In the summer of 2017, a few weeks before Jane Doe crossed the southern border into the United States, the Alliance Defending Freedom convened hundreds of top conservative leaders to the luxurious Ritz-Carlton, Laguna Niguel, in California for a private four-day summit. The stated goal was to discuss religious freedom. But the deeper ambition was to develop their agenda for the new Trump era. Their guest list included ten state attorneys general and solicitors general, a collection of the most powerful Christian lawyers in the country, and Jeff Sessions, President Trump’s new attorney general and a key ally who had described Roe as “one of the worst, colossally erroneous Supreme Court decisions of all time.” Sessions initially kept his remarks, and the promise he made to the group, a secret from the public.
“Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed,” Sessions said in a closed-door evening address.
When reporters discovered the details of Sessions’s speech, public outcry centered on the fact that America’s top law enforcement official addressed a group known most prominently at the time for its opposition to gay rights. But ADF’s work was growing, largely under the radar as it sought to become a mainstream Christian rival to the ACLU. No one on the outside knew just how extensive ADF’s ambitions were, or that ADF was laying groundwork to challenge Roe.
ADF had invited another delegation that sought to keep its participation off the official record: a team from the Wisconsin attorney general’s office, including Misha Tseytlin, the solicitor general who just eight months earlier was brainstorming about abortion law at the Federalist Society cocktail hour. When a reporter from the USA Today Network-Wisconsin later unearthed that delegation’s participation, a state spokesperson simply said that Tseytlin had co-led a session at the conference. No one disclosed what it was about. Tseytlin’s remarks that day remained unknown to the public.
But Tseytlin, a man most Americans had never heard of, was there to present a very specific strategy: a legal path to end Roe.
Lawyers had a moral duty to act, Tseytlin told the group. He proposed the idea for an abortion ban that set a limit just a few weeks earlier than twenty weeks. States like Texas, his own state of Wisconsin, and fifteen others had enacted bans at about twenty weeks, which ended abortion rights earlier than the viability line required by Roe and Casey. And yet Roe still stood as the law of the land. They needed to undercut the decision more openly, he argued, with bans that started earlier.
His session was well-attended by lawyers in the antiabortion movement and some staff from the offices of state attorneys general, but not packed. While abortion remained a focus for the true believers, issues like religious liberty and speech captured far more attention at the gathering.
Even to those in the room with Tseytlin, it was far from clear that the plan that was hatching would, just five years later, lead to the most consequential Supreme Court ruling on abortion rights in half a century. The early years of the Trump administration had been good for ADF. The group now had some three thousand allied lawyers in its network, brought in more revenue than the ACLU, and was growing rapidly. Its march on the Supreme Court continued, and ADF lawyers were about to defend the baker in Colorado who refused to make a cake for a same-sex couple’s wedding. Part of ADF’s power was built from events like this one, bringing together state attorneys general and solicitors general, along with allied attorneys from across the country to strategize on priorities. Some of those guests were reimbursed for travel expenses. For this summit, the group paid part of Tseytlin’s travel costs. The organization asked guests to maintain the secrecy of their discussions, as it did for most of its events, according to participants. ADF did not disclose its list of allies and encouraged lawyers involved with its efforts not to even acknowledge attending its events, according to attendees.
Like the Federalist Society, ADF aimed to connect lawyers and legal allies to further its goals. But ADF was also profoundly different. It was an explicitly conservative Christian legal advocacy project, designed to leverage lawyers, elected officials, and activists to achieve policy goals in line with their religious mission. ADF had a new president, Michael Farris, who had initially opposed Trump’s election—Trump’s views on abortion “appear to have been written on an Etch A Sketch,” he once said—but the group saw new opportunity and was now intensifying its efforts at cultural transformation.
Similar to Trump, ADF was building a public identity around the idea of Christians being under siege, especially as American values on sexuality, marriage, and family expanded in the wake of the Obergefell decision making same-sex marriage legal. ADF’s own religious commitments became stricter. The group added more specific belief requirements to its statement of faith, including that “rejecting one’s biological sex rejects the created image of God,” that “God intends sexual intimacy to only occur between a man and a woman joined in marriage,” and that life “must be respected and protected from conception to natural death.”
