The night the Texas twenty-week abortion ban passed, Cecile Richards couldn’t sleep. She was confident that the law could be overturned at the Supreme Court, where Roe was the law of the land, but she kept thinking about the people she’d met, the effort they had mounted, the experience of it all. These people, all these women who showed up, who left work early and brought their daughters and told their stories and cried and screamed and shouted—those people were voters. And they were energized by abortion rights, Richards thought. They had lost this particular battle, but still Richards believed Wendy Davis had ignited something new.
The filibuster rocketed Davis to fame and helped create space for a more open national conversation about abortion. Davis devoted pages in her memoir to her experience with Tate, and Richards told her abortion story in Elle. The abortion “wasn’t a difficult decision,” Richards wrote. “When politicians argue and shout about abortion, they’re talking about me—and millions of other women around the country.”
Davis was a heroine for the abortion-rights movement, expanding the values of Obama’s America. And in a heroine’s story, the fact that she lost one battle wasn’t the main point. It was the uprising she caused that mattered. Davis showed Democrats a new political opportunity, a chance to take Texas back or at least send a serious message that even in conservative ranchlands—the heart of Republican America—liberal views could gain momentum.
Vogue invited Davis to pose in its pages, and top party strategists in Washington urged her to run for governor. Democrats brought her to Congress for meetings and celebrations. Davis raised $1 million and launched a national tour, building her network of financial supporters. Her effort was a long shot: no Democrat had won statewide office in Texas since Ann Richards did in 1990. To win, she would have to run a near-perfect campaign.
Ann Richards’s election in conservative Texas was, Richards admitted, close to a political “miracle.” But she was hopeful it could happen again. Planned Parenthood promised to spend $3 million on the race as Richards anointed Davis with the image of her mother. “Mom was an authentic Texan, just as Wendy is,” Richards told the magazine Texas Monthly. “And Wendy’s story is the Texas story.”
Yet there was another story happening in Texas too. Planned Parenthood sued to stop the new requirements on clinics and abortion doctors. But its litigation did not address the part of the law that prohibited abortion at twenty weeks. The case, the lawyers suspected, would eventually be taken by the Supreme Court, where Justice Anthony Kennedy would likely be the crucial swing vote. They worried he might uphold a twenty-week ban. In Gonzales v. Carhart, the case over banning partial birth abortion, Kennedy the court’s swing vote on abortion rights, wrote critically about abortion later in pregnancy, describing graphic details and speculating that some women might regret their decision.
Contesting the twenty-week ban could lead Kennedy “to view the whole case in a negative light,” said Stephanie Toti, the lawyer from the Center for Reproductive Rights, who was leading the case on behalf of Planned Parenthood, the American Civil Liberties Union, Whole Woman’s Health, and the other organizations involved with the litigation. They decided to leave the twenty-week ban part of the law unchallenged to avoid turning Kennedy against them. “We would take an incremental approach,” said Toti. “Then we could circle back using the precedent that we created to go after the twenty-week ban and other restrictions that had been in Texas law.” Besides, the twenty-week ban was dated to a woman’s last menstrual cycle, meaning that in practice it was actually closer to a twenty-two-week ban. A larger percentage of fetuses could possibly survive outside the womb at twenty-two weeks than could at twenty weeks, making the Texas law a less clear-cut violation of Roe’s viability standard.
As the case proceeded, the law took effect and abortion providers were powerless to stop the real impact on women in Texas. Republicans held a trifecta of power in the state—control of the House, Senate, and governorship—meaning no legislation undoing the restrictions would be likely to become law. Their case against this law could take years, a long road of appeals and filings. The number of clinics began dwindling. Before the law went into effect, there were forty-one facilities providing abortions in the state. Four months later, the number had dropped to twenty-two.
The diverging narratives—one planning for legal victory at the high court and another facing losses in Texas—revealed the central paradox of this new decade on abortion. At the national level, abortion rights were strong, protected by the Supreme Court and backed by the Democratic Party. But in Republican states across the country, they were growing weaker by the year.
For national Democratic leaders, the political stakes felt, if not low, certainly not existential. Roe loomed so large in American life that it was almost impossible to imagine that it could disappear. Every election Democrats and their allies in the abortion rights movement warned voters about the potential consequences to abortion rights, should they vote Republican. But truthfully, almost no politician, strategist, or official on either side of the aisle really believed Roe would fall. It was an established legal precedent for forty years. Yes, the court had been chipping away at it since then, with cases like Webster and Casey. But aside from a persistent group of antiabortion believers, who were on a spiritual mission to undo the decision, Roe was simply part of American identity.
