The Influence of Pro-life and Pro-choice Movements on Abortion Policy Developments from 1965-1992

Roe vs Wade in 1973 precipitated a divisive conflict over abortion rights in America, shifting from a state to a national issue. Roe constitutionalized abortion choice under the right to privacy in the Fourteenth Amendment, only permitting state interference in the third trimester of pregnancy. Theoretical studies have linked public opinion to policy formation, outlining how its impact is conditional on the issue’s salience amongst citizens and the involvement of interest groups. Despite its apparent consistency since 1973, public opinion on abortion is incredibly complex, with disagreements over what circumstances justify an abortion as well as methodological problems concerning the wording and order of questions across surveys. Daniel Williams and Barbara Craig argue public opinion has played an indirect role on the Supreme Court and politicians. Others, such as Linda Greenhouse, have argued Roe was substantially influenced by growing political movements in the 1960s, while Donald Critchlow suggests the rise of the pro-life movement has influenced the passage of anti-abortion laws. Meanwhile, Howard Ball and David Garrow have stressed the significance of the Supreme Court justices, specifically their values and ideological leanings, in abortion policy developments.

Ultimately, the general public has had an insignificant impact on abortion policy, with smaller groups of activists proving central to policy developments. Presidents were noticeably attentive to wider public opinion in the 1970s, yet polarization affected politicians and activists earlier than the general public, increasing the involvement of interest groups in defining policy. Congress has passed minimal abortion policy, initially due to electoral considerations from members to avoid decision-making on abortion, while legislative success remained elusive in the 1980s, as congressional divisions coalesced with the splintering of the pro-life movement. Finally, Supreme Court cases have generally been affected to some extent by activist groups, although the underlying issue of the justices’ values has become more significant since 1989, illustrating how judicial philosophies have considerably shaped abortion policy within the Court. This essay will be structured around the three branches of the federal government, assessing the influence of public opinion on abortion policy from 1965-1992 as well as how these institutions have both distributed and affected the policy-making of one another.

Several Supreme Court rulings prior to Roe emerged as a result of the litigation strategy devised by pro-choice activists rather than wider public opinion. Patricia Windle argues change was inevitable by the late 1960s, as a broad movement was emerging, advocating the expansion of personal rights. Liberating advances, such as the pill, motivated women to exert greater independence and agitate for abortion rights. However, Windle’s argument neglects how only 40% supported a pro-choice position in 1969, most of whom restricted abortion to cases where the mother was ill or had been raped. Indeed, abortion was still a minor issue, with policy driven by a smaller group of activists, largely composed of medical professionals, who used federal litigation to initiate change. These activists used the right of privacy, established in Griswold vs Connecticut in 1965, to attack anti-abortion statutes in California and Columbia through People vs Belous in 1969 and United States vs Vuitch in 1971 respectively. Garrow highlights how both cases were endorsements of the litigation strategy, including large numbers of female plaintiffs and entering amicus briefs signed by doctors and lawyers. These successes stimulated further plans, evidenced by the assistance of lawyers Roy Lucas and Richard Samuel in appealing an abortion conviction for Dr Sherwin Raymond, sensing the opportunity to repeal anti-abortion statutes in New Jersey. Progress would have been unlikely without the fact that most lawyers were middle-class and pro-choice, or the tolerant Warren Court, ruling in a liberal direction on 76% of cases during the 1960s. Nevertheless, the initiative and strategy of the pro-choice activists shaped the nature of these cases, acting as a driving force behind the rulings.

Roe was thus not a Supreme Court response to pro-choice public opinion, but rather the culmination of the activists’ litigation strategy. Russell Hittinger highlights how 60% of states still banned abortion in 1973. Furthermore, reform measures introduced generally lacked de facto implementation, demonstrated by how only 25 legal abortions occurred each month in Colorado and North Carolina, thus implying a lack of public approval for the new laws. Although Gallup polls from 1969-72 show an increase in pro-choice support from 40% to 46%, this is still a low level when considering the scale of change initiated in Roe. Moreover, a detailed survey by the National Opinion Research Centre reveals considerable disagreement over the approved circumstances for abortion concealed by the more general polls, with over 50% opposing abortion for relationship or family reasons.