In Tseytlin’s closed-door session, the idea of moving up limits from twenty weeks faced resistance from some antiabortion activists. Even with Trump in office, the movement remained divided over the best legal path to end abortion rights. The national movement had been focused on abortion bans at twenty weeks, or twenty-two weeks, depending on how they counted the weeks of pregnancy, and groups like the Susan B. Anthony List thought the strongest argument would be to convince the public that a fetus could feel pain at that time. Some worried that an earlier limit would be too aggressive for the justices. If their test case got to the Supreme Court and lost, it could set their movement back years.
But another flank of the movement wanted to take advantage of this moment of power and move more aggressively to pass laws that flouted Roe’s viability requirement. They wanted to try all kinds of bans, from six-week cutoffs to laws banning abortion based on fetal selection for race, sex, or disability to see what kind of a proposal could, eventually, entice the Supreme Court to weigh in on the issue.
ADF believed the most effective strategy would be to find the magic number of weeks that would force the court to reconsider Roe. The limit had to be not so early as to be immediately struck down by lower courts but still below the viability line to undercut Roe. Arkansas had already passed a twelve-week law, and it was blocked by the courts, so that seemed too low. ADF lawyers decided to get a state to ban abortion at fifteen weeks. The spark of Tseytlin’s cocktail hour conversation became a flame.
Their goal would be to remove Roe’s viability line without directly asking the court to take the more drastic—and likely more politically inflammatory—step of directly overturning the decision. It could be a first step in a longer strategy to end legal abortion entirely.
For centuries, people have debated the question of when life begins, when a human life has civil rights, and when the responsibility for it begins and ends. ADF’s fifteen-week plan did not emerge from biological discussions about when an organism becomes an organism, or philosophical ones about the relationship between body and soul. Nor was the policy grounded in the medical realities of modern-day pregnancy for American women. The fifteen-week mark was before a fetus could live outside the womb and was several weeks before doctors generally conducted the first significant fetal anatomy scan. It was simply a test case, designed to push the legal limit, to put Roe in check, or if they were successful, checkmate.
ADF’s mission was to craft the legislation that would start the process of trying to reach the Supreme Court, and its leaders knew exactly whom to hire to write it. Denise Burke had worked at Americans United for Life for almost two decades, writing model legislation on various abortion restrictions and advising state legislators and state attorneys general on how to pass it. She was one of the movement’s top authors on antiabortion measures. The legislation would need to be airtight to survive the journey through conservative statehouses and the inevitable legal challenges in the lower courts in order to eventually arrive at the Supreme Court.
ADF lawyers identified states where they believed the bills had the best chance. They looked for favorable governors, attorneys general, and state legislatures. Three states stood out: Mississippi, Arkansas, and Utah. Each was in a different circuit court region. The thinking was that if the laws were debated in different circuit courts, and the courts issued conflicting rulings, the Supreme Court would be more likely to take up one of the cases and arbitrate among them. It was those kinds of conflicts—what lawyers called circuit splits—that often attracted the interest of the justices, who saw part of their mandate as ensuring that the law was applied consistently across the country.
“A circuit split would mean there had to be a resolution,” said Dannenfelser, who was on ADF’s board.
While ADF tried to reverse engineer its way to the Supreme Court, antiabortion activists on the state level were also trying to advance tighter abortion bans. ADF tracked them all. Every legislative session was another opportunity to move forward, and abortion opponents on the ground, like the ADF lawyers, were driven by a sense of spiritual mission. The most religiously devout states overlapped with the legislatures pushing for abortion restrictions. Mississippi topped the list, with 59 percent of adults identifying as “very religious,” according to Gallup.
Since 2004, there had been only one clinic in Mississippi where women could get an abortion—Jackson Women’s Health Organization, with its unmistakable bubble-gum-pink walls. The Pink House, as everyone called it, was just a seven-minute drive from the capitol building, where lawmakers tried to find ways to shut it down with bill after bill. And again and again, the Pink House and its lawyers at the Center for Reproductive Rights pushed back in the courts, arguing the laws violated the standards set in Roe and Casey. Through it all, the Pink House survived.
In the fall of 2017, a few months after Tseytlin went to the Ritz for the ADF summit, a conservative Christian lobbyist named Jameson Taylor started what he called his annual “intelligence gathering” on what antiabortion legislation he wanted to push next session and how the antiabortion forces could, once again, take another shot at the Pink House. He made the rounds to various Christian groups and called different policy experts, including Kellie Fiedorek, a young lawyer who worked for ADF. Her job was to build out the ADF network in the states, to push their model legislation through the statehouses, and create an army of allied local lawyers who could defend it.
