Senate Minority Leader Mitch McConnell still remembers the shock he felt when Donald Trump won the 2016 election. He also recalls what happened next.
“The first thing that came to my mind was the Supreme Court,” McConnell said in an interview this past week, remembering his reaction that night as he watched results from a basement office at the National Republican Senatorial Committee. He soon called Donald McGahn, campaign counsel to the president-elect, who was slated to become the top White House lawyer.
A week later, Leonard Leo, the head of the conservative Federalist Society and a McConnell ally, was sitting with the president-elect and his advisers in Trump Tower in New York with a list of six potential conservative nominees alphabetically typed onto a piece of personalized stationary, according to people familiar with the meeting, who spoke on the condition of anonymity to reveal internal discussions.
As incoming chief of staff Reince Priebus and Trump’s daughter, Ivanka, came in and out of the room, Leo laid out a road map for Trump on the federal court system, potentially transforming the foundational understanding of rights in America.
It was a moment anti-abortion activists had been working toward for decades: The highest reaches of Republican power finally focused, in unison, on achieving the once implausible goal of revisiting the jurisprudence of the 1960s and 1970s, including Roe v. Wade, the 1973 ruling that legalized abortion nationwide.
The leak of a draft Supreme Court opinion on abortion this past week showed that a majority of the court is now poised to do just that, with three of the five potential votes for overturning Roe coming from justices recommended by Leo, appointed by Trump and confirmed under the leadership of McConnell.
For the activists who have fought against enormous odds to elevate the issues of abortion and judicial selection, the sudden turnabout is nearly as shocking as Trump’s election was for McConnell. Interviews with more than two dozen movement leaders, Republican officials and operatives describe a half-century journey that only began to settle over the last decade, as the politics of abortion finally polarized itself as a partisan issue and emerged as a top-tier Republican priority.
“I think even until earlier this week, most pro-life leaders were holding their breath,” said Charles Donovan, a former Reagan White House aide, who began working as legislative director for National Right to Life in the late 1970s. “I do think it’s pretty stunning.”
Abortion rights advocates have also been stunned by the transformation, accusing Republicans of hijacking the courts for partisan and unpopular ends.
“This is exactly what we feared was coming,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, a network of abortion clinics. “Republicans just do this and all the gloves are off.”
With almost no change in national public opinion over the past half century, and as a majority of Americans remain opposed to overturning Roe, the movement succeeded by mobilizing a determined minority of Americans and adopting the protest tactics and sometimes the language of left. They transformed religious interpretations of prenatal life, embraced medical advancements that gave new understanding of the fetus and helped to build an academic legal movement in the Ivy League universities that railed against the evolution of American jurisprudence.
Most important, they nurtured a generation of political and legal leaders who saw in the setbacks of the 1970s to 1990s a defining cause. As a young man in the 1970s, McConnell, 80, had worked with the late Justice Antonin Scalia, an avowed opponent of Roe, in the Justice Department. A photograph of the two men from that time still hangs in McConnell’s office.
“If I was looking at ways to have an impact on the country that I thought would be good and positive, this would be the way to do it,” McConnell said in the interview this past week at his office on Capitol Hill.
“Majorities change. Taxes go up. Taxes go down,” he continued. “If you prefer America right of center, which I do, and you’re looking around at what you can do to have the longest possible impact on the kind of America you want, it seems to me you look at the courts.”
1. The Beginnings
At the time Roe was handed down in 1973, political leaders had no such conception of the judiciary. Both parties viewed the law as a practice mostly astride of politics. Abortion was an issue without clear political or religious boundaries beyond the Catholic Church.
The former president of the Southern Baptist Convention, W.A. Criswell, who ran the First Baptist Church in Dallas, had argued that a child became an individual only after birth when “it had a life separate from its mother.” In both 1971 and 1974, Southern Baptists passed resolutions asking evangelicals to work for legal abortion in cases of rape, incest and fetal deformity, as well as cases where there was “carefully ascertained evidence of the likelihood of damage to the emotional, mental and physical health of the mother.”
