CHAPTER ONE

Judicial Activism and the Pro-Life Movement

ON THE NIGHT after the Court issued its decision in Roe v. Wade, Juan Ryan, a New Jersey attorney and leader of the National Right to Life Committee (NRLC), could not fall asleep. Pat Goltz, a feminist from Ohio, found herself unable to listen to music, thinking of all the babies who would never hear a song. Kenneth Vanderhoef, one of the attorneys who had represented antiabortion amici in Roe and Doe v. Bolton, felt “thunderstruck” by the decision, hardly hearing the syllabus of the opinion as it was read aloud in open court.1
In the days after January 22, 1973, pro-lifers debated how best to respond to the Court’s decision. Like many abortion opponents, Dr. John Willke, a veteran pro-life activist, reacted by participating in a post-Roe campaign to restore what he believed to be long-recognized fetal rights. A devout Catholic and sex educator, Willke became famous for his slideshows on abortion. He told the story of fetal development in reverse, driving home what he believed to be the obviousness of fetal rights. The Roe decision did little to change Willke’s commitments. He and many of his colleagues rejected proposals that would chastise the Court for its overreaching and return the abortion issue to the states. Willke’s colleagues often believed that such a proposal would compound the Supreme Court’s betrayal.2
How did the Roe decision impact the movement to which advocates like Willke belonged? Conventionally, we believe that antiabortion activists immediately protested the idea that unelected courts had imposed their views on the people. For these reasons, we think that Roe “prompted a crisis of constitutional legitimacy.”3 Pro-lifers supposedly led a revolt against perceived judicial overreaching.4
But did the Court’s decision really produce a popular, pro-life movement against judicial activism? Some movement members did turn to arguments or strategies centered on judicial arrogance. However, for the better part of a decade after the Court’s decision, the vast majority of lawyers, law professors, and grassroots activists in the antiabortion movement opposed efforts to strip the Court of its authority or to return the abortion question to democratic politics. Nor did most members of national or state antiabortion organizations stress arguments against judicial activism, either in criticizing the Court’s abortion jurisprudence or in campaigning for a fetal-life amendment. Indeed, pro-lifers wanted the courts to act boldly to protect fetal rights not spelled out in the text of the Constitution. Abortion opponents asked the courts to rely on what could be seen as activist interpretive methods, taking the issue away from the people.5
The movement’s shared vision of the role of the courts concealed deep internal disagreements about sexual mores and gender roles. In the 1960s, as state campaigns to liberalize abortion laws sprang up, local opposition groups varied a great deal from community to community, and by 1970, when organizers worked to build a national movement, a variety of groups contested the meaning of a right to life. One faction described the sexual revolution and the expansion of feminist activism as part of a more general, and deeply negative, cultural shift. Fighting the legalization of abortion required a war against recent social changes and a restoration of traditional norms—as one activist put it, a “total confrontation, a turning point in the moral history of this country.”6
Other pro-lifers approved of, or at least did not oppose, some recent social and cultural changes. These abortion opponents tended to define themselves by their support for a particular vision of a caring society: fighting for an expanded social welfare net, broader rights for the poor and for vulnerable minorities, and certain reforms championed by legal feminists. Other movement members fell somewhere between these two extremes, viewing the women’s movement, the sexual revolution, and contraception as being independent or even irrelevant issues. As ideological divisions in the movement became clear, members of this neutral party had to choose sides and often elected to define their cause narrowly, opposing abortion and nothing else.7
This deep division notwithstanding, pro-lifers shared an idea of the courts’ constitutional and moral obligations. Judges had a duty to identify rights at best implicit in the constitutional text, particularly when those rights belonged to vulnerable classes. Pro-lifers articulated this vision at a time when conservative groups were beginning to attack perceived judicial overreaching, targeting decisions on busing, criminal procedure, and school prayer. Concerns about judicial tyranny reached from the streets to the legal academy. Beginning in the mid-1960s, scholars critical of Supreme Court decisions on sex equality and contraception argued that the Warren and Burger Courts had no principled basis for their decisions.8
Because of their disagreements about gender and sexual mores, many abortion opponents did not universally condemn recent Supreme Court decisions protecting rights to contraception or prohibiting sex discrimination. More importantly, in turning to arguments about equal protection and due process of law, pro-lifers asked the courts to use the doctrinal innovations condemned by many conservatives to recognize the unborn child’s fundamental, implicit right to life.9
The Supreme Court’s Roe decision intensified pro-lifers’ commitment to a controversial constitutional agenda centered on expansive ideas of equal protection and implied fundamental rights. After 1973, in promoting a right to life, activists asked the courts to look to the Declaration of Independence, the Thirteenth and Fourteenth Amendments, international human rights law, and pre-Roe substantive due process cases recognizing rights implicit in the Constitution. Movement members preferred that such a right be protected by courts from the will of shifting majorities.10
What does this consensus tell us about the antiabortion movement in the decade after Roe? In spite of their ideological divisions, most movement members did not object to the Roe decision because the Court had removed the abortion question from the democratic process. Instead, as most leading abortion opponents saw it, the Court erred in leaving the unborn without the protection they deserved. As a post-Roe brief submitted by the United States Catholic Conference complained: “Roe v. Wade uniquely opens a protected constitutional right to the workings of the popular will.”11
By the early 1980s, as movement tactics and beliefs shifted, leading pro-life activists more often turned to arguments about judicial activism. Over the course of the decade, a new breed of leader had come to influence the movement. Rejecting ideological purity, these advocates prioritized small, short-term successes. This strategy, although divisive, gradually attracted the support of a majority of movement members.12
For these new leaders, arguments against judicial overreaching offered obvious strategic advantages. In the late 1970s, important potential allies, including leaders of the Republican Party and the emerging Religious Right and New Right, often condemned judicial tyranny. In 1980, Republican candidate Ronald Reagan emphasized similar claims on the campaign trail.13
Partly by observing Reagan’s campaign strategies firsthand, pro-life activists came to a new realization about the practical value of arguments against judicial activism. Since 1973, pro-lifers had worked to amend the federal Constitution. Failing to make significant progress, abortion opponents sought new ways to outlaw abortion. By joining an emerging conservative coalition opposed to judicial activism, pro-lifers believed they could more effectively pressure the Supreme Court. Belonging to a broad alliance also promised the movement greater influence over national elections and federal judicial nominations.14
In particular, pro-lifers’ criticism of judicial overreaching resonated with members of the Religious Right, many of whom held deep concerns about the power of the Supreme Court. By condemning the Court, pro-lifers expressed solidarity with influential new allies. At the same time, in working closely with the New Right, some abortion opponents developed new beliefs about the judiciary. While contentions about judicial activism did not speak directly to the rights of the unborn, these arguments made sense to pro-lifers certain that the Supreme Court had done a great moral wrong.15
As this history suggests, the Supreme Court’s decision did not dictate the politics of judicial review within the pro-life movement. Leading studies correctly highlight the importance of perceptions of judicial legitimacy within the antiabortion movement. Just the same, those who argue that the Roe decision undermined the Court’s authority fail to account for how and why pro-lifers began stressing concern about judicial activism.