Soon Taylor was listening as ADF lawyers made their case that the Supreme Court might uphold a law that banned abortion before Roe’s standard of viability—and that Mississippi was an ideal testing ground. Burke at ADF explained how the legislation she was writing would work. To end the federal right to an abortion, activists needed a law that could actually reach the Supreme Court without first getting struck down for obviously violating Roe. Passing a ban that was too aggressive would be categorically struck down in the lower courts. That was the entire reason to try something in the gray zone, not perhaps as early in pregnancy as they would ideally like, but before twenty weeks. ADF was crafting the legislation with Justice Anthony Kennedy in mind—Tseytlin’s old boss—in hopes he might be a swing vote to uphold a law that crept restrictions forward and, in the process, eradicate the viability standard that was the underpinning of Roe.
As a law, it was “very, very imperfect,” Taylor reflected. He knew a fifteen-week ban would only criminalize about 3 percent of the 2,550 abortions in Mississippi each year. But stopping procedures was not really the point. ADF’s primary goal was to write bills as a litigation strategy, not craft laws that would be the strongest public policy or end the greatest number of abortions. The Mississippi bill was a legal tool to provoke a Supreme Court challenge to Roe. It could set a bigger plan in motion to eventually achieve their ultimate goal of ending all abortion in America.
“ADF made a very good case,” Taylor said. “There was a chance that the court might look at the viability line and see it is really a bit of a moving target.”
Some lawmakers in Mississippi worried they would be sued if it passed and did not want to be saddled with the exorbitant cost such litigation could bring. The Whole Woman’s Health case had cost Texas nearly $1.1 million to argue and another $2.5 million in attorneys’ fees after a federal court ordered the state to cover costs for the Center for Reproductive Rights. But ADF had a plan for that, too, offering to have its lawyers defend the law at no cost to the state. This free legal counsel was a selling point for Taylor when he lobbied the legislators to take up the bill.
Plus, Taylor had an important ally in the statehouse who he knew would push an antiabortion bill—Representative Becky Currie, a nurse, devout Christian, and three-term legislator who was one of the state’s most ardent advocates for their cause.
CURRIE WAS AN exception in Mississippi, the rare female Republican lawmaker. “I’ve been pro-life since I was eighteen and pregnant,” she said.
For Currie, the practice of regularly introducing abortion bans was simply part of being spiritually faithful, even if they would be struck down. She was baptized in the Southern Baptist Church at nine and grew up in McComb, Mississippi, a town smaller than some evangelical megachurches. She always wanted to be a nurse and the first in her family to graduate from college. When she found out she was pregnant just after finishing high school in 1975, her older sister came to see her right away to talk through options. But Currie felt she had no choice—abortion was legal under Roe, but the culture in rural Mississippi was not as liberal as in the big city of New Orleans, where her sister worked, and she felt a lot of shame—so she married the father as she finished her first trimester. They soon divorced, and she moved back in with her parents, who babysat so she could go to nursing school.
She worked in the ER, and labor and delivery, but when she felt God prompting her to run for political office, she did. She’d felt drawn to politics ever since a friend’s mother, a lawyer unlike her own stay-at-home mom, had invited her as a teenager to a meeting of the local Republican club. The job would be part time, like it is for many state legislators in America, and paid a modest amount. In 2008, she entered the house chamber, which had been controlled by Democrats since the Reconstruction era after the Civil War. Three years later, Republicans took control as part of the Tea Party wave, and antiabortion activists suddenly had more support for their agenda.
Currie’s experience as a nurse shaped her political views. She often told the story of an incident in the ER as a young nurse when a pregnant woman came in and delivered far too early. The details varied some in her telling—sometimes the premature infant was a girl, sometimes it was a boy, sometimes it was fifteen weeks, others fourteen weeks. But what Currie remembered most was that she waited until the heart stopped so she could put the remains in a plastic container to send to the lab. What Currie understood about what happened was that the fetus “wanted to live.”
“I just never got over that,” she remembered.
So decades later, when she met with Taylor about a new antiabortion bill, fifteen weeks seemed to Currie like a good marker. She introduced the bill, called the Gestational Age Act, in early 2018. “The more we worked on the bill, it just felt anointed,” she said. “You just know when it was right.”
