Politics

If It Weren’t for George W. Bush, We Might Still Have Roe

Two men in masks elbow bump on the inauguration platform.
George W. Bush greets Chief Justice John Roberts before the inauguration of Joe Biden on Jan. 20, 2021. Rob Carr/Getty Images

In the late 1990s, then–conservative hero Bill Kristol offered the Republican Party a warning: If the GOP couldn’t figure out how to “overturn Roe and move toward a post-abortion America, then in truth, there will be no conservative future.” Last Friday, the Supreme Court’s far-right majority heeded Kristol’s warning when it overturned the constitutional right to an abortion. Their conservative future has arrived.

The path to this moment has unfolded in plain sight. The justices who responded to Kristol’s pivotal call were appointed by Republican presidents and trained by the Federalist Society, the conservative legal movement’s most successful institution. They are hard-boiled conservative foot soldiers, not the compromise-seeking and incrementalist conservative justices of the past. When Justices Samuel Alito, Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett struck down Roe v. Wade and Planned Parenthood v. Casey last Friday—with only partial support from Chief Justice John Roberts—they achieved the goal of a decadeslong conservative project.

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Much of the credit for this, of course, will go to former President Donald Trump, whose 2016 campaign declared abortion and the Supreme Court to be on the ballot. With this proclamation, Trump won the white evangelical vote and the power to pick three hard-line originalists as Supreme Court justices. But the buildup to the end of Roe predates Trump. To get an even clearer picture as to how this moment was won, we need to zoom out to review the myriad actions of Trump’s Republican predecessor: George W. Bush.

The junior Bush’s presidency is mostly associated with the disasters of the war in Iraq and Hurricane Katrina. Yet these associations should not overshadow the fact that myriad disasters we’re dealing with today have roots in his term: the mass distribution of military-grade assault rifles, the crippling of the Postal Service, the empowerment of oil companies over the environment, and U.S. tensions with North Korea and Iran. With respect to abortion, Bush is also responsible for opening a path for the Republican Party to sideline its pro-choice flank—and to nominate judges who would further the anti-abortion cause in the courts.

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This path would not have been possible without SCOTUS’s brazen actions in 2000’s Bush v. Gore, through which the Rehnquist court all but ensured its own conservative future. It’s worth looking back at the timeline to fully recognize how the path to the end of Roe was paved.

By the late 1990s, Bush was banking on his record as a popular Texas governor to catapult him to become the GOP’s presidential nominee—with abortion bona fides to boot. In the summer of 1999, he signed Texas’ first post-Casey abortion restriction: a bill requiring physicians performing abortions for minors to send a notification to their parents, and to wait for 48 hours post-dispatch, before carrying out the procedure. During legislative negotiations, pressure from anti-abortion organizations forced in language toughening up the bill, including a provision to allow prosecution of physicians who violated this law. The bill’s passage was key to Bush’s appeal to conservative activists: After its enactment, the associate director of the National Right to Life Committee called the governor “a good pro-life candidate,” in response to accusations that Bush was “soft on abortion.”

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By the summer of 2000, as Bush cruised to the national candidacy, he built upon that anti-abortion momentum by placing then–Wisconsin Gov. Tommy Thompson, a rabid pro-lifer, in charge of the Republican National Convention’s platform committee. As the race against Al Gore tightened, Bush furthered such outreach for key evangelical votes, promising that as president he’d outlaw “late-term” abortions and approve a constitutional amendment banning abortion with exceptions for rape, incest, or risk to a pregnant person’s life. Gore recognized the stakes here: During the presidential debates, he stated that “Gov. Bush has declared to the anti-choice groups that he will appoint justices in the mold of Scalia and Clarence Thomas who are known for being the most vigorous opponents of a woman’s right to choose.”

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Then came Election Day, and the fight over whether to recount ballots to determine which candidate had actually won Florida’s electoral votes. John Roberts, formerly the solicitor general for George H.W. Bush, flew to Tallahassee to advise Florida Gov. Jeb Bush on “the role that the governor and the Florida Legislature might play in the recount battle,” according to the Los Angeles Times. Before meeting with Jeb, Roberts also helped formulate a strategy to bring the vote-recount dispute before SCOTUS in case the Florida Supreme Court granted the Gore campaign’s requests for an extension of the ballot-recount process, which it did. (Jeb Bush would personally thank Roberts for his “input” on Dec. 6, just a week before the Supreme Court intervened.)

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Even more tightly involved was Brett Kavanaugh, who’d been a member of Lawyers for Bush-Cheney and worked as a regional coordinator for Bush’s campaign. Kavanaugh, like Roberts, joined George W. Bush’s legal team, which was trying to halt the recount of Florida’s presidential ballots in large part by arguing that the Supreme Court should have the final say in state courts’ interpretations of state election laws. He also was a willing public face for the team, talking to CNN about its strategy. These lawyers were additionally assisted by a young law firm associate named Amy Coney Barrett, who worked behind the scenes to provide relevant legal research. On top of that, as the Wall Street Journal reported at the time, the wife of Supreme Court Justice Clarence Thomas, Virginia “Ginni” Thomas, had been recruiting potential candidates to work in a future Bush administration.

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We know what happened next. The Supreme Court stopped Florida’s ballot recounts, relying on a cooked-up judicial rationale that even the deciding justices said should not be invoked again. Gore conceded the election, wishing not to “trash the Supreme Court.” Multiple independent tabulations of Florida’s vote after the fact demonstrated that vote tallies would have shown a Gore victory had SCOTUS not stepped in. But it was Bush who was headed to Washington, determined to repay those who had assisted him.

