Abortion Within Providence - II

Roe+50: The outrageous series of coincidences that led to Dobbs.

“Job and His Comforters,” Luca Giordano, 18th century. Also pictured: me, all too often.

Once history has happened, it comes to seem inevitable. What happened, happened, and so it was always bound to happen. The forces that brought about a turning point in history were so powerful that they could not possibly have been turned back by mere chance.

This is often true, especially in military history. There have been many great battles. Fewer, however, have changed the final outcome.

For example, take the Battle of Midway. In 1942, the larger and more experienced Imperial Japanese Navy had repeatedly defeated the U.S., pushing us back across half the Pacific. The Japanese had ten aircraft carriers and light carriers to our five—including the dread Kido Butai, the most destructive naval strike group in the world, led by the most experienced aircraft carrier commander in the world, staffed by the most experienced (and successful) carrier fighter groups in the world.

Admiral Nimitz’s daring, risky plan put all his seaworthy carriers on the line, along with a large fraction of U.S. naval strength. It paid off! Nimitz annihilated the Kido Butai, sinking four of Japan’s strongest carriers and killing much of its corps of experienced pilots and officers. This triumph gave the U.S. naval superiority in the Pacific, and allowed us to begin offensive operations. This culminated in the isolation and bombardment of the Japanese home islands, causing their surrender. The Japanese surrender was born at the Battle of Midway.

But what if Nimitz’s plan had backfired? What if the Japanese navy had been slightly luckier, located U.S. Task Force 17 at 6:15 AM, and annihilated them instead? The Japanese could have then raided Hawaii with impunity—perhaps even invaded. American offensive operations in the Pacific would have been impossible. The Japanese would have successfully completed their base on Guadalcanal. Instead of surrendering unconditionally in August 1945, Japan may have ended up surrendering unconditionally in early 1946, or maybe September 1945.

That’s right: even a Japanese triumph at Midway would have extended the war by, at most, a span of months. Japan never had the capacity to capture Hawaii, much less force United States capitulation, because our industrial production base was simply overwhelming. As it turned out, Midway was the turn of the tide, but the tide was always going to turn eventually.

This was not the case for the fall of Roe v. Wade, whose 50th birthday would have been celebrated today. This may be the last year on which I feel compelled to write a fresh post to mark that grimmest anniversary, because today I can finally reflect on Roe’s long-deferred end.

Roe fell—and has so far stayed fallen—thanks to the hard work of millions of unborn-rights supporters, who worked tirelessly for decades to erode its frightful edifice on every side. Future civil rights ceremonies will remember the names of heroes like Marjorie Dannenfelser, Dr. Bernard Nathanson, Lynn Fitch, Teresa Collett, Bob Pearson, Mary Ann Kuharski, and the thousands and thousands and thousands and thousands of others who, for generations, spread the word to the public about the humanity of the unborn child and the horror of abortion; advocated for the child in courts of law; fought for the child in the legislatures; and (above all) helped needy mothers with whatever they needed so that they, too, could support and protect their own children. Working everywhere from the streets outside abortion clinics to the Oval Office, these people saved hundreds of thousands of lives in the years before Dobbs. They are poised to save millions more in the future. Roe could not have fallen without them. Their hard work was necessary.

But it was not sufficient.

The victory in Dobbs was nothing like Midway. Our triumph at the Supreme Court was not inevitable—not yesterday, not today, not in a hundred years. The pro-life movement has never enjoyed operational superiority in virtually any area. We are always financially outspent. We have never received even a convincing pretense of fair coverage from a hostile press. The web of ideologically-captured institutions sometimes called The Cathedral—composed of the universities, the ABA, the AMA, the ALA, the government bureaucracy, essentially all NGOs, executive C-suites, the professional bourgeoisie—has openly declared its allegiance to the other side throughout. Our greatest strength is our numbers, but, even there, we have often found ourselves evenly matched (or worse), and had to parlay ourselves into less decisive (but more popular) strategic positions.