Such legislation, with Currie as the public face, was the ultimate realization of the strategy that Dannenfelser and Kellyanne Conway had lectured the men about all those years ago. She was exactly the kind of woman Dannenfelser envisioned having power when she started SBA. A single mother, Currie had decided against having an abortion but still fulfilled her dream of becoming a nurse and then a politician. She could speak personally and authentically about the subject and her faith in a way that required none of their hotel conference room trainings.
Currie was far from alone. At this critical juncture, women had become the face of the antiabortion movement. Antiabortion activists had honed their strategy of relying on women to champion their policies. Across the country, Republican women made up less than 10 percent of state legislators from 2008 to 2017, but they were significantly overrepresented as sponsors of antiabortion bills, according to an analysis of the period. Of the more than 1,600 antiabortion bills that were introduced during that stretch in state legislatures, nearly half had a female Republican cosponsor, and a third had a female Republican as the primary sponsor. It became more complicated for Democrats to paint abortion opponents as anti-woman, when women were leading the charge.
But as Currie proudly championed the bill, she did not know the full story. She thought her vision for fifteen weeks, rooted in her foundational story of the beating fetal heart, had generated the plan. No one had told her that the Alliance Defending Freedom had coordinated its strategy with Taylor before their meeting, or that fifteen weeks was part of its specific legal plan to undermine Roe, she said. Or that Misha Tseytlin, the former solicitor general of Wisconsin, had brainstormed this possibility at Leonard Leo’s Federalist Society cocktail hour and advanced it at a posh California resort alongside high-profile Republican leaders and attorneys. To her, the bill simply made sense based on her experience as a nurse watching a premature delivery.
“I really thought we came up with fifteen weeks,” Currie said later. “But when talking to other groups, it was kind of like the decided number. But also maybe that is just how they talk to legislators, let them think it was their idea.”
The legislation, steered by Burke, was written in a way that suggested it was rooted primarily in medical reasoning. But in reality, it featured specific legal language for ADF’s longer-term argument to undercut Roe. Roe had called the developing embryo and fetus “potential human life.” This bill described it as “an unborn human being” and highlighted specific details of prenatal development as evidence. Between five and six weeks’ gestation, “an unborn human being’s heart begins beating,” the bill claimed. said. At eight weeks, “an unborn human being begins to move about in the womb.” At nine weeks, “teeth and eyes are present, as well as external genitalia.” At ten weeks, “vital organs begin to function.” The legislation stated that the United States was one of seven countries in the world to allow for abortion after twenty weeks of pregnancy, laying the groundwork to argue that the country was an outlier among developed nations.
The bill picked quotes from the decisions in Roe and Casey that acknowledged that states had an interest in protecting “the potentiality of human life” and “the life of the unborn.” ADF’s idea was to design the legislation to draw out what it saw as an inherent conflict in those two rulings—both allowed abortion before viability but also said that states had an interest in preserving potential life. The bill itself would argue that Mississippi was doing what the Supreme Court allowed, acting in the interest of potential life, and force the court to reconcile the difference.
Currie didn’t pick up on the bigger legal strategy embedded in the legislation, a bill she believed she had crafted with Taylor and Representative Andy Gipson, a lawyer and Baptist minister who had sponsored the state’s religious freedom bill, which established “biological sex as objectively determined by anatomy” and forbid state government from punishing people who refused to provide services, medical care, or housing because of a religious opposition to same-sex marriage and transgender rights. Yet before she introduced the legislation on the house floor, Currie said she received emails from ADF, a group she said she didn’t recognize. The lawyers encouraged her to frame the law as about the mother, not about the baby, and to focus on the medical harms to women from abortion after fifteen weeks, she said. The argument reflected their strategy to make the ban more palatable to the general public as it moved through the courts and into the national spotlight. But Currie did not see why that kind of marketing campaign was necessary. Mississippi had an antiabortion supermajority, and they would pass the law, which was her goal.
The same week Currie introduced the bill in Mississippi in January 2018, ADF leaders in Washington, DC, unveiled their plan to a group of grassroots allies the morning after the March for Life. They outlined their steps at the Evangelicals for Life conference, hosted by the public policy arm of the Southern Baptist Convention, in another closed-door gathering. Even those who were paying attention to what was happening in Mississippi saw just another abortion ban, but slowly and quietly, ADF was bringing larger swaths of its network into its mission.
