It started almost by accident, over cocktails. Exactly the kind of accident that Leonard Leo intended to happen at the Federalist Society’s annual conference.
Just nine days after Donald Trump won the 2016 election, the event was part victory party and part job fair for the incoming administration. Leo arrived after spending the day at Trump Tower in New York, talking about turning the list into legal reality with the president-elect and some of his top aides. Trump was very clear that he had not changed his mind—if someone was not on the list, they were not being considered. Inside the Mayflower Hotel, the list came to life. At least nine judges of Trump’s twenty-one possible Supreme Court nominees were slated to speak, and most of the other hopefuls attended at various points.
The halls were abuzz with all the possibilities in a future that had changed overnight. So, the young solicitor general of Wisconsin, Misha Tseytlin, was surprised when he overheard someone say that Roe would never be overturned. Tseytlin had clerked for Justice Anthony Kennedy and had long opposed abortion for moral reasons, though he was not particularly religious. His family had come to the United States when he was a child as Jewish refugees from the former Soviet Union, where communism had long suppressed religious practice.
To Tseytlin, the sentiment that Roe was infallible was frustrating and defeatist. But what neither he nor Americans on either side of the abortion debate could have imagined was the role that thought would have in pushing the court in a new direction.
There was no reason to think overturning Roe was impossible, especially not now, Tseytlin believed. Republicans had the White House, an open Supreme Court seat, and legislatures passing innovative laws in states across the country. If there really was no right to abortion in the Constitution, this was the time to prove it.
It wasn’t lost on Tseytlin that Planned Parenthood and its allies had challenged the Texas law, but not the twenty-week limit included in the law. By 2016, nearly a third of states had twenty-week bans. Most had not been challenged by abortion clinics, leaving them in effect in places like South Carolina, West Virginia, and his own state of Wisconsin. Across the country, a twenty-week ban was now normalized, even though it was roughly three weeks shy of the viability standard set in Roe, which with advancements in prenatal care had shifted earlier than the original twenty-eight weeks.
Some states, led by activists who had grown tired of the national groups’ incremental strategy, had tried to shrink the time frame of when abortion was allowed, moving to twelve weeks in Arkansas or six weeks in North Dakota. But the court struck those down. So if twenty weeks stood, but twelve and six weeks did not, Tseytlin wondered, was there a magic cutoff in those middle weeks?
What would happen if a state tried to pass a limit at, say, fifteen weeks? An ever-so-slightly earlier restriction could force the court to examine the viability rule and shake the very foundations of Roe. Could they push the number of weeks back just to the point where their opponents would challenge it?
Kennedy, his old boss, had ruled in favor of abortion rights in the landmark cases of Casey and Whole Woman’s Health. But he had also criticized abortion later in pregnancy in Gonzales v. Carhart, where he wrote the majority opinion upholding a ban on so-called partial birth abortion. Tseytlin had a hard time believing that Kennedy, or John Roberts, would strike down a ban that was just a few weeks earlier than twenty. Many restrictions in Europe were around twelve or fifteen weeks. It wasn’t a totally equivalent comparison, given that national health insurance programs and more robust social safety nets made it easier for European women to detect their pregnancies faster and access an abortion more quickly if they wanted one. But those countries did present an earlier standard in developed nations. It was a piece of data they could use.
He had other ideas, too, including passing more laws that would prohibit abortion based on things like selection for race, sex, or disability. But no matter what, the priority needed to be on undoing the viability rule, he believed. Striking down that part of Roe would functionally undo the decision, even if the justices never wrote the words outright.
Tseytlin mused about all of this to a new acquaintance connected with the Alliance Defending Freedom, the Christian law firm that worked with David Daleiden during his video sting. Even during the political exile of the Obama administration, ADF had racked up some big victories, winning six cases at the Supreme Court since 2011. Leo, a man who spent his life cultivating legal power for the right, would call the firm “formidable,” describing it as “a real major force in the conservative legal world.”
And now ADF was looking to do something even bigger. The group saw a new opportunity to advance a body of law to attack abortion rights. It was an opening that its lawyers believed might not be available for more than a few years, and they were determined to take advantage of it.
Already, ADF had been developing a wide-scale approach to change laws around sexuality—first, writing model legislation to push back on expanding gay rights, then getting states to pass the bills, and then providing those states with legal defense in court when they were sued. It was a one-two-three punch that took full advantage of the Democrats’ political weakness in the states, with those more than 1,030 seats lost during the Obama administration. Since late 2014, ADF had been using that strategy to advance so-called bathroom bills, laws that required people to use the public restrooms of the sex they were assigned at birth. There was a state where those efforts had been especially effective: Mississippi. With its strong opposition to abortion, Mississippi could be fertile ground for ADF to run a similar play on Roe.
THE LEGAL IDEA was in motion. And the symbolic effect was too.
Penny Nance, the president of Concerned Women for America, looked out from backstage at the crowd gathered in the cold on the National Mall, as it had every year for the March for Life. For forty-four years, her movement had gathered on or around January 22 to protest the Supreme Court’s ruling in Roe on that date.