That permissiveness among pastors was about to run headlong into a cultural rebellion against the liberal social movements of the 1960s. “Women’s libbers are promoting free sex instead of the ‘slavery’ of marriage,” the conservative activist Phyllis Schlafly wrote in a 1972 essay opposing the Equal Rights Amendment. “They are promoting abortions instead of families.”
A topic once only whispered about was now openly debated. “People in the pews were hearing arguments for abortion explicitly for the first time and rejecting those arguments,” said Russell Moore, the former head of the Southern Baptist Convention’s public policy arm. “They did understand that when they were pregnant and when they were expecting their child, it was their child.”
Republican election strategists had simultaneously identified the issue as a cleave to peel away Democratic Catholics and southern Whites unsettled by social change. During the 1972 election, Senate Minority Leader Hugh Scott, R-Pa., seized upon the new culture war message, denouncing Democratic presidential candidate George McGovern as the “Triple-A Candidate: Acid, Abortion and Amnesty.”
So began a three-decade transformation inside the Republican Party, marked by small victories and massive disappointments for the anti-abortion cause. At the 1976 Republican convention, the party endorsed a constitutional amendment that would “restore protection of the right to life for unborn children.” More than two dozen female convention delegates signed a minority report urging the party not to take an abortion position.
By 1980, the Republican Party had become more explicit, promising in its platform to promote judges “at all levels” that would respect “the sanctity of human life.” But the party, and even some advisers to the nominee, California Gov. Ronald Reagan, were still deeply divided.
Donovan remembers being approached at the convention by Marty Anderson, a senior policy adviser to the Reagan campaign who dismissively told anti-abortion activists in the hallway to “be happy with what you got.”
“Some people on Reagan’s team were not pro-life and there were many of them that were unhappy,” Donovan remembered.
Those divisions would surface a year later with the naming of Reagan’s first Supreme Court nominee, Sandra Day O’Connor. Her friend, Carolyn Gerster, who founded the Arizona Right to Life Committee, testified before the Senate that O’Connor had repeatedly voted in the state senate to protect abortion.
“We are concerned,” John C. Willke, the head of National Right to Life, said that same day.
O’Connor’s confirmation set a template that would haunt the pro-life movement for decades. She was followed onto the court by Reagan appointee Anthony M. Kennedy and George H.W. Bush appointee David Souter. Both joined O’Connor in 1992 in endorsing the “essential holding” of Roe as part of the Planned Parenthood v. Casey decision.
On the legislative front, the anti-abortion forces had still not found a way to power. In June 1983, a Senate vote on a constitutional amendment to ban abortion failed. Fifteen Democrats voted for the amendment, and 19 Republicans voted against it.
Just two weeks prior, the Supreme Court had reaffirmed the right to an abortion, striking down a local ordinance imposing restrictive regulations on abortion providers.
In the wake of defeat, Americans United for Life, an anti-abortion law firm and advocacy group, convened a strategic national conference in March 1984 at the Palmer House Hilton Hotel in Chicago. The idea behind the event, titled “Reversing Roe v. Wade Through the Courts,” was to devise a coordinated legal strategy.
“It was a hopeful atmosphere,” said Edward Grant, a past president and executive director of Americans United for Life and an attorney.
Another setback came in 1987, when Reagan’s nomination of Robert Bork, who publicly criticized the legal rationale that undergirded Roe, was defeated in the Senate, forcing yet another deep internal reckoning and retrenchment.
“Initially, it was people going, ‘Oh my God, what just hit us?'” said Carrie Severino, the president of the Judicial Crisis Network. “It took a long time for people on the right to figure out what the best response was.”
2. New Strategies
The organized response had, in fact, already begun, spearheaded by a group of law students at Yale, Harvard and the University of Chicago, who began meeting under the auspices of the Federalist Society in 1982. They were united by the idea that American law had strayed too far from the original intent of the nation’s founders.
