell is going on?
Profound dishonesty, obviously. But in many more ways than you might at first suppose.
Eighty-one percent of white evangelicals voted for an unrepentant, lifelong playboy and sexual predator because he promised them judges who would impose theocratic law, based on a make-believe "'biblical view’ that’s younger than the Happy Meal,” as Slacktivist blogger Fred Clark called it in 2012.
In 1968, the NRA supported gun control and evangelicals largely supported abortion. But the country was in flux for multiple reasons. Most dramatically, the civil rights movement helped fracture the foundations of the Democrats’ New Deal coalition, and Republicans took advantage of that, primarily by fomenting a culture war, with a new set of “moral issues” meant to give racially resentful whites a plausible framework for reclaiming the moral high ground and ignoring everything that didn’t fit their newly-minted faith. By the end of the 1970s, both the NRA and evangelicals had not just switched positions, they’d consigned their real pasts to the memory hole.
As author and researcher Fred Clarkson told Salon in January, historian Randall Balmer's book, "Thy Kingdom Come," "tells the story well. The Christian right was not originally animated by abortion, but by the defense of private, tax-exempt, racially segregated colleges and schools.” And as Steven Rosenfeld wrote here in 2013, “For nearly a century after its founding in 1871, the National Rifle Association was among America’s foremost pro-gun control organizations. It was not until 1977 when the NRA that Americans know today emerged” from a libertarian leadership coup.
That’s the big-picture, big-lie backdrop behind all the immediate and profound dishonesty on display today. But the anti-abortion duplicity warrants a closer examination. For evangelicals (rather than Roman Catholics), the entire premise of the moral crusade against Roe is utterly bogus. Here’s how Jonathan Dudley, author of "Broken Words: The Abuse of Science and Faith in American Politics," explained it on CNN’s Belief blog in 2012:
In 1968, Christianity Today published a special issue on contraception and abortion, encapsulating the consensus among evangelical thinkers at the time. In the leading article, professor Bruce Waltke, of the famously conservative Dallas Theological Seminary, explained the Bible plainly teaches that life begins at birth:
“God does not regard the fetus as a soul, no matter how far gestation has progressed. The Law plainly exacts: 'If a man kills any human life he will be put to death' (Lev. 24:17). But according to Exodus 21:22–24, the destruction of the fetus is not a capital offense. … Clearly, then, in contrast to the mother, the fetus is not reckoned as a soul.”
The magazine Christian Life agreed, insisting, “The Bible definitely pinpoints a difference in the value of a fetus and an adult.” And the Southern Baptist Convention passed a 1971 resolution affirming abortion should be legal not only to protect the life of the mother, but to protect her emotional health as well.
In fact, as I’ve noted before (here and here), conservative Catholic activist Paul Weyrich struck out when he first tried to interest Falwell and other evangelicals in the politics of abortion, school prayer and the rise of feminism. As reported by Max Blumenthal after Falwell’s death:
"I was trying to get those people interested in those issues and I utterly failed," Weyrich recalled in an interview in the early 1990s. "What changed their mind was Jimmy Carter's intervention against the Christian schools, trying to deny them tax-exempt status on the basis of so-called de facto segregation."
That’s when they suddenly got religion about politics — and got political about their religion. Dudley explains:
As evangelical leaders formed common cause with Catholics on topics like feminism and homosexuality, they began re-interpreting the Bible as teaching the Roman Catholic position on abortion.
Falwell’s first major treatment of the issue, in a 1980 book chapter called, significantly, “The Right to Life,” declared, “The Bible clearly states that life begins at conception. … (Abortion) is murder according to the Word of God.”
With the megawatt power of his TV presence and mailing list, Falwell and his allies disseminated these interpretations to evangelicals across America.
Welcome to the evangelical roots of fake news!
"The con-game of anti-abortion partisanship that replaced Christianity has been so successful that we forget how recently it was invented," Fred Clark wrote at Slacktivist this past week. “Evangelicals have a hierarchical system of morality. Abortion and gay marriage are the most important" issues in that system, he continued, and maintaining that hierarchy "is the function of evangelical abortion politics. And nothing is permitted to challenge that. Not even internment camps for toddlers. Nothing can be permitted to challenge that, otherwise it wouldn’t work. It wouldn’t serve its function of keeping white evangelicals in line, ensuring their perpetual partisan loyalty and their reflexive support for everything else and anything else done by anti-abortion politicians.”