“We have a plan to make Roe irrelevant or completely reverse it,” Kevin Theriot, vice president of ADF’s Center for Life, said as they explained how Mississippi had just introduced a bill banning abortion at fifteen weeks, which had never before been done.
The court would not be able to ignore a ban that limited abortion just to the first trimester, Burke told them. “We’re kind of basically baiting them, ‘Come on, fight us on turf that we have already set up and established,’” she said. Mississippi would be the first of several states to pass their fifteen-week bills, she said.
“Once we get these first-trimester limitations in place,” Burke said, “we’re going to go for a complete ban on abortion, except to save the life of the mother.”
BACK IN MISSISSIPPI, Democrats, as expected, protested when it was time to debate the bill on the house floor. The bill “does nothing to help the mother who has the unwanted pregnancy. You’re not putting any money into social programs that will help her out,” said Representative Adrienne Wooten, a Democrat from Jackson. “What is this body going to do when these children get here? Is this body going to take this baby into their own house?”
The legislation amounted to a public health experiment with immense consequences: What would happen if such a poor state, one already among the worst for maternal mortality, further restricted abortion? Already, Mississippi was one of the most dangerous places in the country to give birth. The state had the nation’s highest fetal mortality rate, highest infant mortality rate, highest preterm birth rate, highest miscarriage rate and low birthweight rate. Those public health realities didn’t impact the bill’s chances of passage. The challenge Currie faced wasn’t whether her law was too restrictive—it was whether it went far enough. Some local antiabortion activists pushed for a so-called heartbeat ban instead that would make abortion illegal at about six weeks of pregnancy.
Republican leaders rallied their forces behind the fifteen-week plan. Christian groups like the Mississippi District United Pentecostal Church convinced hundreds of pastors to sign a letter to assuage reluctant lawmakers that they had the support of churches if they moved forward. The American Family Association, which was started in Mississippi and whose founder also helped start ADF, blasted supporters with emails urging them to call legislators.
As the bill made its way through the legislative process, Taylor began taking regular prayer walks around the capitol. As he circled the senators’ reserved parking spots, the leafy trees, and the landmark bronze monument honoring the Women of the Confederacy—“Our Mothers, Our Daughters, Our Sisters, Our Wives”—he prayed. A lifelong Catholic, a distinct minority in the largely evangelical state, Taylor felt like he was doing the work God had called him to do.
Currie, too, began to feel like the bill had a special divine purpose. “I feel like I’ve done my job, and I hope the Lord does,” she reflected.
When Governor Phil Bryant signed the bill into law, with Currie smiling next to him, it became the tightest restriction on abortion in the nation. It made no exceptions for rape or incest, just a narrow provision to preserve the physical life of the woman or in cases of “severe” fetal abnormality. “We’ll probably be sued in about half an hour,” Bryant said to chuckles from supporters in the room.
His estimate wasn’t far off: it was less than an hour before Jackson Women’s Health Organization—the Pink House—filed the lawsuit through their attorneys at the Center for Reproductive Rights. The district court issued a temporary restraining order the next day, putting the law on hold while litigation progressed. In its brief, the center pointed out the limited impact such a law would have on the actual abortions happening in the state. The Pink House performed abortions only until sixteen weeks of pregnancy, the center’s lawyers wrote, and had done just seventy-eight abortions when the fetus was identified as being fifteen weeks or older in 2017.
Going after that small fraction, of course, was exactly the plan. Not too early in pregnancy and not too late, but exactly the time that might compel the Supreme Court to wade back into abortion jurisprudence. “We were seeking to be incremental and strategic,” Taylor said. Christian activists were learning to control their “moral passion,” to accomplish their long-term goal, he said.
To the outside observer, the law looked like just another dead-on-arrival right-wing effort to outlaw abortion, not meaningfully different from the hundreds of such laws passed in recent years. But to those on the inside, this law set in motion a carefully calculated experiment, with a new hypothesis designed to reach a new conclusion. “The abortion clinic in Mississippi took the bait, so to speak, and immediately filed suit,” John Bursch, an ADF lawyer, said.
There were still so many unknowns. For the law to serve its intended purpose, antiabortion activists needed a majority on the Supreme Court. ADF attorneys and their allies like Tseytlin had designed the legislation to target Justice Kennedy, but he was still a relative wild card.
“As a Christian, sometimes you don’t know God’s plan, and he kind of makes things happen,” Currie said.