Almost a year to the day after the Supreme Court ended the legal right to abortion, one of the main architects of the strategy behind the decision stepped to a podium in a Pittsburgh airport hotel. James Bopp had worked to defeat of Roe v. Wade since 1978, when he became general counsel for the nation’s largest anti-abortion group, the National Right to Life Committee. Nearly half a century later, he still serves in this role. As he worked to win over politicians to the cause, Bopp had recognized the significance of weakening campaign finance rules, which led to another major conservative Supreme Court victory, Citizens United.
Now, Bopp, dressed in a salmon-pink polo shirt and blazer, was about to admit that his life’s work wasn’t panning out exactly the way he had planned.
The Supreme Court’s decision to reverse Roe in Dobbs v. Jackson Women’s Health Organization had been a “a monumental event that required enormous effort,” Bopp said during his panel at this year’s annual National Right to Life Convention. Still, the results had been disappointing. “We have 20-some states who have substantive, significant restrictions on abortion,” Bopp said. “We would have expected, like, 300,000 fewer abortions.”
But, thanks in large part to the herculean efforts of abortion funds and providers, the bans are not having the effect Bopp expected.
In fact, a survey by the Society for Family Planning found that in the nine months after Dobbs, the number of abortions provided by clinicians had dropped by just 25,000 compared to the nine months before. Bopp paused, letting the audience absorb the number in stunned silence. Somewhere, in the beige-paneled room, someone let out a whistle.
A year after the Dobbs decision, the anti-abortion movement is contending with two unexpected results. The first was neatly expressed by the banner headline in a newspaper that abortion rights groups We Testify and INeedanA.com printed to mark the Dobbs anniversary: “We are Still Having Abortions All Across the Country.” Not only did the Society for Family Planning’s survey of reported abortions find less of a decrease than many expected; it doesn’t account for the untold number of people who are accessing abortion medications through overseas or peer-to-peer suppliers, even in states where it is banned. Meanwhile, other states and localities are taking historic steps to ease abortion access. On the day Bopp spoke, New York’s governor signed a law to protect abortion providers in the state who are openly planning to provide telemedicine abortions in states where it is banned.
The second debacle is that these bans have come at a profound political cost for the anti-abortion movement. Since Dobbs, abortion rights supporters have won all six abortion-related ballot measures, stifled the “red wave” in the 2022 midterms, and cinched a key Wisconsin Supreme Court seat. In the convention’s host state, Pennsylvania, outrage over Dobbs helped Democrats flip the state House, elect a Democratic governor, and send Democrat John Fetterman to the US Senate. Sitting in his booth in the convention hallway, Christopher Pushaw, executive director of Pennsylvania Pro-Life Federation, told me he wasn’t sure Dobbs had been worth the price.
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“I don’t think as a country we were ready for this,” Pushaw said. “To me it’s an imperfect, somewhat of a Pyrrhic victory.”
The victory was more complete for activists in the 14 states like Louisiana, Oklahoma, and South Dakota that have banned abortion since Dobbs.
But Bopp wanted activists in most of those states to reopen their laws and modify them to make them more popular—and more enforceable. For one thing, Bopp and the rest of NRLC were coming to terms with the fact that very few people support their position that rape and incest victims should be forced to carry pregnancies to term. (All but four of the current total abortion bans make no exception for rape or incest.)
“Even after 50 years of education, just 10 percent of the public believes abortion should only be allowed in order to save the life of the mother,” Karen Cross, political director for NRLC said in a panel earlier that day. “We have not moved the needle on rape and incest in 50 years.”
It’s not that Bopp wanted rape and incest victims to be able to have abortions—not at all. But he had a larger agenda. He wanted states to implement radical steps to make enforcement of their bans more effective—and he thought rape and incest exceptions would sweeten the deal for reluctant state lawmakers. To make the bans work, Bopp told attendees, they would have to revoke enforcement authority from local prosecutors, many of whom have declined to enforce abortion bans, and give it to state attorneys general. They would need to allow citizens to enforce abortion bans with civil lawsuits, apply RICO laws used to take down the mob to abortion providers, and weaponize anti-trafficking laws to make it harder to leave the state—as Idaho has done, on Bopp’s advice.
These measures might face “enormous opposition,” Bopp acknowledged. So rape and incest exceptions would form the sugar coating on the poison pill. Of course, these exceptions are meaningless in states where abortion clinics have closed. But to NRLC, that doesn’t matter. They’re part of a new marketing strategy that is aimed at winning over the 61 percent of Americans who think Dobbs was a “bad thing.” The strategy includes ditching what Bopp called “the big ban word.” In polls, the word “ban” seemed to make policies that ban abortion at various stages of pregnancy less popular.
“We want to talk about ‘protections’ and not ‘bans,’” Cross advised.