Now president, Bush tapped Tommy Thompson to head the Department of Health and Human Services, over the objections of abortion supporters. Bush also chose Alberto Gonzales—who’d previously served in Texas’ government and judiciary with the blessings of Gov. Bush—as White House counsel. In his new national role, Gonzales picked Kavanaugh as associate counsel, a role he would later use to recommend conservative lawyers for Bush to consider for federal court appointments—including fellow Bush v. Gore lawyer John Roberts.

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In June 2003, Bush appointed Roberts to his first federal judgeship on the U.S. Court of Appeals for the D.C. Circuit. He also took on Kavanaugh as staff secretary, a role he served while his own nomination to the federal bench was being held up by skeptical Democrats. In November, Bush signed into law the Partial-Birth Abortion Ban Act—titled after a National Right to Life Committee coinage—which set out legal punishments for physicians who performed certain second- or third-trimester abortions.

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Going into his reelection campaign in 2004, Bush kept up a successful embrace of conservative social issues, targeting the 20 percent of voters Gallup had identified would hit the polls just for the chance to strike down abortion rights. The GOP platform re-endorsed a constitutional amendment against abortion, and a pro–abortion rights Republican told the New York Times that he and like-minded party members had “given up on trying to dissuade this year’s convention from its opposition to abortion.” Other pro–abortion rights women politicians in the GOP straight-up turned against Bush following the 2003 law. Both the president and his opponent, John Kerry, addressed the election’s stakes when it came to the Supreme Court, especially with public rumors about which justices were about to retire. (Sandra Day O’Connor, it had already been reported, had pushed off thoughts of retirement in 2000 out of concerns Gore could win the election.) Kerry’s campaign ran an ad intoning in part: “The Supreme Court is just one vote away from outlawing a woman’s right to choose. George Bush will appoint anti-choice, anti-privacy justices.”

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Of course, Kerry lost, and his warning proved to be prescient.

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By the fall of 2005, O’Connor had announced her retirement, and Chief Justice William Rehnquist died. Bush picked two Bush v. Gore alumni to replace them: Harriet Miers, his personal attorney throughout that litigation, and Roberts, for chief justice. The former, however, was pressured into withdrawing her nomination—in part because conservative activists didn’t think she was sufficiently opposed to abortion. Bush’s replacement pick of Samuel Alito, whom staff secretary Kavanaugh had recommended as a “solid justice,” was enough to mollify these activists. As a lawyer in Reagan’s Justice Department, Alito had written that the Republican government “should make clear that we disagree with Roe v. Wade.”

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In the summer of 2006, Bush finally elevated Kavanaugh to the D.C. Circuit Court of Appeals after his initial 2003 confirmation was held up. He also tapped Neil Gorsuch, previously a private-practice lawyer who’d started working at the Justice Department the previous year, for the U.S. Court of Appeals for the 10th Circuit—his first-ever federal judgeship.

In 2007, the legal challenges to Bush’s Partial-Birth Abortion Ban Act had catapulted the case all the way up to the Supreme Court, which now had two of his picks. Justice Alito proved the key swing vote in Gonzales v. Carhart, in which Alberto Gonzales—now Bush’s attorney general—had appealed a federal court’s nullification of the president’s abortion legislation. With the pro-choice O’Connor gone, and Alito in her place, the 5–4 vote in Gonzales swung the conservative direction, and the Partial-Birth Abortion Ban Act was upheld.

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George W. Bush was handed the presidency by a faction of the Supreme Court that wanted him to pick the next generation of justices, and he paid them back in kind—not only through his nominations of Alito and Roberts, but also by his recruitment of conservatives like Brett Kavanaugh and Gorsuch to federal judgeships, setting them up to advance down the line. Instead of moderating, he followed the Republican Party’s extremist drift on abortion in order to snatch the evangelical base he needed to win his close presidential races.

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It’s important to note another effect Bush v. Gore had: on the state of Texas. Gov. Bush’s “parental notification” act wasn’t the only predictor from his term for the future of Texas abortion rights. In 1996, he appointed a state trial judge named Greg Abbott to the state Supreme Court, granting Abbott what was then his highest-profile judicial position. And in 2000, Bush v. Gore cleared the way for Texas Lt. Gov. Rick Perry to take the state’s top job. In 2002, Perry then won a full term as governor, with Greg Abbott elected as his attorney general. The two worked to enact and enforce seven additional pieces of abortion-restriction legislation within the state, and Abbott signed seven more anti-abortion bills after he became governor in 2015—including, of course, S.B. 8, which SCOTUS tacitly approved.

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When Trump came to power in 2016, he took cues from Bush’s 2004 playbook, successfully positioning abortion and the Supreme Court as key campaign issues. Once elected president (after having lost the popular vote, like Bush did in 2000), Trump had his judicial work cut out for him, appointing: in 2017, Judge Neil Gorsuch for the Supreme Court and Amy Coney Barrett for her first federal judgeship; in 2018, Judge Brett Kavanaugh for the Supreme Court; in 2020, Judge Amy Coney Barrett for the Supreme Court. And when Kavanaugh’s nomination became imperiled due to Christine Blasey Ford’s assault allegations, Bush personally spoke with multiple on-the-fence senators, including Susan Collins, to convince them to confirm Kavanaugh.

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To be sure, George W. Bush is not solely to blame for the demise of Roe; he’s just one of many parts of that long process. His path to the presidency and his judicial appointments make clear conservatives had been lining up the anti-abortion dominoes for years before the Supreme Court knocked them down last Friday. Had Bush taken a loss in 2000, had SCOTUS not come to save him, there’s a much higher chance we would not be here right now. History is not inevitable; it’s the product of choices. And in 2000, SCOTUS and the Republican Party made a key choice that ultimately rewarded them handsomely.

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