By rights, we should have been defeated and politically extinguished… just like the pro-life movements in Canada, England, Scotland, Ireland, Australia, and virtually every other first-world country you care to name.¹

Consider everything that had to break just right in order to get us to this point:

Until the 2010 midterms, there was very little discussion, even on the right wing, of fetal personhood as a matter of law. We all knew we considered unborn children people (because they obviously are), but were skittish about the political implications of making laws based on that consideration. Trigger bans were rare, and the entire Republican Party considered it politically vital to exclude the children of rape from any fetal protection laws. That changed starting around 2011, with the great red wave that swept the nation. Red states across the country began diligently preparing for a post-Roe world that would actually acknowledge the lives of the unborn from conception forward. By 2012, Marco Rubio was openly defending the “rape exception children” on national television—during a presidential primary!

As I considered a year ago, this shift was essential. If states had not been ready with bans already in place, if legislators had not been given stiff spines by a decade of polarization and hard work by pro-lifers to move the Republican Overton Window, our victory in Dobbs could not have translated into saved lives on the ground, and the backlash would have paralyzed our efforts for years. It could well be the case that, had Roe fallen in 2007, we would be in a worse position in 2023 than we are in actual 2023.

Yet the gradual Republican alignment with the pro-life movement was only laying the groundwork. As recently as early 2016, there was a 3-2-4 division on abortion at the Supreme Court. The 3 wanted to overturn Roe and return it to the states; the 4 wanted to absolutize Roe and abolish all abortion restrictions everywhere at every stage of pregnancy. The 2 (Kennedy and Roberts) wanted to freeze abortion law where it was in 2007. Abortion advocates needed to replace only one of their five opponents to make Roe unlimited. Abortion opponents needed to replace two of their much younger opposition to end Roe. Not only had opponents not controlled the White House in eight years, but they had a horrendous record of actually identifying and installing anti-Roe textualists on the Supreme Court! (In 36 years, pro-life presidents had appointed eight justices. Four of them—O’Connor, Kennedy, Souter, and Roberts—had ended up supporting Roe. Pro-choice presidents had never misjudged like that, not once.) Any reasonable analyst would have said that the best pro-lifers could reasonably hope for during the coming decade was to continue the stalemate and keep trying to press creative pro-life measures forward to probe for cracks. Many said just that!

Then, while pro-choice President Barack Obama was still in office, anti-Roe Justice Antonin Scalia died. In modern history, only one president had been denied his chosen Supreme Court nominee (Reagan in 1987), and Senate Democrats, fighting with everything they had, were only able to keep the seat empty for eight months. When Scalia died, there were still nine months until the election, and eleven months before the end of Obama’s term. At first, it seemed almost certain that the Supreme Court would become 2-2-5 in favor of expanding Roe, especially as Obama offered Republicans a nominee with sterling credentials (the best credentials for a Supreme Court nominee since Robert Bork) and a reputation (albeit not a particularly well-deserved one) as being only moderately left-wing—a judge named Merrick Garland. Republican Senate leader Mitch McConnell is a dyed-in-the-wool pragmatist; he would much rather take a small victory (or even a tactical retreat) over a high-stakes gamble on a big but unlikely victory far in an unforeseeable future.

Yet, thanks to a curious mix of circumstances—including a surprisingly large majority that had won several upsets in 2014, residual anger over Senate Democrats’ destruction of the filibuster in 2013, the aforementioned stiffening of the pro-life spine, and the fact that Scalia had happened to die smack in the middle of a potentially destructive primary season, plus a tough fall election map—Mitch McConnell convinced his caucus to roll the dice on a massive gamble: denying the Supreme Court seat to President Obama while hoping that President Marco Rubio (who still had a good shot at winning the GOP nomination at that time) defeated the powerful Clinton machine in November. The odds were strong that Merrick Garland would replace Justice Scalia on the Court, and that would have been game over.

But, incredibly, he didn’t.

Then, the Republicans nominated Donald Trump for President. I will not explore the counterfactual of whether another nominee would have done better or worse against Hillary Clinton. I will only note that Trump fought a deeply troubled underdog campaign from the start. Clinton’s post-convention bounce eclipsed Trump’s, and her FBI exoneration in July (however flawed) took a big weight off her campaign. Trump was then marred by the “grab ‘em by the pu**y” tape, followed quickly by three debate appearances in which most commentators thought Trump was creepy, ineffective, and off-putting… and the polls showed that America agreed. Trump was able to pull it back close again in the final days, just because America hated Hillary, but (in retrospect) we can see that he clearly did not have the votes to get over the finish line, but for two things:

1. Republicans who loathed Trump but who were so terrified of what Hillary Clinton would do with Antonin Scalia’s Supreme Court seat that they’d hold their nose for him anyway.² If Scalia had lived through the election, Trump probably would not have won, and the 3-2-4 stalemate would have continued.