Behind her was the Capitol. Ahead, the Washington Monument. And beside her, Marjorie Dannenfelser and other women of the small antiabortion sisterhood that got started that pivotal year of 1992, nearly a quarter century earlier.
Participants from Catholic churches and schools and antiabortion groups across the country broke into chants as they prepared to march toward the Capitol and the Supreme Court: “Hey, hey, ho, ho, Roe v. Wade has got to go!” They waved signs, flags, and banners that proclaimed the reasons they had come: “I am the pro-life generation.” “We don’t need Planned Parenthood!” “Babies can feel joy in the womb.”
A week earlier, a far larger crowd descended on this same stretch—the Women’s March, they called themselves—to protest Trump’s election. Four million women had poured into the streets of Washington and around the country, a second suffrage protesting the new administration. They wore hot-pink “pussy” hats and waved signs with opposite messages from the ones that arrived on this day: MY BODY MY RIGHTS! THE FUTURE IS FEMALE! Some carried posters with quotes from Clinton’s famous speeches. WOMEN’S RIGHTS ARE HUMAN RIGHTS, read one.
“We will not go back!” Cecile Richards shouted to the crowd, taking the stage in Washington in her hot-pink blazer. “My pledge today is, our doors stay open.”
At a private party that night, Richards rocked out with the National, the band that had provided the unofficial soundtrack of Obama’s campaigns, at a celebrity-studded celebration organized by Planned Parenthood long before Election Night curdled into a crushing defeat. “It ain’t me, it ain’t me, I ain’t no fortunate son!” Richards sang from the stage, belting the Vietnam War protest anthem along with Planned Parenthood activists, donors, and supporters.
But the March for Life was not about celebrity or size. It did not matter if the Women’s March had cooler music or got more attention. What mattered was that the antiabortion movement now had power. Not the power of broad public support. Nor the power of cultural cachet. But pure political power. They rose as a tightly connected group of unelected political actors, driven by undying belief, determination, and cunning. They were a minority that turned weakness into strength at the right places at the right time. What mattered was their network, the strong and weak ties and strategic positioning that could create the conditions for radical change.
It was difficult for many in the mainstream to see their force in the moment. Their view could be a minority view and still conquer the majority, through a combination of strategy, persistence, and pure luck. Or, what many of the people there would call Providence—the belief that God was acting in their favor and for their protection. They knew how to maneuver in Washington when Trump did not, giving them a strategic advantage even over him.
Standing in the cold, Nance watched as several black SUVs pulled up backstage. Mike Pence, now vice president, stepped out of the motorcade with Karen and their daughter Charlotte. For years, such a moment had been unimaginable. Never before had a president or vice president come to address the march in person.
When Pence told the story of his invitation to the march, and he retold it often, he recounted standing next to Trump in the Oval Office. The new president said he had been invited but could not attend, so Pence volunteered to go in his place. What Pence did not say was that he had been invited first, months earlier.
Tom McClusky, the president of March for Life Action, had called Pence as soon as he heard that the Indiana governor was Trump’s pick. No other elected official had likely ever spoken as often as Pence from the stage at the march, he thought. McClusky asked Pence to make a promise: Would he speak to the March for Life in January, win or lose? And when Pence won the vice presidency on Election Night, McClusky called his team to remind them. Trump was simply their Trojan horse, a vehicle to gain access to the White House.
One by one, officials of the newly minted Trump administration emerged from the black cars, each a longtime player in the antiabortion movement. Most people in America did not know them, but they had all known each other for years. There was Kellyanne Conway, now a White House adviser after becoming the first woman to run and win a presidential campaign, and plenty of staff from Pence’s new office. They greeted the activists backstage as old friends, because they were. Pence locked eyes with person after person, close to tears.
Karen introduced her husband. Amid the excitement and blustering wind, Nance could not quite hear what he said. As soon as she got home, she put in earbuds.
More than four decades earlier, on another January morning in 1973, the Supreme Court had turned away from the unalienable right of life, Pence told the crowd. But three generations later, all that was over. “Life is winning again in America,” he said. “We will not grow weary. We will not rest until we restore a culture of life in America for ourselves and our posterity.” The crowd exploded in cheers.
Standing in her kitchen, Nance started to sob. She turned to her husband. “We won,” she said. “We are going to change history.”
Four days later, Nance and Dannenfelser headed to the White House, down the hall to the East Room, to witness Trump nominate Neil Gorsuch to be the newest member of the US Supreme Court. It felt to Dannenfelser like the entire antiabortion movement had walked in after eight years of being shut out. Pence and Karen sat in the front row, in front of Mitch McConnell. Leo was also there in the East Room, sitting in an uncomfortable chair, and he marveled. The newest member of the Supreme Court would be a judge who ruled in favor of the Burwell v. Hobby Lobby decision while on the Tenth Circuit. He had now shepherded three nominations to the Supreme Court: John Roberts, Samuel Alito, and Neil Gorsuch, a third of the bench.
“Many are still trying to sort out all the lessons of 2016,” Leo said a few months later. “But maybe one lesson is this: sometimes, in a good cause, your breaks take you by surprise as much as your setbacks.”
No one knew how the next four years, or more, would go. For more than forty years, the antiabortion movement was David, fighting Goliath. But the country had shifted, and they were giants.