Instead, the decision-making in Roe further illustrates the impact of the litigation strategy as well as the wider pro-choice movement. Robert McKeever stresses how Roe, and its accompanying case Doe vs Bolton, were class actions, organized and funded by pro-choice interest groups, who were becoming more influential outside the courtroom by 1973. Indeed, Greenhouse identifies how the movement incorporated women calling for abortion on demand, reflective of the wider emergence of abortion as a national issue. Radical individuals, such as Patricia Maginnis, and groups, particularly NARAL, organized petitions and teach-ins, while advocating abortion rights in demonstrations to generate national media attention and support. The publicity and intensity of the movement likely created a perception of wide-scale backing, significant in light of Justice Rehnquist’s admission in 1986 that, ‘[since the judges] watch television, read newspapers, talk to family, it would remarkable if they weren’t affected by the tides of public opinion.’ Considering the Burger Court only twice issued over 50% of its yearly rulings in a liberal direction, the justices’ radical decision to permit abortion on demand within certain regulations creates the impression of an external influence on the Court. John Ely appears overzealous in claiming the justices acted on their own beliefs in Roe. Nevertheless, the ruling certainly illustrates the incorporation of views held by the pro-choice movement rather than general public, adhering to Greenhouse’s contention that the justices viewed abortion through the eyes of medical elites and feminist campaigners.

Supreme Court rulings thus appear influenced to some extent by activist movements, although Webster vs Reproductive Health Services in 1989 disproves this trend. Ahead of Webster, pro-choice supporters filed 49 briefs, wrote around 40,000 letters a day and organised a 300,000 person march in Washington in April 1989, seeking to capture media attention and influence the justices. However, Webster rejected abortion choice as a fundamental right of privacy, permitting state discretion on abortion funding and availability. Karen O’Connor suggests the ruling was the result of the bench’s conservative composition, after O’Connor, Rehnquist, Scalia and Kennedy had been appointed by Reagan. Yet, O’Connor’s interpretation is overly simplistic upon analyzing the opinion, revealing how the opportunity to overturn Roe was opposed by Sandra O’Connor, claiming it would violate ‘the fundamental rule of judicial restraint.’ When explaining her actions, Maltz highlights O’Connor’s centrist approach, shifting between the conservative and liberal blocs of the Court on different cases. However, her action stems primarily from her judicial philosophy; in her confirmation hearings, O’Connor openly stated her preference for federal judicial restraint, believing the Court should apply laws rather than make policy. Furthermore, although her study is limited to O’Connor’s first three years on the bench, Barbara Bruckman highlights the trend towards judicial restraint in O’Connor’s decisions, limiting the Court’s power and protecting state interests. When considering O’Connor’s nomination was primarily motivated by her gender, the significance of the justices becomes further evident. Indeed, such reasoning juxtaposes the limitations on presidential influence of the Court by the general public with the wider jurisdiction of the Court to block executive policy if deemed necessary. As a result, the Court considerably influences the policy and decision-making of other branches, determined to a great extent by the philosophies of sitting justices.

The decision in Planned Parenthood vs Casey in 1992 to uphold the ‘central holding’ of Roe further illustrates the importance of the Supreme Court justices in determining rulings. Despite widespread expectations the case would overturn Roe, the majority opinion reaffirmed abortion choice, although restrictions were put in place, provided they did not place an ‘undue burden’ on women seeking abortion. A reversal was anticipated, since eight justices had been appointed by Republican Presidents and the only Democrat appointee, Byron White, had dissented in Roe. Yet, Casey saw O’Connor, Kennedy and Souter join Blackmun and Stevens in a majority. The opinion justifies its decision differently to previous rulings, stating how, ‘the Court must take decisions…as grounded in principle, not as compromises with social and political pressures.’ The ruling is thus an example of stare decisis, binding the justices to the Roe precedent. The ruling stressed how Roe’s reasoning had not changed, disregarding the pro-life opposition that encouraged its reversal. This decision links to the Court’s changing dynamic after the appointments of Kennedy and Souter. Expected conservatives upon their confirmation, Fliter and Tomlins highlight how both turned out to be more liberal, dealing with cases on an individual basis. Once again, these appointments reveal the limited influence of the president over abortion policy, forced to nominate more moderate judges to appease activists and the Senate, subsequently making the Court more unpredictable in its rulings. Ultimately, Webster and Casey establish the justices as crucial determinants to abortion policy, influenced to a lesser extent by the Executive, who lacks freedom in the nomination of justices and operates through an indirect means in seeking policy changes through the Court.