Even Nancy Northup, the former prosecutor who headed the Center for Reproductive Rights, which had joined Planned Parenthood in the case against the Texas law, didn’t think Roe was directly at risk. Her group was filing brief after brief, challenging the new restrictions popping up across the country. It was impossible to keep up—as soon as one law was challenged, another appeared. And Northup, who rarely minced words, knew that they couldn’t keep up. As far as she could tell, the antiabortion movement’s strategy was to chip away at abortion rights until there was nothing left, rather than strike directly at Roe. She offered a solution to her Democratic allies in Congress. They could codify Roe into federal law, protecting women in conservative states from these kinds of restrictions. She wanted to call her new bill the Roe Restoration Act. But polling showed the case didn’t resonate with voters, who didn’t really see it at risk. Better to put the words women and health in the title, her political strategists said. The title became the Women’s Health Protection Act.
It wasn’t an easy case to make: Democrats didn’t see the new state restrictions as a priority in a world with Roe. And anyhow, even though they controlled the Senate, there weren’t enough Democrats who favored abortion rights to pass the bill. The proposal died in committee, never even making it to a vote. Democratic strategists largely saw Northup’s legislative effort as a waste of time. They didn’t see the value of pushing abortion rights as a message, if it wasn’t the issue that motivated their voters in elections. Besides, at least five Democrats were shaky on abortion rights in the Senate, and making them take a vote on the issue could come back to hurt their chances in the coming midterm elections.
IN THE SUMMER of 2014, with the midterms looming, Richards faced a setback. The Supreme Court ruled in Burwell v. Hobby Lobby that the Christian-owned craft store and other for-profit companies were not, in fact, required to provide contraception coverage to their employees against their religious objections, despite what President Obama promised Richards in that phone call a year earlier. The ruling undercut the victory Richards described as her proudest professional moment. It was upsetting, she said, but even with this loss, more than thirty million women already had access to the free contraception benefit in Obama’s health care law. The law, she wrote, remained “the biggest step forward for women in a generation.”
Still, another moment that had seemed like a victory had become another defeat. Like the Texas law, the ruling was a hairline crack, one that seemed so small it could be hard to see clearly, given the left’s sense of Roe’s inviolability. And it wasn’t the only one.
Where Richards saw the health care law as a big win, another smaller coalition of activists argued they had given up too much ground. The abortion-rights movement was dominated by four big organizations. Planned Parenthood was the health care arm. The Center for Reproductive Rights functioned as the law firm of the movement. NARAL was the political operation. And EMILYs List funded Democratic candidates who backed abortion rights. All were run by white women. Each had more money than SBA and the other antiabortion groups.
But there was also a constellation of far smaller, largely Black and Hispanic abortion-rights organizations, part of the reproductive justice movement that orbited Planned Parenthood. These activists believed existing rules restricting abortion access made Roe already an illusion to many low-income women. They saw the new health care law—which did not undo the most onerous of those restrictions—not as a generational win but a generational defeat. To get enough votes to pass the health care bill, top Democrats had made a deal with the antiabortion wing of their party. The new law would reaffirm the Hyde Amendment, a 1970s policy that banned federal funding for abortions to women insured by Medicaid and had been reaffirmed for decades as part of the federal budget. The Hyde Amendment had a big impact on low-income women, who were disproportionately likely to rely on Medicaid for their healthcare coverage. About 75 percent of abortions were among low-income women, and of those, just more than half of the patients were non-white women. For some of these women, the cost of an abortion was prohibitive. The median out-of-pocket cost was $575, one study found, more than a third of the monthly income of most women insured by Medicaid.
Richards knew that Democrats didn’t have the votes to end Hyde. With the dozens of antiabortion Democrats in their ranks in 2009, they’d barely been able to keep their coalition together to pass the health care law. “You always wish you could have done more,” Richards later acknowledged. But she insisted that their best opportunity during the Obama administration had been to get birth control covered and ensure that abortion coverage wasn’t banned entirely under the new law. Still, the disagreement over what, exactly, constituted a victory for their movement weakened the coalition. To the Black and Hispanic reproductive justice activists, the new health care law, which left the Hyde Amendment intact, was a sign that the biggest organization in their world was willing to trade away their rights.
Three years later, more fissures surfaced when Planned Parenthood launched a new messaging campaign that dumped the decades-old terminology of pro-choice for a broader approach. “When it comes down to it, we just don’t know a woman’s specific situation. We’re not in her shoes,” read Planned Parenthood’s new tagline, in a video released to mark the fortieth anniversary of the Roe decision. “So the next time you talk about abortion, don’t let the labels box you in.” The new messaging frustrated reproductive justice movement activists who had always believed that the fight for abortion rights couldn’t be severed from the economic, justice, housing, and maternal health care struggles that disproportionately affected the reproductive lives of women of color. Now, it felt like Planned Parenthood was stealing their approach and acting like it was its own.