A Diverse and Divided Movement Forms, Championing the Right to Life

The pro-life movement began as a vibrant, fragmented, and flexible cluster of organizations. Beginning in the late 1960s, a number of private citizens mobilized to block laws repealing or reforming abortion bans. These early antiabortion groups brought together members of church discussion groups or bridge clubs, neighbors, close friends, colleagues, or even members of the same family. Although early pro-lifers differed considerably from one another, they tended to fall into two general groups. One included male and female professionals—physicians, lawyers, and law professors—some of whom became active to protest the positions on abortion taken by pro-reform colleagues or professional organizations. Others joined on the recommendation of coworkers or acquaintances already involved in the movement. These included physicians John Willke from Ohio, Fred Mecklenburg from Minnesota, and Mildred F. Jefferson from Massachusetts; attorneys like juvenile-court judge Robert Greene from Kentucky, attorneys Dolores and Dennis Horan from Illinois, and law professors like Charles Rice and Robert Byrn from New York.16
While pro-lifers were predominantly white, antiabortion organizers crafted groups that ignored or even subverted conventional hierarchies of class and gender. Many physicians and lawyers defined themselves first as grassroots activists and only secondarily as professionals. In state organizations in Minnesota, New York, Kentucky, and Michigan, for example, professionals took part in media appearances to highlight the respectability of their groups, but lay activists, many of them women and homemakers, held positions equal or superior to their professional colleagues.17
These homemakers formed the second major group of antiabortion leaders. For example, Randy Engel, a young mother living in Dayton, Ohio, became active after a friend pointed out an article in a local Catholic newspaper on efforts to control the growth of the Aleut-Indian population—an effort that Engel found deeply objectionable. She soon came to believe that the government showed disregard for human life in the context of both family planning and abortion. After moving to Pittsburgh with her family, Engel helped to form Women Concerned for the Unborn Child, a group of homemakers who lobbied against family planning funding and legal abortion.18
Influenced by various political climates and distinctive leadership styles, state groups adopted strikingly different visions of what it meant to be pro-life. An examination of two of the nation’s leading state organizations, those based in New York and Minnesota, makes clear how differently abortion opponents viewed questions of strategy and identity. The New York organization emerged partly as a result of the efforts of Edward Golden. A self-described hard hat, Golden, a father of five and former Air Force officer, worked as a construction foreman near Albany, New York. Disturbed by the progress of abortion-reform bills in the states, Golden felt that “society was going downhill” and found three others who shared his view, forming a small pro-life organization in New York State. At first, his group prioritized writing letters to the state legislature. After 1970, when New York liberalized its abortion law, Golden and his colleagues changed tactics, focusing on lobbying and establishing a presence in the state legislature. As Golden explained: “[W]e knew we’d have to roll up our sleeves and really become political.”19
A Methodist couple from Minnesota, Fred Mecklenburg and his wife, Marjory, headed a quite different pro-life organization, Minnesota Citizens Concerned for Life (MCCL). The group began almost by chance when Marjory, a home economics teacher, had a conversation with her neighbor Alice Hartle. A Catholic mother of nine, Hartle had recently heard that the Minnesota State Legislature was considering a bill that would permit abortions in cases where a child was likely ...