Ronald Weber’s simulation methodology reveals a positive relationship between abortion liberalization and pro-choice public opinion prior to Roe. States, such as California, Colorado and Hawaii liberalized their abortion laws, contrasting to the failure to introduce similar legislation in Minnesota and Michigan. It is reasonable to argue the general public partially influenced policy-making, since these decisions were made prior to the 1970 election, suggesting legislators acted in ways deemed popular. The case study of Hawaii appears to support this argument, as both parties adopted strongly liberalized stances, competing for the 53% of people supportive of pro-choice abortion laws. Yet, the legislation’s passage was influenced to a greater extent by the Hawaii labor unions. Steinhoff highlights how these groups used their size and political power in elections to persuade legislators to pass the bill. Furthermore, in Colorado in 1967, Lader described the liberalization bill’s passage as the product of an ‘inside’ strategy, as several political leaders worked within the legislature to lobby state legislators. Such evidence thus posits the general public as indirectly influential on legislators, but that their general apathy towards abortion means most changes are driven by activist groups.

Legislation in New York further underlines the importance of activism in influencing abortion policy. The Cook bill was narrowly passed in 1970, allowing abortion until the 24th week of pregnancy. Weber’s research suggests 52% were in favor of a liberalized law, yet this success was unexpected due to the strength of the Catholic Church in New York, who has mobilized against a similar bill in 1967. Williams highlights how most legislators thus opposed liberalization, aware of abortion's salience amongst Catholics and that permitting abortion choice would destroy their political careers. The explanation behind this attitudinal shift by legislators is revealed by George Michaels’ reasoning to vote yes to ‘have some peace’ in his family. Thus, it appears the vote was not influenced by organized interest groups, but, ‘the wives of the Senate and Assembly,’ as noted by Governor Rockefeller. Such evidence highlights the occurrence of activism on an individual basis by these women, reaffirming the importance of the intensity of opinions in bringing about change. Concurrently, Williams illustrates how the bill’s passage reflects the impact of non-activism, identifying the complacent approach of the Catholic Church, who took no action, believing the legislation would not pass. This case study thus reasserts the importance of the activist public in determining abortion policy, necessary both to initiate and block legislation.

The only major abortion-related legislation passed in Congress was the Hyde Amendment in 1976, correlating with the public’s view on abortion funding, but ultimately brought about by the pro-life movement’s lobbying of members. Pro-life activists aimed to limit Roe's impact by prohibiting Medicaid funding, which had provided 270,000 abortions in 1973. In this sense, public opinion was key in the pro-life strategy, as many legislators were wary of the potential opposition if Roe was overturned. The pro-life movement thus targeted funding bans on abortion, supported by 55% of people in 1976 and seen as an effective means to limit Roe’s impact, while attracting congressional support. Notwithstanding this, activists were central in ensuring the bill’s passage. After the defeat of the Roncallo Amendment in 1974, Craig highlights how activists used the voting record to lobby members and achieve future success, illustrated by consistent votes prohibiting abortion funding from 1976-89. Evidence of this activity is encompassed in Robert Giamo’s reflection that, ‘I know of the great lobby and the pressure put on members,’ most notably illustrated by the work of Mark Gallagher. A lobbyist for NCHLA, Gallagher was present at the committee stage of the amendment, reportedly, ‘tell[ing] the 11 House conferees whether the proposal is acceptable to the bishops with every compromise offer.’ Significantly, eight of these conferees were Catholic, influenced by the heavy involvement and substantial funding provided by the Church to the pro-life movement. Therefore, not only were the pro-life movement significantly active within legislative proceedings, the resources and intensity committed to these activities ensured they had an influence, limiting access to abortion through the Hyde Amendment.

The failure of anti-abortion legislation in Congress primarily resulted from growing divisions within the pro-life movement, stemming from disagreements over the phrasing and emphasis of amendments. Garrow uses the example of a series of constitutional amendments proposed in March 1974. The amendments were comprehensively rejected, reflecting the difficulties involved in amending the constitution and thus changing Supreme Court decisions, but the episode also underlines the severe disunity within the pro-life movement. Garrow highlights how many pro-life advocates refuted these efforts, only championing legislation that included the embryo under the Fourteenth Amendment. Their anger at more moderate proposals contributed to the break-up of interest groups, weakening any attempts to introduce change. Indeed, Robert Lynch, leader of the NCHLA, reflected how, ‘there are six pro-life organizations, each with a different amendment and plan, each refusing to work with each other.’ Durham illustrates how these issues were further exasperated in the 1980s by the emergence of more violent groups, namely Operation Rescue, who divided the movement to a greater extent through their destructive tactics. Evidently, the splintering of interest groups compromised legislative policy efforts, yet some activists continued to pursue this strategy, only to be limited by the presidential veto. For example, Bush vetoed the approbations bills in 1990 that aimed to restore funding to poor women in Columbia made pregnant by rape/incest. As a result, Congress’ interaction with other branches must also be accountable for the failure of anti-abortion legislation, struggling to overcome Supreme Court decisions and encountering resistance from the Executive when majorities are found.