The group grew in the late 1980s, with chapters and members proliferating across the United States. It soon became an influential group in Washington with a sprawling budget and deep access across Republican levers of government.
“Abortion was not the motivating factor,” said Edwin Meese III, a former Reagan adviser who has for decades led the fight for conservative legal reforms, in an interview last December. “It was a matter of being honest and faithful to what the Constitution actually said.”
These self-described originalists came to reject Roe as judicial activism, and found common cause with abortion opponents who could mobilize voters. At the same time, anti-abortion activists stepped back to reconsider their approach. They decided after the Casey decision that the anti-feminist rhetoric of Schlafly and the Equal Rights Amendment struggles from the 1970s had become counterproductive.
“We had to convince the public that we were compassionate to women,” Willke would later write about the new strategy. “Accordingly, we test marketed variations on this theme.”
The result was a new slogan — “Love Them Both,” mother and child — and a sharp rejection of some of the more aggressive methods of protest in the 1980s such as Operation Rescue, which had harassed women outside abortion clinics.
“Americans have usually been pretty unhappy about the idea of punishing patients,” said visiting Harvard law professor Mary Ziegler, who has written extensively on the history of the movement.
After the “Year of the Woman” swept four new female Democratic senators and Bill Clinton into office in 1992, abortion opponents founded the Susan B. Anthony List, named for the 19th century suffragist, aimed at electing more “pro-life” women to office.
But as the movement made progress rebranding itself with the public, it found its foothold in the Republican Party remained tenuous. The 1996 Republican presidential nominee, Sen. Bob Dole of Kansas, asked to modify his party’s plank to include a “declaration of tolerance” for those who did not oppose abortion.
“This is not compromise, it is civility,” Dole said. A rebellion ensued, only to be settled by Dole making clear that he had not read the anti-abortion platform on which his candidacy was based.
The tensions within the party would only grow in the coming years as the evangelical right, which had by now fully unified against abortion, increasingly made threats against the Republican Party.
Paul Weyrich, the founder of the Heritage Foundation who coined the term “moral majority,” declared in 1999, “We probably have lost the culture war.” Leaders like James Dobson, the founder of Focus on the Family, began warning that evangelicals would bolt from the Republican Party.
“We were both saying to the party, you can’t play games with this issue. So it was serious,” said Gary Bauer, a candidate for president in 2000 who worked with Dobson. “Many people felt that Republican leaders had to be educated about where their own voters were.”
The anger had the effect of solidifying support. When President George W. Bush nominated White House counsel Harriet Miers to the Supreme Court in 2005, the response was fierce. She had spoken about “self-determination” guiding abortion decisions and gave confusing answers on the right to privacy.
“There was a tremendous backlash,” Bauer said.
Miers withdrew her nomination within weeks. Her replacement as a nominee, Samuel Alito, was easily confirmed. He became the author of the draft opinion completely overturning Roe that leaked last week from the Supreme Court.
The consolidation of the anti-abortion movement’s political power would only continue in the coming years, as the parties sorted themselves along culture war lines, even as the nation’s overall view of abortion remained constant.
According to Gallup, the share of Americans who do not want the Supreme Court to overturn Roe was 58 percent in both 1989 and 2021. In 1975, 22 percent of Americans wanted “abortion illegal in all circumstances,” compared to 19 percent in 2021.
But the share of Democrats who said abortion should be legal under “any circumstances” rose from 19 percent to 50 percent between 1975 and 2021. The share of Republicans who want to outlaw all abortion went from 25 percent to 31 percent.
In the Senate today, there are only three Democrats who oppose using federal funds for abortions. In the House, there is just one, and he is locked in a tight primary battle.
The 2010 midterm elections were a major turning point in the partisan shift. Anti-abortion Democrats were voted out of office for having supported the Affordable Care Act, which allows plans in the insurance marketplaces to cover abortion, although states are allowed to ban such coverage. At the same time, a new generation of Republican lawmakers who prioritized cultural issues were swept into office.