2. The freakishly unlikely discovery of Hillary emails on Anthony Weiner’s laptop during an unrelated probe, leading to James Comey publicly re-opening his investigation just days before the election. The Comey Letter of October 28th probably cost Clinton the election. It was practically a deus ex machina in how convenient it was.

It’s not like Trump won by a landslide. He lost the popular vote, and won the electoral vote by the skin of his teeth. If just 50,000 voters in Michigan and Pennsylvania—just 0.04% of total votes cast—had flipped their votes, President Hillary Clinton would have won the election. She would have put Sri Srinivasan in Antonin Scalia’s seat and that would be game over for pro-lifers.

But, incredibly, she didn’t.

President Trump surprised many of us (me included) by keeping his promises about the federal judiciary. He nominated the highly reputable Justice Gorsuch to fill Scalia’s seat, and the Republicans were happy to demolish the remains of Reid’s tattered Senate filibuster to do it. Although it’s possible to imagine a world where Democrats won two more seats in the 2016 Senate elections and managed to deny the filibuster-buster, Gorsuch had a fairly straightforward road to the Court after the ten-month battle to keep his seat open.

The next nomination battle was hardly so smooth. By the time Brett Kavanaugh sat at the witness table, the Senate was almost evenly divided, 51-49. The campaign to stop his nomination was legendary. Whether the allegations against him were true or false is today a scissor statement. Let it suffice to say that there was much reason to believe that he would lose. (I suggested offering him up as a sacrifice.) His final confirmation came down to a simple question: did Sen. Susan Collins (R-Maine) think she had a better chance of winning a primary after voting against Kavanaugh, or of winning a general election after voting for him? A reasonable person might have bet on pro-choice Collins (who has sunk a number of GOP priorities during her career as a “moderate”) voting down the Kavanaugh nomination. With a fall Senate election imminent, who knows where that might have taken us? But she didn’t.

The Supreme Court was not inactive during this time. A crucial decision was coming. June Medical Services v. Russo was heard in March 2020. This was an important test for the incremental approach to ending Roe. June Medical Services was essentially reconsidering Whole Women’s Health v. Hellerstedt (2016), a recent decision that had (IMO wrongly) declared a wide range of state measures designed to protect and promote unborn children “unconstitutional.” As I explained in my preview, if the Supreme Court reversed (or merely distinguished) Hellerstedt, it would reopen that door—and, by reversing an abortion precedent, any abortion precedent, would light the way toward the gradual, years-long process of dismantling Roe that I had always envisioned.

At the risk of alienating some readers, I will admit here that I prayed very hard just before June Medical Services came down. I prayed Memorare after Memorare for wisdom and understanding on the Supreme Court. I didn’t just ask for wisdom for John Roberts, since almost everyone expected Roberts to ultimately deliver a victory to the pro-life side. (After all, he had dissented in Hellerstedt and who had long made anti-Roe noises.) I asked for a unanimous decision. I asked for a broad decision.

And I got… nothing. We decisively lost June Medical Serviecs, 5-4. Roberts openly joined the pro-Roe justices for the first (hardly the last) time. Although I know intellectually that it is foolish to be angry at God about anything—especially courtrooms a thousand miles away, when there are people suffering right here in my neighborhood—I was nonetheless very angry with God for a while after that. We had lost and lost and lost on abortion cases where we’d had every reason to expect victory, over and over again. Forty-seven years of hard work and nothing to show for it but a pile of baby skulls as high as Mt. Everest.

And nothing was likely to change anytime soon! Trump had already had his two Supreme Court picks, and seemed at best a tossup against Joe Biden in the coming fall elections! If we couldn’t even reverse a tiny precedent like freaking Hellerstedt after filling two Supreme Court seats, when would we even have a shot at taking out a big boy like Roe? What, after all, is the point of praying, if providence never ever comes through, no matter how many people devote their lives to the cause, for decade after decade? I spent a few weeks at Perpetual Adoration just glaring at the Blessed Sacrament.