“If we don’t stop this now, our organizations are going to disappear. They’re going to close,” said Monica Raye Simpson, the executive director of SisterSong, a collective of abortion-rights organizations run by women of color. “They will be absorbed into this white feminist agenda.”
Some establishment Democrats, too, rejected the new approach. “Pro-choice” might be a dated rallying cry, but it fit on a campaign sign. Planned Parenthood’s new approach lacked the clarity of its opponents’ tactics, which cast the issue in starkly black-and-white terms. Even Richards, at her press conference unveiling the new messaging, acknowledged that the group’s new approach wasn’t quite “bumper-sticker ready.” The simmering frustrations—both from the reproductive justice movement and Democrats—revealed that Planned Parenthood, the largest organization standing between the antiabortion movement and the American people, had critics even within its own coalition.
At the time, these fractures seemed like small setbacks in a war that abortion-rights activists were winning. Even with the Hobby Lobby ruling, abortion rights still had their movement’s champion on the court: Justice Ruth Bader Ginsburg, who had responded to that decision with one of her signature dissents. In a sign of the depth of her concern, the senior member of the court’s liberal bloc read portions aloud from the bench. Approving only some religious claims for accommodation risked the court favoring one religion over another. “The court, I fear, has ventured into a minefield,” she wrote.
At eighty-one, Ginsburg was a feminist icon who had reached the peak of her profession. Since her nomination to the bench in the wake of the “Year of the Woman,” she had risen to become the “Notorious RBG,” a nickname first coined by a blogging law student that exploded into the popular consciousness. Her face was emblazoned on pins and magnets, feminist greeting cards and coffee mugs. Mothers even dressed their daughters as “baby Ruthie” for Halloween.
Ginsburg herself was never all that fond of Roe. Fundamentally, she agreed that there should be a constitutional right to an abortion. But she disagreed with how it happened. “The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting,” she wrote in 1984. “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
She also believed the court had made the right ruling based on the wrong argument in 1973. Abortion rights weren’t about privacy, she argued, but rather should be rooted in gender equality. Ginsburg wished the court had established a right to equal protection for women. The justices could have done that, she thought, if they had taken up a different case also from the early 1970s. Back then, Ginsburg represented Captain Susan Struck, a nurse who was serving in Vietnam when she became pregnant. The US military at the time required women to leave the service if they became mothers. Struck, a Catholic, wanted to carry the pregnancy to term and keep her job. Ginsburg appealed to the Supreme Court on Struck’s behalf, which eventually agreed to hear the case. Then, the Air Force relented, rendering the issue moot. The fact that the case did not reach the high court meant the justices did not examine how pregnancy affected women’s equal protection under the Constitution.
A few months after Hobby Lobby, shortly before the midterm elections, Ginsburg explained how grounded Roe had become in American life. Between questions about her workout routine and what she watched on television in an interview with Elle magazine, Ginsburg opined on the permanence of the decision. In fifty years, she said, no one would be able to understand how the court could have ruled against contraception. The right to an abortion, she believed, would remain standing because America had come to see it as foundational.
“One of the reasons, to be frank, that there’s not so much pro-choice activity, is that young women, including my daughter and my granddaughter, have grown up in a world where they know if they need an abortion, they can get it. Not that either one of them has had one,” she said. The state restrictions, she noted, were mainly an issue for poor women. Eventually, those would also fall. “The country will wake up and see that it can never go back to [abortions just] for women who can afford to travel to a neighboring state.”
Ginsburg didn’t plan on going anywhere. Obama gingerly hinted at the possibility of retirement in a private lunch with her right after Davis’s filibuster and raised the prospect that Democrats could lose control of the Senate in the midterms. The political map favored Republicans, with control of the body hinging on races in conservative states, and the party of incumbent presidents typically lost seats in midterms. If the Senate flipped, Obama would not be able to appoint a justice to the court who could continue the liberal legal project for decades.
Ginsburg responded with the court’s version of a public reprimand. Even if she retired, she said in a rare interview, Obama was more likely to appoint a compromise candidate than a true liberal like she was. “There will be a president after this one, and I’m hopeful that that president will be a fine president,” she told The New York Times.
