Monday, August 10, 2015

Representing the Unborn

James Bopp, June 2011 (Credit: Gage Skidmore)
If you are among the many who do not love the Supreme Court’s campaign-finance decision in Citizens United v. FEC, you might have heard of James Bopp, Jr. Before successfully arguing Citizens United, Bopp made himself one of the most prominent attorneys in the pro-life movement. Opposition to abortion ran in his family. A devout Catholic and the son of a pro-life physician, Bopp naturally gravitated to the movement. Immediately out of law school, he took jobs at major antiabortion organizations and quickly rose through the ranks. By 1980, he had established himself as one of the pro-life movement’s most savvy strategists.

After Roe tells the story of how lawyers like Bopp transformed the movement they represented. In particular, over the course of the 1970s, attorneys began to question the wisdom of prioritizing a constitutional amendment. Bopp and his colleagues saw themselves as realists, and in the short term, they believed that the antiabortion movement needed victories to survive.

These attorneys crafted an incremental attack on Roe that served several purposes. First, by convincing the Court to uphold regulations that were theoretically compatible with Roe, incrementalists limited abortion access and reduce the number of procedures performed across the country. Second, an incremental attack energized demoralized constituents and convinced politicians that the pro-life movement was a force to be reckoned with. Finally, incrementalists set the stage for the eventual overruling of Roe. Over time, as the Court narrowed abortion rights, incrementalists believed that it would be far easier to convince the justices to get rid of the 1973 decision altogether.
The incrementalists’ story raises interesting questions about what it meant for lawyers to represent unborn children. How did lawyers like Bopp define their role in the larger movement? Did they believe that their professional status or expertise made them more qualified to create a strategy for the larger movement? How did antiabortion lawyers’ understanding of themselves and their professional role change in the following decades?
It is striking how much lawyers’ influence in the antiabortion movement grew over time. When pro-life groups first formed across the country, they often rejected traditional hierarchies of gender and class, placing homemakers in positions of power. Influence often came with past success. Antiabortion activists who had defeated efforts to repeal or reform abortion bans in the 1960s and early 1970s gained credibility and power. These advocates did not always or even often belong to the movement’s elite wing.  
By the 1980s, however, the movement had once again invested in the courts, and lawyers held positions of power across leading organizations. This shift—and how it affected pro-life lawyers’ identities—deserves further study. Legal historians often ask us to think about the ways in which attorneys sometimes limit the claims of the movements they represent. As the evolution of lawyers’ role in the antiabortion movement suggests, we have more to learn about whether this story often applies to movements that we identify with the Right.