Little did we know when June came down that pro-Roe Justice Ginsburg’s cancer had returned with a vengeance, and she would soon depart the Court—mere weeks before a presidential election. This was outrageously unlikely. It was also the only way Republicans could hope to avoid permanent John Roberts-imposed stalemate at the Supreme Court, especially with President Trump lagging in the polls.

Luckily for Republicans, their Senate majority had expanded in 2018, despite heavy backlash against Trump that year. This was due entirely to freak circumstances involving the particular makeup of the 2018 Senate map. Had the map been slightly different, Democrats would have won the Senate and prevented Trump from replacing Ginsburg at all.

Even the Republican majority that had confirmed Kavanaugh probably would not have had the votes to confirm anyone prior to the imminent elections—it would have come down to pro-choice Susan Collins again, except she’d already won her primary and now needed to worry only about winning her blue state. Certainly a majority of only 51 could never have confirmed Amy Coney Barrett, who had been considered too “extreme” (read: her philosophy was too obviously incompatible with Roe) in 2017.

But, incredibly, Republicans had 53 Senate seats deep in the term of an unpopular Republican president, and so used those seats to confirm Barrett just weeks before their majority was converted into a minority by the election results. If they hadn’t done so, President-Elect Biden would have appointed Ginsburg’s replacement, and Justice Roberts would have ensured abortion stalemate as far as the eye could see. But he didn’t.

President Trump lost his re-election campaign—in a nailbiter. Just as in 2016, flip a few thousand votes in a few key states, and Trump would have won. I wanted him to beat Joe Biden. However, with the benefit of hindsight, I breathe a sigh of relief: had Trump won, the pro-life movement would have been in an absolutely incredible amount of trouble. (I’ll come back to that in a minute.)

At the same time, if Trump hadn’t kept it as close as he did, then Republicans would have lost just a couple more Senate seats, and that, too, would have put the pro-life movement in an absolutely incredible amount of trouble. With just a couple more Senate seats, Democrats would have the votes to break the filibuster and pack the Supreme Court, nullifying the anti-Roe majority before it could act on Dobbs.

The success of the pro-life movement in 2022 depended, to an enormous extent, on Trump losing the 2020 election, but Republicans retaining at least 48 seats in the Senate during that same election. The odds of that exact combination happening were quite small, like hitting a bullseye on a moving target—maybe 20% odds—and yet, incredibly, it worked out exactly how it needed to.

Finally, Dobbs itself came up the pipeline, a fifteen-week ban from Mississippi challenged for violating the “viability rule” of Roe/Casey. Very few of us expected the Court to hear this case.

And it didn’t. For the longest time, it didn’t! Most cases go to the Court, get discussed for maybe four to six weeks in conference, and then are either accepted or rejected. Not so Dobbs: Dobbs spent almost the entire Supreme Court term—nearly a full year—in limbo, bouncing around from conference to conference, neither granted nor denied. I have very occasionally seen that happen to a hot potato case… but it usually spells doom for the case, and the justices quietly discharge the case late in the term. I have never seen a case spend that long and limbo and then get granted anyway.

But, somehow, that’s exactly what happened.

I won’t try to reconstruct exactly what happened to Dobbs during that year in limbo (although my speculations are here), but I think it’s reasonable to think that one or two justices (likely Kavanaugh and/or Barrett) were torn between an incremental approach to dismantling Roe versus the direct, one-and-done approach that they ultimately took. (Small evidence for this: the Court held a possible “incrementalist” abortion case, AMA v. Azar, in a similar limbo, but denied it the same day they granted Dobbs.)

What June Medical Services showed them—as it showed all of us—was that the gradual approach was a painful illusion, and that the four pro-Roe justices left on the Court after Barrett’s nomination would fight, screaming, every step of the way to the end of Roe, no matter what law or precedent said. With the incremental approach discredited, a cautious justice (again, I suspect Kavanaugh and/or Barrett) was likely eventually persuaded that the only thing to do—as a matter of law, of justice, of institutional integrity—was to just face the abortion question directly, tear off the band-aid, and end Roe.