That is the real political aim — securing the allegiance of followers. Once you start twisting your religion for political ends, there is literally no limit to how far you can take it. Which brings us to where we are today, with the very real prospect that Roe will be overturned, assuming President Trump gets his next nominee onto the Supreme Court.
Anti-abortion politics has long been a winner for Republicans, in part because most of the pro-choice majority simply took Roe for granted, assuming it would always be there. They didn’t prioritize voting on that issue, which gave disproportionate electoral power to Roe’s more obsessively focused opponents. But the popularity of demonizing abortion to the GOP base contrasts dramatically with Roe’s broader popularity. Two-thirds of Americans oppose overturning Roe, according to a recent Kaiser Family Foundation poll, and Pew has reported similar findings stretching back for years.
From this, three things follow: First, it’s quite likely Roe will be overturned indirectly or “informally,” as Leah Litman explains. Overturning Roe in effect, but without saying so, would be another form of decades-old right-wing dishonesty.
Second, no prospective justice will speak honestly about it — they haven’t done so for decades now. Instead they’ll tell broader lies, about “calling balls and strikes,” about following precedent or about the original meaning of the Constitution.)
Indeed, the ultimate goal of conservative judicial activism is the complete reversal of the New Deal and the Progressive Era that preceded it. The Citizens United ruling, for example, attacks the tradition of prohibiting corporate campaign influence dating back to the 1907 Tillman Act.
One key element of that historical legacy is “footnote four” of the 1938 Carolene Products decision, in which the court said that legislation aimed at "discrete and insular minorities" without the normal protections of the political process would be an exception to the presumption of constitutionality applied in that case, thus justifying a heightened standard of judicial review. As political scientist Scott Lemieux (co-author of a book on judicial review) observed recently at Lawyers, Guns and Money, two late-term decisions provided “excellent example[s] of what one might call the inverse Carolene Products jurisprudence of the Roberts Court: the more powerful the interest, the more likely they are to get a sympathetic hearing, while discrete and insular minorities are increasingly likely to find themselves out of luck.” This is conservative jurisprudence in a nutshell: Comfort the comfortable, and afflict the afflicted.
In the case of Shelby County vs. Holder, overturning part of the Voting Rights Act, the court arguably went back even further, invalidating the 1870 adoption of the 15th Amendment, which explicitly granted Congress the power to ensure voting rights protection. There is nothing, in fact, that conservative justices are unwilling to overturn, if it suits their agenda.
Third, no supposedly undecided senator will talk about this honestly either. Sen. Susan Collins, R-Maine, says she won’t vote for a judge who will disregard precedent and overturn Roe. This supposedly principled stance is almost comically naïve. Collins recently explained that she had a “very long discussion with Justice Gorsuch in my office and he pointed out to me that he is a co-author of a whole book on precedent.” But as Brianne Gorod notes in picking this apart, there is an enormous gap between what Gorsuch promised and what he’s done. In assuring senators "that he would follow precedent, he could not have been any clearer,” she writes. “But what has Justice Gorsuch done in just his very first full year on the bench? He’s repeatedly rejected and called into question long-standing Supreme Court precedent.”
She cites three cases where the break with precedent is particularly striking:
Most obviously, in Janus v. AFSCME, Justice Gorsuch joined with the Court’s other conservatives to overrule a 41-year-old precedent upholding the constitutionality of state laws that allow public sector unions to require non-members to pay their fair share of the costs of collective bargaining. ...