The absence of abortion policy within Congress also stemmed from electoral considerations by its members, seeking to appease more prominent activist groups within states. Throughout the 1970s, congressmen often deferred abortion policy to the Supreme Court, concerned that any decisions would anger activists and lead to their removal. Wilson describes how Senator Clark’s defeat in Iowa in 1978 was engineered by anti-abortion forces, who destroyed his majorities in Catholic neighborhoods through campaigning and distributing leaflets. Since only 1-2% of the population has judged abortion as an important issue, the deference of politicians and alignment with activist groups reaffirms abortion policy-making as indicative of views of the activist rather than general public. Indeed, abortion's increased salience in the 1980s was subverted by the polarization within political circles and activist groups, deflecting the influence of a more complex public opinion. Polarization has produced different impacts on congressmen, depending on the more dominant view within their state. For example, in two gubernatorial elections in Virginia and New Jersey in 1989, pro-choice Democrats, Wilder and Florio, gained a significant advantage from their positions. Yet, Bob Packwood and Bob Casey, senators who contradicted their party lines on abortion, remained elected officials consistently. What is evident from such examples is that abortion attitudes took precedence over party affiliation when voting for candidates. Furthermore, it is clear how members’ attitudes rarely change towards the issue. Indeed, Adams’ study uses congressional roll calls to show most legislators have voted consistently on abortion 90% of the time. As a result, shifting attitudes towards abortion in Congress occur not via a change in views, but a change in members, as activists compete to protect their advocates and remove opponents from office.

Abortion policy became infused into presidential politics after Roe, yet Ford and Carter straddled the abortion debate to maximize support amongst a divided and uninterested general public. Ford advocated states’ rights on abortion in the 1976 election, yet this stance was vague and appeared contradictory, since he had previously vetoed the Hyde Amendment while President, defending himself under the ‘issue of fiscal integrity.’ Carter was similarly vague in a basic declaration of opposition to abortion, illustrating how both parties had hoped to avoid the abortion issue until the single issue campaign of anti-abortionist Ellen McCormack made a stance necessary. Carter and Ford were reactive to activism, likely taking an anti-abortion stance to appease activists and limit the number of votes lost. As president, Carter took minimal abortion-related action, avoiding debates on the Hyde Amendment and selecting advisers with a mixture of attitudes, for example, pro-choice Midge Constanza as a senior aide and pro-life Joseph Califano as HEW Secretary. Indeed, Craig demonstrates how Carter lacked any presidential leadership on abortion, stating his personal opposition to abortion, but presidential duty to uphold the law as it stands in 1980. Ultimately, this ambivalence towards abortion reflects the wider unimportance of the issue amongst the general public. Only 1% of people placed abortion in their top three issues for the election, while less than half were informed on Roe in 1975. Abortion politics had not yet polarized, leaving presidents more focused on appealing to the general public, while doing the minimum to appease activists, thus precipitating a preference for rhetoric over policy from Ford and Carter.

Reagan was the first president to take a definitive stance on abortion, yet it appears this approach at least partly emanated from pro-life supporters within society. Garrow questions Reagan’s anti-abortion stance, referring to his earlier support for the Beilenson Bill in 1967 while Governor of California, permitting ‘therapeutic’ abortions for women. However, Garrow neglects how Reagan immediately afterwards expressed his regret on the bill’s passage, stating how the debate over life or death, ‘should be resolved in favor of life.’ Notwithstanding this, Reagan’s anti-abortion stance in the 1980 election was at least partly the result of political calculation; O’Connor demonstrates how both parties were becoming increasingly distinctive towards abortion, reflected by the pro-life involvement in the Republican Party. The rise of the religious right, notably through the Moral Majority, mobilized widespread support and devoted considerable resources to the Republicans, essentially necessitating candidates to take a pro-life stance. Furthermore, the issue had become more salient by 1980; 17% of people ranked abortion in their top three most important issues, highlighting the growth of activist movements within society and that the compromise rhetoric of Ford and Carter would be ineffective. In this sense, political and activist circles were becoming increasingly polarized in their view of abortion, shifting the influence on political candidates from the general to activist public.