This was clearly a very close question, and a very difficult one, because otherwise Dobbs would have been granted (or denied) months and months earlier. If June Medical Services had come out the other way, if Roberts hadn’t fully committed himself to the preservation of Roe, then I think that would very likely have tipped the balance the other way. Azar would have been granted, Dobbs denied, and Roe would still be on the books today—perhaps for another five years, if the incremental approach worked; perhaps forever, if something unexpected happened to derail the dismantling. In this interpretation, our defeat in June Medical Services was a necessary prerequisite to our victory over Roe just two years later.

Knowing what we know now, I’m not surprised that we won Dobbs once it had been granted. There were no outrageous coincidences conspiring to make that happen. It just required five textualist judges to cast five textualist votes. There was the leak of the opinion, but we still don’t know enough to say whether that hurt or helped the cause of the unborn.

What I am surprised by, knowing what we know now, is that we (more or less) stuck the landing.

The pro-abortion backlash to Dobbs was, frankly, stronger than I expected. I had expected it to be net-neutral. Instead, it clearly hurt Republicans. It’s hard to measure the magnitude of the hit (because of the complicating factor that Trump-backed and Trump-oriented candidates were an even bigger drag on the ticket), but it’s reasonable to argue that the national 2022 House Popular Vote would have been 2-4% more Republican if Dobbs had never happened.

Fortunately, Republicans were running against a Democratic president³ who had presided over a muddled pandemic response, a failed withdrawal from Afghanistan, an inflation crisis, shortages in everything from eggs to baby formula, sky-high gasoline prices, and a failure to predict or deter Vladimir Putin’s designs on Ukraine. Incumbent presidents always lose seats in the midterms, and these disasters multiplied Republicans’ opportunities. But those opportunities fizzled. Thanks largely to weak candidates, but partly thanks to Dobbs, Republicans enjoyed only mediocre gains, taking back one house of Congress by a narrow margin.

Now imagine if President Trump had still been president.

Trump still would have had most or all of the problems Biden had. Biden’s Afghan policy was pretty much the same as Trump’s. The supply-chain and inflation crises were bound to hit no matter what in the years after covid, and, while a president can act to mitigate such a crisis, he cannot avoid them—and President Trump, in his unhealthy rants at the Fed for countercyclically raising interest rates (exactly like it should) in 2018, had shown that he was more likely to exacerbate rather than mitigate an inflation crisis. Certainly it seems unlikely that President Trump could have forestalled Russia’s invasion of Ukraine, especially after Trump’s relationship with Ukraine cratered during his first impeachment. As an incumbent president facing a range of crises, Trump and his party would have been punished in the 2022 midterms.

Add the same batch of weak candidates, plus general anti-Trump rage, then sprinkle the Dobbs backlash on top, and 2022 could have been the blue wave to end all blue waves. A filibuster-proof Democratic Senate majority is quite imaginable, along with Democratic trifectas or state legislative control even in many purplish-red states like Georgia. With abortion policy returned to the states, those trifectas could immediately get to work dismantling pro-life laws. With vast House and Senate majorities, national Democrats would need only wait until President Trump was term-limited out to retake the White House, pack the courts, and pass a national law enshrining abortion rights everywhere forever. We would have won the court battle in Dobbs only to lose the political battle at the ballot box.

Instead, we are well-positioned to wage a long campaign on behalf of the unborn, consolidating protections for them in a wide range of friendly states while fighting incrementally on their behalf in less friendly ones. Elective abortion has ceased to exist in a large swath of the country, and there’s no realistic risk of its returning to many of those states during the foreseeable future.⁴ We have a House majority and a very favorable set of conditions for a Senate majority and the presidency in 2024 (although there are still many ways to lose). That possible trifecta could begin to establish certain incremental protections for the unborn nationwide. We are beginning to settle in as the status quo in many states, and are showing voters that the sky has not fallen (much as the media is trying to make the sky fall⁵ by sheer force of will). The March for Life this year was as impressive as ever (also at the state level), and appears to have eclipsed the rival pro-Roe Women's March by an order of magnitude.⁶ The hearts and minds we still have to change are many, and it isn’t going to be easy, but we’ve won a great victory and are poised to win several more in the coming year.

But if Roe had fallen before the Republicans got serious about fetal personhood… our road ahead would have been a very hard slog, at best, and there’s a good chance that abortion would have won just as it has everywhere else in the developed world.