In South Dakota v. Wayfair, a case about whether states can require out-of-state Internet retailers with no physical presence in the state to collect sales taxes on goods sold to consumers in the state, Justice Gorsuch joined the Court’s majority in a 5-4 decision holding that two earlier decisions of the Court — one from 1967 and one from 1992 — “should be, and now are, overruled.”…
And in Abbott v. Perez, a case in which the Court, 5-4, upheld Texas’s redistricting map, Justice Gorsuch joined Justice Thomas’s one-paragraph concurrence taking the position that the Voting Rights Act “does not apply to redistricting.” Left unsaid in that paragraph is that that position would require overruling countless Supreme Court cases that have held just the opposite.
She cites other examples where he indicated a readiness to overturn other precedents as well. “In sum, Justice Gorsuch may have written a book about the law of precedent, but that didn’t stop him from ignoring the law of precedent in case after case this year.” For Gorsuch — as for so many others — precedent is simply a tool to be either used or discarded, depending on circumstance. To portray it as some sort of principle is simply a lie.
There’s another way to understand the dishonesty at play. We can contrast women's reproductive rights on the one hand with "gun rights" on the other — a female-centered model of freedom versus a male one — which have been treated in drastically ways, as I argued during the 2012 election, comparing Planned Parenthood and the NRA. As I wrote then:
Two very different books on American freedom make the same point -- that "freedom" is a highly contested word. In “The Story of American Freedom,” historian Eric Foner makes this point by exposing a succession of the most dominant or dynamic views of what constitutes freedom, all the way from the colonial era to the present day. In “Whose Freedom?”, cognitive linguist George Lakoff explores to major variants -- liberal and conservative interpretations based on different ways of filling out a shared common schema, which he grounds in the physical experience of the freedom to move. Both books also agree on a further point -- that freedom in the U.S. is predominantly a progressive idea, but that conservatives over the past few decades have done a better job of claiming it for themselves.
Conservatives have made guns virtually synonymous with freedom, on one hand, while disparaging and demonizing women’s reproductive freedom on the other. In both cases, the views of an overwhelming public majority are being consistently thwarted. I’ve already mentioned supermajority opposition to repealing Roe v. Wade, which is matched by similar support for common-sense gun safety laws.
As far back as 2009, conservative pollster Frank Luntz found that NRA members supported closing the gun show loophole, requiring gun owners to report lost and stolen guns, background checks for gun store employees and full prosecution of gun traffickers and criminals who use guns, among other measures. No more conservative slice of the general public could be constructed, yet they’re largely opposed to their organization’s own leadership.
The NRA specifically and conservatives more broadly have constantly advanced a gun-worshiping agenda wrapped in the rhetoric of freedom. Even the most sober and sensible measures, those supported by a majority of Republicans and NRA members, are portrayed as the first steps on the road to tyranny, with absolutely no evidence. Meanwhile, violent lawbreakers like the Cliven Bundy clan are regularly defended as freedom-loving patriots.
The attack on reproductive freedom shows the exact opposite dynamic, with a plethora of state laws limiting or eroding basic rights and the issue of women's freedom systematically excluded from discussion or represented as a threat to life itself. As Genevieve Scott of the Center for Reproductive Rights told Salon's Amanda Marcotte, “An extremely conservative justice who would be interested in overturning Roe v. Wade would also be a threat to the right to contraception. The future of both access to abortion and access to birth control ... is really on the line here.”
What's at issue here is the question of a constitutional right to privacy, which numerous right-wing legal minds, including Chief Justice John Roberts, have insisted does not exist. That would imply that the 1965 Griswold decision and the 1973 Eisenstadt decision, which overturned state laws restricting access to contraception, was wrongly decided. As Jill Filipovic wrote for Time, there's a logical outcome not far away: “If Roe is done away with under the theory that privacy rights don’t exist, this could mean that there is no constitutional right to birth control, either.” Already, anti-choice activists have devoted a great deal of time and energy to falsely recasting some forms of birth control as abortion.
To prevent the tyrannical rule of a right-wing minority, the entire interlocking framework of lies that supports its hypocritical idea of "freedom" will have to be confronted and dismantled. Those lies have been cultivated for a long time: lies about what the Bible says about abortion; lies about what conservative judges practice, believe and intend; lies about what freedom means and who can claim it; lies about what’s constitutional and why; lies about who’s in a position to tell the rest of us how to live. It's time to call them what they are and stand up for the truth.