Also out of favor is the term “crisis pregnancy center” to describe the nation’s thousands of anti-abortion organizations that often masquerade as clinics to deter people from seeking abortions. One attendee pointed out that if you Google the NRLC-preferred term “pregnancy resource center” the search results are less likely to mention these deceptive practices than if you use the term “crisis pregnancy center.”
Less discussed at the panels I attended was a more serious PR problem—the near-constant stream of horrific stories about women suffering miscarriages who are being forced to the brink of death because abortion bans have made doctors afraid to treat them until they become severely ill. No one seemed to have a workable strategy to address the risk that abortion bans might be killing women. “I think over time, that’s going to be worked out through the judicial process, and through the legislative process,” NRLC’s executive director Scott Fischbach told me when I asked. “But our position has always been one of compassion and understanding.”
Fischbach, who is married to Minnesota Representative Michelle Fischbach, became executive director of NRLC in January after more than 20 years as head of the Minnesota affiliate. In the wake of Dobbs, his home state had just elected a Democratic trifecta for the first time in eight years. Those lawmakers would go on to repeal almost all the state’s abortion restrictions, erasing much of Fischbach’s work. In his new role, Fischbach let go of eight national staff members in a restructuring he said would allow the group to focus on state work, including fighting pro-abortion ballot initiatives. That will be a challenge with a record high 69 percent of Americans saying abortion should be legal in the first three months of pregnancy.
But if other factions of the anti-abortion movement prevail, public opinion won’t matter.
On Saturday, the first anniversary of the Dobbs decision, Kristan Hawkins, president of Students for Life of America, stood in the hot sun, preparing to take to the steps of the Lincoln Memorial in Washington, D.C. Hawkins seemed optimistic. The day before, she had had an encouraging private meeting with Florida Governor Ron DeSantis, a GOP presidential contender. She said her group would be calling for Republican presidential candidates to commit to signing a six-week abortion ban like the one DeSantis signed in Florida. Today, another Republican contender, former vice president Mike Pence, would take the stage alongside a coalition of anti-abortion leaders from influential groups including Susan B. Anthony List. The rally’s message represented a more direct path to the end goal than NRLC’s—granting 14th Amendment protections to embryos.
“Let me speak with one clear message: We demand equal protection for pre-born children,” Lila Rose, president and founder of Live Action, declared to a chorus of cheers. “California, New York, states across our country are violating our 14th Amendment by preying upon our most vulnerable pre-born brothers and sisters.”
For decades, anti-abortion leaders have coopted the language of civil rights to claim that the 14th Amendment, enacted in 1868 to grant legal personhood to the formerly enslaved, should apply to fertilized eggs. The appeal of this strategy, beyond the fact that it could take out all abortion and possibly even birth control, is that it wouldn’t require approval from Congress or public support.
“If the courts had the courage to recognize the unborn as a person under the 14th Amendment, that would prevail,” former Arizona Representative Trent Franks told me, standing in the crowd at the rally. Franks had championed a national 20-week abortion ban before he was forced to resign from Congress in 2017 for pressuring his aides to bear his children. He stood chatting with former Arkansas state senator Jason Rapert, who had introduced the first-ever six-week abortion in 2013. Back then, the idea of six-week ban was considered fringe, even within the anti-abortion movement. With such bans now signed into law in several states, including Georgia, Rapert was feeling vindicated. He has gone on to form the National Association of Christian Lawmakers, an alliance of state legislators that he said will push for fetal personhood under the 14th Amendment at the state level. Standing nearby was anti-abortion strategist Josh Craddock, who has called for the next Republican president to instruct federal agencies to behave as if the 14th Amendment already applies to embryos. It was all starting to feel like the kind of multifront strategy that could eventually persuade the Supreme Court to take up the issue of fetal personhood, although experts think that’s unlikely to happen soon.
Still, Mary Ziegler, a law professor at the University of California who has studied the history of the anti-abortion movement, noted that they have proven themselves at winning the long game. “If [the] people in the [anti-abortion] movement [are] saying it took us 50 years to get rid of Roe and we’re willing spend the next 50 on personhood, then you can never say never,” Ziegler, who watched the livestream of the rally from home, told me.
There was a sense that the fringe of the anti-abortion movement has now taken center stage, even though their ideas are deeply unpopular. As tourists milled around taking pictures of the memorial, and Pence pumped supporters’ hands backstage, a passerby called out: “You’re killing women! Congratulations!”
At the edge of the crowd stood a man who is part of the anti-abortion movement’s newly emboldened fringe. His billboard-sized banner read: you can’t end abortion if moms can still get away with murder. Most anti-abortion groups are “not really into the woman going to jail,” Philip Miedzinski, the man holding the banner, acknowledged. But there are moments when Miedzinski gets the sense that people agree with him more than they let on. Sometimes, when no one is looking, they flash him a thumbs-up.