Presidents would come and go, Ginsburg implied, but the Supreme Court was for life. While Washington descended into partisan warfare, the court remained set apart, a lone bastion where comity still reigned. Ginsburg was known for her friendship with Justice Antonin Scalia, her ideological opposite in most every way. Debate and disagreement would happen on the bench. But the acrimony could be left there. Their much-lauded friendship was a symbol of a political world where bipartisanship was possible and ideological differences were not moral failings.
That was certainly not the world of Texas or the other conservative states where the antiabortion movement was charging forward. But Ginsburg did not believe the restrictions on abortion would continue. The pendulum, she said, had swung “about as conservative as it will get.”
THE MIDTERMS WERE the Democratic bloodbath that Obama feared. Democrats lost control of the Senate, lost seats in the House, and lost closely contested races for governor. No president, in more than fifty years, suffered as big a defeat to his party’s political standing in the Senate.
Davis, the woman perhaps more associated with the cause of abortion rights than any Democrat in the country, ended her campaign with the worst showing by a Democratic gubernatorial candidate in the state since 1998, when George W. Bush was on the ballot. It was clear that Davis hadn’t been running in Ann Richards’s Texas. Attorney General Greg Abbott, her opponent, didn’t make Clayton Williams’s mistakes; in fact, it was Davis who faced personal attacks over her past and was branded “Abortion Barbie” by conservatives. And none of her tough Texas gal attitude was enough to overcome the state’s sharp shift to the right or Abbott’s barrage of negative ads. Democrats explained away her loss as the result of a bad candidate with a muddled campaign strategy and disorganized operation. Davis started as Joan of Arc, charging into the Senate chamber in her salmon-pink sneakers. In a sense, she ended that way too. Joan of Arc was eventually burned at the stake in 1431, accused of heresy for flouting female decency and disseminating beliefs contrary to the Catholic Church.
Another Democratic candidate, Senator Mark Udall—or “Mark Uterus,” as his opponents called him—focused so heavily on abortion that a local reporter joked that if the race were a movie, it would be set in a gynecologist’s office. Like Davis, Udall was defeated that fall, making him the first incumbent from Colorado to lose a Senate race in thirty-six years. The depth of those losses reinforced a lesson for many Democratic officials: abortion could go viral, but it didn’t win them elections.
The Democratic defeats provided some evidence that Marjorie Dannenfelser and Kellyanne Conway’s training had worked. Their candidates avoided Todd Akin’s high-profile missteps on abortion and when the issue did come up, they successfully moved the conversation onto politically safer ground. After the Hobby Lobby decision, Democrats attacked Republican candidates as against access to contraception. In response, Republicans rolled out plans to make birth control available over the counter. Of course, without the insurance coverage guaranteed in the health care law, which Republicans wanted to repeal, the pills would be prohibitively expensive for many women. Still, it was a strategy, Conway boasted in September, that would “neutralize and defang” the liberal attacks. Democrats, she said, “think that they’ve got a monopoly on talking to women from the waist down.”
The Susan B. Anthony List won its three test case Senate races in Arkansas, Louisiana, and North Carolina, flipping all three seats from Democratic control. In total, SBA sent out 750 canvassers, knocked on 520,050 doors, and made 536,742 phone calls, according to an internal document. They spent nearly $3.5 million on campaigns, just about half of Planned Parenthood’s $6 million that cycle.
Those Republicans could have certainly won without Dannenfelser’s help. Many of the key races happened in conservative states, giving Republicans an advantage from the start. History, too, was on their side. The party in the White House had lost seats in nearly every midterm over the past eight decades. Republicans turned the race into a referendum on the economic stewardship of Obama, whose approval rating hit the lowest level of his presidency two weeks before Election Day. Exit polls showed voters far more worried about the economy and health care than abortion, which barely ranked as a concern.
But for Dannenfelser, the Senate victories were proof that her plan had worked. She had changed the tenor of the conversation around abortion for her party, laying a path that avoided the pitfalls of the 2012 race. The new strategy helped her cause fight its way back into the heart of the Republican Party. Its candidates would enter office as antiabortion champions. After twenty years, SBA could play in the big leagues.
And through it all, just below the radar, their allies in the states were taking a more aggressive approach toward Roe with a deluge of laws. Cases over admitting privileges continued in Alabama and Oklahoma. In North Dakota, the state’s sole clinic stopped providing medication abortions to avoid further lawsuits. And in Texas, the lawsuit brought by Richards, Northup, and their allies was slowly winding its way to the Supreme Court.
Dannenfelser and the antiabortion movement had even grander ambitions for the next president. Now that they had proven they could win, they could aim even bigger, at a presidential election. The race to replace Obama was just getting started. But first, they needed to go after a different, but no less symbolic, target: Planned Parenthood.