The Republican midterm wins also gave states new powers to redraw legislative district lines, further growing the power of anti-abortion forces in Republican-dominated states.
“The pushback to Obama’s pro-abortion policies was so pronounced at the state level,” said Family Research Council president Tony Perkins, who credits the former Democratic president with propelling the anti-abortion cause. “We began to see this wave of pro-life legislation.”
By the fall of 2011, anti-abortion advocates had started pushing for bold restrictions with brash new tactics. When Janet Porter introduced the first “heartbeat bill” in the country to ban abortions after six weeks, she showed up in the Ohio Statehouse with ultrasound videos to demonstrate the cardiac activity of a fetus, which she described as the “youngest person to ever speak” at the Ohio Statehouse.
Over 200 anti-abortion restrictions were enacted between 2011 and 2013, more than had taken effect for the entire previous decade.
“We sent a signal that being pro-choice was a disqualifier,” said Marjorie Dannenfelser, president of Susan B. Anthony List. “Having an ‘R’ next to your name was not enough.”
But even after 2010, when the vast majority of Republicans identified publicly as anti-abortion, conservative advocates and lawmakers were bitterly divided on exactly how far that legislation should go. The most established anti-abortion groups argued that proposed heartbeat bills went too far and would bait a liberal Supreme Court to issue a decision that might expand abortion rights even further.
“It was the right idea at the wrong time,” said Michael Gonidakis, the president of Ohio Right to Life.
The largest anti-abortion groups, including National Right to Life, whose lawyer testified against the six-week ban in Ohio, had long taken a more incremental approach, pushing various clinic rules and restrictions that would make abortion care more difficult without banning the procedure outright, under the theory that such measures had a better chance of withstanding court challenges.
National groups like Americans United for Life remained focused on a “mother child” strategy, which included talking about their belief that some forms of abortion are dangerous for the woman while pushing legislation that purported to make clinics safer. They sought to mandate clinics to widen their hallways or hire doctors with admitting privileges at local hospitals, moves that led to closure of some clinics.
4. The Trump Era
The direction of the movement changed again when a New York businessman and television personality suddenly stormed his way into the 2016 Republican presidential nomination fight. With a documented personal life that did not lend itself to evangelical support, Trump made overturning Roe v. Wade a centerpiece of his campaign, at one point even suggesting that there needs to be “some form” of punishment for women who seek the procedure before backtracking.
At a lunch with more than a dozen others that year at the Republican powerhouse law firm Jones Day, Trump said he wanted to make the Supreme Court a campaign priority, surprising some in the room, including Leo, a devout Catholic who regularly visits the Vatican. Leo told others it was easy to come up with list of judges that would please the Republican base because there were decades of conservative lawyers in the pipeline.
“The success of this movement has been the result of sharp and unwavering focus, growing public sentiment against overreach by judges, and consensus among conservative activists around a single principle — that having judges who respect the limits on their power and who enforce the limits on the power of the rest of government, as set forth in the Constitution, is the best way to preserve the dignity and worth of all people in the long run,” Leo said.
Trump would benefit from the fact that when Scalia died unexpectedly in February 2016, McConnell immediately announced from a trip in the Virgin Islands that he would not replace him with Obama’s nominee on the Supreme Court. McConnell’s critics called the move craven, and even some Republicans wondered if he could hold.
Abortion rights leaders were furious. “They broke all the rules,” said Hagstrom Miller, who testified against Justice Neil M. Gorsuch during his confirmation hearings. “It just feels like they lied and cheated and stole those really important roles, and now we can’t rely on the justice system.”
Gorsuch, Trump’s first Supreme Court nominee, was one of those included on the first six-person list that Leo had brought to Trump. Leo went to the White House in 2017 with a second, handwritten list of five proposed candidates that included Brett M. Kavanaugh and Amy Coney Barrett, who would become Trump’s next two picks for the court, replacing the retiring Kennedy and the late Ruth Bader Ginsburg.
