The Making of Pro-Life Constitutionalism, 1965–85

While present studies offer a sophisticated understanding of some aspects of pro-life strategy, current scholarship generally presents it as one part of a broader conservative constitutional history centered on the rise of originalism. By decoupling pro-life and conservative constitutionalism, this paper offers an alternative perspective on the arc of conservative constitutional history between 1965 and 1985.

Viewed as a constitutional movement, early pro-life leaders viewed originalism with ambivalence. In the late 1960s and early 1970s, the movement defended a constitutional agenda based on the Declaration of Independence, human rights law, substantive due process precedents, biological evidence, and common-law opinions on fetal personhood. In spite of profound internal disagreements about contraception and the women’s movement, this constitutional reform program enjoyed remarkably consistent support from the movement’s grassroots membership.

When pro-life constitutionalism took its place as part of a larger conservative constitutional agenda, movement leaders acted as much for strategic as for substantive reasons. Linking the cause to originalism promised to cement the movement’s relationship with the Reagan White House and to strengthen activists’ relationship to newly influential religious conservatives.

As the story of pro-life constitutionalism reveals, the history of conservative constitutionalism has involved a good deal more than the ascendancy of popular and legal originalism. For abortion opponents, the triumph of originalism required complex and painful compromises, as activists achieved greater political and legal influence at the expense of popularizing the movement’s foundational commitments. In this history, the success of originalism appears contingent and unstable.  Far from being an ideologically coherent, the pro-life movement’s conservative constitutionalism emerged from a complex set of sacrifices and tradeoffs.