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Analysis

A Vocal—and Wealthy—Minority Is Controlling Abortion Access

Candidates and elected officials pay too much attention to the interests of megadonors and special interests, muting the voices of ordinary people.

View the entire Abortion Rights Are Essential to Democracy series

In allow­ing Texas law S.B. 8 to take effect in early Septem­ber and almost completely ban abor­tion in the state, five Supreme Court justices abruptly curtailed the consti­tu­tional rights of Texans—and rendered Roe v. Wade mean­ing­less for over 11 percent of the U.S. popu­la­tion. Other states are sure to follow. 

The Court effect­ively aban­doned a half-century of preced­ent without admit­ting it or provid­ing any reas­ons, despite the fact that the great major­ity of Amer­ic­ans oppose the elim­in­a­tion of Roe. How did we get here? Conser­vat­ives have relent­lessly focused on reshap­ing the Court for decades. To a large extent, this stun­ning outcome is a story of demo­cratic fail­ures and the power of big money in Amer­ican polit­ics. 

Although the federal judi­ciary is not elec­ted, elec­tions impact the Court and its role in our demo­cracy. The pres­id­ent nomin­ates and the Senate confirms justices—and voters exer­cise control over who gets elec­ted to those offices. But the way our elect­oral insti­tu­tions are struc­tured allows for minor­ity rule, from the Elect­oral College (which allows a candid­ate to win the pres­id­ency without a major­ity of votes), to the Senate (a legis­lat­ive body where Amer­ic­ans do not enjoy equal or true repres­ent­a­tion, since senat­ors repres­ent­ing less popu­lous states can control the cham­ber and drive outcomes). 

The current makeup of the Supreme Court is a direct result of this dysfunc­tion: Four of the nine justices who joined the initial decision to allow S.B. 8 to take effect were appoin­ted by a pres­id­ent who lost the popu­lar vote. And all five of the justices who green­lighted S.B. 8 were confirmed by slim major­it­ies of senat­ors who repres­en­ted millions fewer Amer­ic­ans than the senat­ors who opposed their nomin­a­tions. 

Even worse, elec­tions for those Senate seats are subject to the expand­ing power of a hand­ful of mega-rich indi­vidu­als. Our broken campaign finance system gives an unrep­res­ent­at­ive set of big donors dispro­por­tion­ate influ­ence. 

The 2016 and 2018 elec­tions, in which Repub­lic­ans retained Senate major­it­ies that allowed them to confirm Trump’s three Supreme Court nomin­ees, cost record-break­ing amounts. Megadonors gave to candid­ates through super PACs and dark money groups—ve­hicles that allow unlim­ited amounts of some­times untrace­able money—as they have been able to do for more than a decade since the Citizens United ruling opened the floodgates for polit­ical spend­ing. 

Take for example, the Senate Lead­er­ship Fund—a super PAC affil­i­ated with Senate Minor­ity Leader Mitch McCon­nell of Kentuck­y—which spent $184 million boost­ing conser­vat­ive candid­ates in 2016 and 2018. It raises almost all of its money from those who donate at least $100,000 and also takes tens of millions from One Nation, a group that keeps its donors secret.

Not surpris­ingly, much of the money on the right comes from sources opposed to abor­tion. Anti-abor­tion busi­ness­man Richard Uihlein was one of the top 10 elec­tion donors in the coun­try in 2016 and 2018, giving $64 million over those cycles. (To be sure, there are pro-choice megadonors, too, as well as national groups that are heav­ily involved in elec­tion spend­ing.)

And Supreme Court nomin­a­tions them­selves attract big spend­ing, with millions in dark money inten­ded to influ­ence senat­ors’ confirm­a­tion votes. In fact, some of the same interests spend­ing on elec­tions also pay for ads boost­ing nomin­ees, often target­ing the senat­ors most likely to face a compet­it­ive race in the near future.

Beyond influ­en­cing federal elec­tions and the Supreme Court nomin­a­tion process, big money played an outsized role in the passage of S.B. 8 itself. A hand­ful of oil and gas tycoons exer­ted massive influ­ence over Texas polit­ics by funnel­ing millions into state­house races. Their money has flowed through several super PACs, includ­ing the Texas Right to Life PAC, which has funded lobby­ing and suppor­ted numer­ous anti-abor­tion politi­cians. Ninety-five percent of the PAC’s money came from just four famil­ies

In 2018, the PAC began prop­ping up chal­lengers to its own former endorsees, call­ing those that they had previ­ously awar­ded perfect “pro-life scores” too leni­ent on abor­tion. 

This strategy of push­ing—and paying for—­more and more extreme candid­ates seems to be paying off. Many of the candid­ates that Texas Right to Life PAC suppor­ted in 2020 went on to spon­sor or cospon­sor S.B. 8. Some were also behind another bill attack­ing Texans’ basic rights: S.B.1, the danger­ously restrict­ive voting law that erects higher barri­ers to ballot access and is espe­cially harm­ful to Texans of color. 

Because of the campaign finance arms race, candid­ates and elec­ted offi­cials pay too much atten­tion to the interests of megadonors and special interests, muting the voices of ordin­ary people. Even though a large major­ity of Amer­ic­ans favor keep­ing abor­tion legal, a vocal—and wealthy—minor­ity is able to exert influ­ence on policy and judi­cial appoint­ments through campaign spend­ing, lead­ing to extreme laws like S.B. 8 and an out-of-touch Supreme Court uphold­ing them.

It is urgent that we start to unwind the broken elec­tion and campaign finance systems that got us to this crisis point. To protect public approval and legit­im­acy of the Court, Congress should consider changes to the appoint­ment process, and the Elect­oral College should be replaced with a national popu­lar vote for pres­id­ent. Campaign finance reforms to increase the power of regu­lar Amer­ic­ans in pres­id­en­tial and senate elec­tions are also key, includ­ing public finan­cing and robust disclos­ure—both included in the Free­dom to Vote Act

These reforms aren’t magic fixes, and they certainly won’t undo the damage already caused by S.B. 8. But they’re an essen­tial part of the way forward. We need to ensure the pro-choice major­ity of Amer­ica has a govern­ment that is reflect­ive, respons­ive and truly repres­ent­at­ive.