If Harry Reid hadn’t nuked the filibuster in 2013… Roe stands.

If Scalia had lived… Roe stands.

If McConnell hadn’t uncharacteristically gambled… Roe stands.

If Anthony Weiner hadn’t been found with Hillary emails on exactly the right week… Roe stands.

If Susan Collins had judged her voters differently… at the very least, delay, and, at worst, Roe stands.

If Roberts hadn’t abandoned textualism in June Medical Services… Roe (probably) stands, albeit with a plan to eventually hopefully dismantle it.

If Justice Ginsburg had died just a few weeks later… Roe stands.

If Trump had won the 2020 election… Roe falls but abortion wins.

If Republicans hadn’t won 48 Senate seats while losing the White House in 2020… … Roe falls but abortion wins.

If Republicans hadn’t won the House in 2022… Roe falls but abortion wins.

So if just one of these things had broken the other way, things would probably be much worse for pro-lifers today. Given the free will of voters and certain basic facts about the makeup of America’s institutions since 1973, it seems that we currently live in a timeline with something close to the maximum number of children saved, with tremendous potential (albeit with a lot more hard work) to eventually save all of them.

The series of coincidences that added up to our current position is akin to the series of coincidences that would have had to mount up in order for Japan to have won the Pacific War. All our hard work was necessary, but not sufficient. In retrospect, Dobbs should not have happened.

But it did.

If you are an atheist, you are of course free to conclude that this was all just an outrageous chain of coincidences, not that much different from many other outrageous chains of coincidence that tilted history in one direction or another.

But I am not an atheist. So let this be a lesson to you, angry-James-at-Adoration-in-2020:

God needs our time, our talent, and our treasure… but He is the one with the big picture, He is the one who knows best, and He is the one who takes our necessary work and makes it sufficient to actually change the world. It’s trite to say that prayers are answered in God’s time, not ours. It’s easy to see it as an excuse for why God isn’t answering a prayer at all! But I now see that, sometimes, the reason God bides his time is (in retrospect, and with some discernment) visible to even an ordinary fool like me.

Surely I spoke of things I did not understand, things too wonderful for me to know. You said, “Listen now, and I will speak; I will question you, and you shall answer me.” My ears had heard of you, but now my eyes have seen you.

Therefore I despise myself and repent in dust and ashes.

UPDATE 11:21 AM 23 January: Fixed a couple typos; added a link, an “albeit,” and (in a footnote) Sarah Kliff.

1. It’s weird that anyone cares whether the Tories or Labour wins the next U.K. election; or whether the Conservatives or Liberals win in Canada. They’re all equally committed to denying the right to life. What’s the point?

2. Many of these hold-your-nose supporters later became devout Trumpers, which is a particularly good example of a very important, often-forgotten rule of voting: unless you are very careful to recognize and fight against it, the sins of the person you vote for are often reflected back into your personal identity. The biggest impact from your vote is not on the country—your vote never changes the election outcome—but on your own soul.

Biden voters who imagine themselves to be supporters of unborn rights, take note, because we all saw the same thing happen to you.

3. Joe Biden himself, who deep down on some level seems to suspect that he might go to Hell for his abortion stances, has consistently done the bare minimum on abortion to keep his base from tearing him apart. Sure, he expanded medication abortion… but dragged his feet for months, and added sensible but unpopular-with-his-base restrictions on its distribution. Sure, he issued a lot of angry statements against Dobbs, but he didn’t take up the Left’s position that the President should make red-state military bases available as “abortion green zones”. Biden is very bad news for the unborn, but he’s also the least-bad Democratic president plausible here in the 2020s. This, too, is pretty lucky.

4. The foreseeable future is about ten years. Some may argue this, but this is where I plant my flag.

5. It’s extremely impressive, when you think about it, how the media has managed to report every case of a mother denied an abortion during a medical emergency in the past six months—even when those abortions were, in fact, clearly authorized by law and appear to have been denied for incoherent or political reasons—while that same media has managed to completely miss every case of a mother killed by a legal abortion in the past fifty years. Obligatory callout here to Sarah “Local Crime Story” Kliff!

6. Maybe two orders. I’m having a hard time finding crowd shots of Women’s March rallies this year.