Leo, McGahn and McConnell became a team, working to keep the judicial nominations effort moving even as other parts of Trump’s term fell victim to internal fighting. The three men usually agreed — with McGahn and Leo, among others, searching for nominees, and McConnell quickly confirming them. McConnell credited Trump’s advisers for the picks — and Trump for “signing off on them.”
Trump would frequently ask advisers if his administration was setting records for judicial nominees, and if judicial candidates were “tough” and “looked the part,” according to multiple people familiar with the conversations, who spoke on the condition of anonymity to reveal internal discussions. He never veered from the lists of candidates suggested by Leo and others, they said.
Josh Holmes, a longtime McConnell adviser, said it was an “eternal campaign” to “keep the accolades rolling in so Trump would stay interested in the topic.”
“Part of McConnell’s goal was to make sure that Trump was getting the accolades that he needed to keep on doing what he was doing,” Holmes said. “There was no shortage of effort to raise the profile of the judges issue so Trump would continue to have interest in it. Every time I saw Trump privately, he’d say, Mitch McConnell. Judges. Judges. Judges. The only thing he wants is judges.”
A spokesman did not respond to a request to interview Trump for this story.
Leo found he had extensive access in the White House, and that the judges issue moved quickly compared to previous White Houses, he told others.
After Gorsuch’s confirmation in 2017, Trump was delighted by the progress. Flying on Air Force One, Trump raved to McConnell and others about what a good nominee he had been, according to Rep. Garland “Andy” Barr, R-Ky., who told the story on the “Ruthless” podcast this week.
“And he went on for a pretty good while with his monologue about how this was the greatest choice ever to the United States Supreme Court. And at some point, after about 10 minutes or so, the president took a breath,” Barr recalled. “When there was a pause in the action, leader McConnell didn’t miss a beat. He kind of leaned forward and he said, ‘Mr. President, when are you going to thank me for that?'”
Ironically, the two men who had played such a central role in reshaping the nation’s judiciary have not spoken since the end of 2020, after Trump turned on McConnell for not attempting to overturn the results of the election he lost.
By the end of his presidency, in part because of the 2020 death of Ginsburg, Trump had set a record for judicial confirmations. Abortion rights advocates were helpless to stop the transformation, which culminated in the confirmation of Barrett, who took the oath of office eight days before Trump lost reelection.
“The most devastating gut punch was when Justice Ginsburg died,” said Kristin Ford, the vice president of communications and research at NARAL, a national abortion rights group. “I remember bracing for how much worse things were going to get.”
5. The Aftermath
The sudden shift in the makeup of the high court opened the floodgates in state legislatures. At least nine states passed abortion bans in 2019 that clearly violated Roe, which protects abortion up to the point of viability, around 22 to 24 weeks, each hoping their law would make it all the way up to an increasingly conservative Supreme Court.
In May 2021, the activists got what they were looking for: The high court agreed to consider a ban from Mississippi that outlawed abortion at 15 weeks in the case that’s now poised to overturn Roe.
By the time the Southern Baptist Convention gathered in 2021, they had fully repudiated their past views, embracing an aggressive approach that some in the anti-abortion movement had rebuffed just a few years before.
“We will not embrace an incremental approach alone to ending abortion because it challenges God’s Lordship over the heart and the conscience and rejects His call to repent of sin completely and immediately,” the platform read.
Meanwhile, anti-abortion advocates in Texas decided not to wait for a Supreme Court ruling. Frustrated by all the bans that had been blocked by the courts, former Texas solicitor general Jonathan Mitchell developed a novel legal strategy with lawmakers to evade a court challenge: empowering private citizens to enforce the law.
The gambit worked.
“PRAISE THE LORD!!!” Texas state Representative Matt Schaefer, R, texted Mitchell just after the Supreme Court ruled in early September to allow Texas’s six-week abortion ban to take effect.
That night, Mitchell let the significance of the moment sink in.
“It was the first time a state had successfully imposed a six-week abortion ban since Roe v. Wade,” he said.