While he did not fulfill his ambitious objectives, Reagan’s limited abortion policy stems more from the limits on his power imposed by Congress and the activist public than an uncommitted anti-abortion stance. Graber has claimed Reagan was only active in making statements about abortion, criticizing the nonfulfillment of his anti-abortion agenda. However, Sundquist notes how legislative attempts to introduce abortion policy suffered due to conflicts over social and moral measures of the New Right splitting the Republican Party. Republicans, such as Olympia Snowe and Claudine Schneider, opposed Reagan’s conservative social agenda, to such extents that Schneider opposed the President’s position 75% of the time. When considered alongside the fact over 80% of Democrats voted pro-choice, it is unsurprising legislative attempts to reverse abortion laws failed. Instead, Reagan sought change through the Supreme Court, seeking to fill the federal bench with judges who, ‘believed in law and order and a strict interpretation of the constitution.’ Reagan used the selection process as an ‘ideological litmus test’ to choose justices that were social conservatives, committed to overturning Roe. Graber's criticism of Reagan’s underwhelming appointments to the Court, however, must be refuted, since his decisions were largely affected by activist groups and the Senate. In the case of Ronald Bork’s nomination, a hardline anti-abortionist, 52% of people disagreed with the appointment, yet Garrow stresses the overriding influence of activist protests during his confirmation hearings, coalesced with the work senators put into analyzing his record and philosophy. Furthermore, the Senate was strongly pro-choice at this time, thus making the failure of the nomination understandable; if it had been successful, Roe almost certainly would have been overturned. Such evidence therefore reiterates the influence of Congress over the president in determining abortion policy, limiting his legislative and judicial agenda, concurrent with the consistent mobilization of activist groups to oppose actions they disagreed with.

Meanwhile, George Bush’s abortion policy was considerably dictated by the pro-life movement and conservative voters within society. In the 1988 election, Bush renounced his earlier moderate views and shifted to an anti-abortion stance, since Republican candidates had to be acceptable to the pro-life movement. In a 1987 Conservative Digest poll, only 9% of those polled chose Bush as their favored Republican candidate. Aware of this lack of support, Bush aligned himself with the pro-life forces, making Dan Quayle his running mate, a young conservative with strong anti-abortion views. Bush’s alignment with pro-life forces guaranteed votes in the election, since the 30% of voters who classed abortion as a top three issue overwhelmingly voted for Bush, suggesting pro-life activists were more intense and influential in determining policy than pro-choice groups. Similar to Reagan, Bush’s agenda was more limited in its application during his presidency, suffering the same issues when appointing justices. Rosen highlights how the nomination of David Souter was primarily based around his lack of a paper trail, using Souter’s vague and moderate beliefs to secure approval from the pro-choice Senate. Similarly, with a Democrat-dominated House, policy developments were ultimately limited, as abortion-related legislation was either rejected by its members or vetoed by Bush. As a result, Bush’s limited policy achievements were partly due to his uncommitted pro-life stance, but also resultant of the interaction with other branches of government.

To conclude, general public opinion has ultimately had a minor effect on abortion policy from 1965-92, affected to a greater extent by activist groups. While initially influential on presidents, polarization within politics and activist groups has defined parties around a particular stance. Greater involvement from activist groups has pressured policy-making, yet this has ultimately been limited by checks on presidential power by Congress and pro-choice opposition. Similarly, Congress has introduced minimal abortion policy, initially due to electoral considerations, but more recently resulting from greater polarization between members and divisions within the pro-life movement. The Supreme Court has shown a vulnerability to the actions of activist groups, yet, it is evident, more explicitly since Webster, that the Court’s rulings are most determined by who sits on the bench and their judicial philosophies. The evidence presented reflects the theoretical basis initially outlined that the influence of public opinion diminishes with a reduced issue salience and greater involvement of interest groups. What is also evident from the development of abortion policy is the interaction between the three branches of government, particularly the deadlock that is frequently apparent between Congress and the president, limiting the policy-making powers of both. Indeed, when considering the proposed amendments to abortion law and failed nomination of Ronald Bork, abortion law could have been very different to what emerged by 1992, determined primarily by the Supreme Court. Nevertheless, when dealing with public opinion’s centrality to abortion policy, it is primarily the views of the smaller activist public that have any influence. As a result, there is a clear distinction between the influence of general and activist opinions based on the intensity of these views. While the general public may have some thoughts about abortion, it is only a small subsection of society who truly care and have sought to influence policy decisions.