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Money and the Abortion Debate

Mary Ziegler

How did the abortion debate come to revolutionize the broader struggle over money in politics? The story has many characters, but James Bopp Jr. stands out. A proud Hoosier, Bopp was a passionate conservative before he ever worked a day on abortion politics. He was a state prosecutor in Indiana when Congress passed crucial amendments to the Federal Election Campaign Act in 1974, a major overhaul of campaign finance inspired by President Nixon’s Watergate scandal. By the late 1970s, Bopp had become the general counsel for the National Right to Life Committee (NRLC), the largest national anti-abortion group. At first, he and other anti-abortion lawyers viewed campaign finance laws as no more than a nuisance, but by the mid-1980s, they saw these laws as a lasting headache and began arguing that campaign finance limits were unconstitutional.

This shift came because the anti-abortion movement had embraced a new mission: control of the Supreme Court. In the 1970s and early 1980s, conservative attorneys in groups like the Federalist Society mobilized to influence the courts, forming professional networks that would find promising judicial nominees, influence legal norms, and legitimize conservative legal arguments. At first, pro-lifers mostly stayed out of this work. Instead, for a decade after Roe v. Wade, the 1973 decision recognizing a right to abortion, abortion foes promoted a constitutional amendment banning the procedure and worked to elect candidates who pledged their support for such an amendment. One of Bopp’s colleagues at NRLC, Dr. John Willke, a pro-life celebrity known for his anti-abortion slideshows, led efforts to make pro-life voters into a significant swing vote. When the GOP became the only party endorsing the “human life amendment,” most leading pro-life groups cast their lot with the Republicans.

By the mid-1980s, however, abortion foes recognized that even if Republicans controlled Congress, the human life amendment would never pass. Desperate for a new strategy, they focused on changing the composition of the Supreme Court in the hope that it would overrule Roe. Allying with the GOP became more important than ever: Republican presidents could select nominees skeptical of Roe, and Republican senators could confirm them. Rather than try to influence legal elites, pro-life leaders set about convincing grassroots activists, even those with no knowledge of the law, that control of the Court was essential.

In 1992, however, a Supreme Court transformed by Republican presidents defied expectations by preserving abortion rights. The Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey convinced many in the pro-life establishment that their movement lacked real influence over the GOP. Despite the presence of Antonin Scalia and Clarence Thomas on the Court, right-to-lifers felt that Republican presidents still too often gravitated to consensus nominees who could sail through Congress—the kind of judges who shied away from overturning a major precedent like Roe. Bopp argued that the movement needed the freedom to spend more on political speech if abortion foes expected more influence—or more say in Supreme Court nominations. He asserted that deregulating campaign finance would help pro-life candidates win—and that if right-to-lifers helped Republicans raise and spend more money, the anti-abortion movement would prove its worth to the GOP.

From the mid-1990s onward, groups like NRLC brought abortion foes into a broader coalition committed to deregulating money in politics. Champions of civil liberties, GOP powerbrokers, advocacy group staffers, and small-government libertarians worked together to deregulate campaign finance. It was far from inevitable that the Republican Party would unite against campaign finance reform. To be sure, business interests that backed the GOP had historically denounced campaign limits, and the GOP often enjoyed a fundraising edge that made it favor more campaign spending rather than less. Nevertheless, in the 1990s, Republicans felt tremendous pressure to embrace campaign finance reforms that many saw as an effort to clean up elections. They also supported campaign limits that hurt union-backed urban Democratic machines. Anti-abortion lawyers gave a crucial boost to the efforts of other Republican insiders, hoping to convince social conservatives and party leaders that opposing campaign finance limits was a matter of principle.

A decades-long attack on campaign finance rules in the courts also helped to cement a conservative political consensus about the issue. In the 1990s, Bopp and his colleagues reframed campaign finance rules as the kind of government overreach that genuine conservatives had to oppose. After the 2002 passage of the Bipartisan Campaign Reform Act, they had begun to focus on donor secrecy and corporate campaign spending, honing a message that would unite business and social conservatives.

By the mid-2000s, however, other conservative attorneys and movements sometimes took the lead in major campaign finance cases and pursued a different tactical plan than the one favored by right-to-life litigators. And some of the changes to campaign finance rules did not reflect the strategy of any litigator or movement, beginning instead with the reasoning of a new conservative Supreme Court majority. But even when other conservative movements dictated strategy, right-to-lifers understood more than enough about what changed campaign finance rules could mean for the Republican Party: the new laws gave conservative movements a chance to take power away from the GOP establishment.

As anti-abortion groups made campaign finance a priority, NRLC leaders also retooled their strategy to dismantle abortion rights. Larger anti-abortion groups would shift to promoting abortion restrictions that enjoyed the most popular support, and these restrictions, in turn, would increase public approval of both the GOP and the anti-abortion cause. Helping the GOP outraise and outspend the opposition would give abortion foes more allies in the White House and Congress. More GOP leaders in office created more opportunities to transform the Court and overturn Roe. This plan of attack helped produce a series of Supreme Court decisions, including Gonzales v. Carhart (2007) and Citizens United v. Federal Election Commission (2010).

From Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment by Mary Ziegler. Published by Yale University Press in 2022. Reproduced with permission.

Mary Ziegler is a professor of law at the University of California, Davis, School of Law. She is one of the leading historians of the abortion debate and the author of three prior books on U.S. law and politics, including the award-winning After Roe: The Lost History of the Abortion Debate.

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