In 1987, a widely overlooked book, Abortion and the Constitution: Reversing Roe v. Wade Through the Courts, laid out the primary legal strategy abortion opponents would pursue for decades. These fervent anti-abortion attorneys, brought together by Americans United for Life, the leading anti-abortion legal group, recognized that the reversal of Roe would take careful planning and a long-term strategy. There were several prongs. First, hack away at Roe’s foundations by discrediting the origins of the constitutional right to privacy, and expand the recognized justifications for restrictions. In this way they would gradually develop a new theory of constitutional jurisprudence that could subsume Roe’s entire rationale. Next, target restrictions to particular types of vulnerable women—indigent women or young women, for example—and once upheld, apply the limits to a wider group.
These challenges would need to be heard by federal courts packed with conservative judges who would be willing to upend the law. Ultimately, conservative Supreme Court Justices would be key to Roe’s demise. Arguing that “nothing can be a substitute for patient deliberation, exhaustive research, and a grand design,” this group of almost entirely male lawyers committed to working for the reversal of Roe until the job was done.
Combatting these relentless tactics developed by a well-funded and politically connected opponent, abortion rights advocates were kept busy on all fronts, overwhelmed by the swarm of anti-abortion laws that poured out of a hive of states dominated by conservative legislators and governors. Too often we were consigned to playing defense, with the rules of the game and the playing field largely controlled by our opponents. Along the way, the movement had some significant wins—increased access to new technologies and contraception, safer abortion, and the expansion of women’s health care under the Affordable Care Act—but in the main, our end goal and priority was to save Roe. The landmark case had become a piñata that kept taking hits.
Under Roe, once a plaintiff alleges that a law infringes on a woman’s privacy, the state must come forward with a compelling reason that supports the intrusion. The Supreme Court in Roe had found two compelling justifications for limiting abortion access: the protection of women’s health starting at the beginning of the second trimester of pregnancy and the protection of fetal life starting at viability. Thus the anti-abortion strategy, pushed by Americans United for Life, focused on enacting carefully drafted statutes that enable courts to undermine both of these justifications.
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