Days after Brett Kavanaugh was confirmed in October 2018, Leonard Leo went on a media tour to boast about his new justice. His Federalist Society, he said, sitting down with PBS, had become much more powerful than just a “ragtag group of largely law students.” Their ranks now included some of the country’s most powerful people. Yet even as he won his decades-long dream of a conservative court, Leo urged caution. “If a vacancy occurs in 2020, the vacancy needs to remain open until a president is elected and inaugurated and can pick,” he said. “That’s my position, period.”
Senate Republicans should not be hypocritical, he suggested. They should treat Trump as they did Obama with Antonin Scalia’s seat, and deny the president the ability to get a justice on the court so close to the election. It was not a particularly hard vow to make. No president since Ronald Reagan had gotten three justices in a single term.
Leo believed the contentiousness of the confirmation process—how wronged Kavanaugh felt by it all—would work in his favor, making the new justice more uncompromisingly originalist and conservative in his views. “Brett Kavanaugh has seen how unforgiving the Left can be,” he told Time magazine. “So Justice Kavanaugh has every incentive to basically do what he wants to do and ignore the Left.”
But Kavanaugh was just one piece of the antiabortion leaders’ plans, especially because they were not sure how far he would be willing to go. The entire machine they had been building to undermine abortion rights was starting to whir. They’d gotten the White House, expanded their margin in the Senate, and had justices they believed supported their cause on the court. In twenty-two states, Republicans now held complete control of state governments—both chambers of the legislature plus the governorship—giving them total power over abortion legislation. As Democrats celebrated their pink wave, the antiabortion movement looked to what it did control, which was significant. Power mattered, but to matter, it had to be in the right places at the right moment.
All those years of liberal protests—in the Texas State Capitol, on the National Mall for the Women’s March, and on the steps of the Supreme Court during Kavanaugh’s nomination—were proving to be no match for unified conservative control in statehouses. Republican states had now enacted 424 abortion restrictions since Tea Party Republicans took over state capitals in 2011. Eight years later, a new reality was rapidly becoming clear: in many parts of the United States, it was now more difficult to get an abortion than at any time since Roe v. Wade legalized the procedure nearly fifty years earlier. By early 2019, around twenty cases, with different legal strategies to gut Roe and Casey, were in litigation in lower courts, lined up to possibly reach the Supreme Court.
Activists in Mike Pence’s home state were hoping Indiana’s law banning abortion for race, gender, or disability preference might introduce new protections for the fetus. Alabama lawmakers hoped their strategy of banning the most common method of abortion would undercut Roe. In Ohio, the state Right to Life group reversed seven years of its incremental approach and backed a six-week “heartbeat” ban, which the governor soon signed into law. “Now is our time,” Michael Gonidakis, president of the group, told The New York Times. “This is the best court we’ve had in my lifetime, in my parents’ lifetime.”
Antiabortion activists did not build just one plan. They built an ecosystem. So many people were working to dismantle Roe, in so many different ways, with so many different arguments, that eventually something was bound to work, they hoped. Even ADF was creating additional possible pathways to maximize its potential success. And suddenly, just after the 2018 midterm elections, they needed options.
A federal judge declared Mississippi’s fifteen-week law unconstitutional and blocked it, permanently. The law “unequivocally” infringed on the due process rights of women guaranteed in the Fourteenth Amendment, ruled US District Court judge Carlton W. Reeves. He expressed frustration that Mississippi and other states insisted on passing these bans knowing they would be struck down, at a “tremendous” financial cost to the taxpayer.
“The Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting,” he wrote in his decision. “The real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”
The fifteen-week law “is closer to the old Mississippi—the Mississippi bent on controlling women and minorities,” Reeves, only the second Black judge appointed to a federal judgeship in the state, wrote in his opinion. “The Mississippi that, just a few decades ago, barred women from serving on juries ‘so they may continue their service as mothers, wives, and homemakers.’ The Mississippi that, in Fannie Lou Hamer’s reporting, sterilized six out of ten black women in Sunflower County at the local hospital—against their will. And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment—the authority guaranteeing women the right to vote.”
His opinion infuriated conservatives but did not stop ADF’s plan to force a higher court challenge. Mississippi would, of course, appeal to the Fifth Circuit, and an ADF lawyer lined up to defend Governor Phil Bryant in his amicus brief, the “friend of the court” arguments that outside parties submit to support their position in a case.
But the ruling did complicate their strategy. Mississippi’s law had been blocked so quickly. Some lawyers on ADF’s team wondered if fifteen weeks was too early, and if they should try a number closer to twenty weeks. They started crafting another piece of model legislation that set the limit at eighteen weeks.
Like the fifteen-week mark, the eighteen-week mark had nothing to do with moral teachings about when a fetus becomes a person, the rights of a pregnant woman, medical realities, or the small number of abortions that occurred after that point in pregnancy. If the model legislation benefited women and children in that moment in that state, it was an ancillary outcome to the primary objective. This bill was again a litigation strategy and ADF was searching for that legal sweet spot. Their plan was still incremental: first to get rid of Roe’s viability line, chipping away at the decision; and then, sometime in the future, ask the court directly to overturn Roe in a separate case.
Still, there was the problem that reaching the Supreme Court was a gamble in any situation. The court receives more than seven thousand requests for oral arguments each year but takes up only about eighty.
To increase their odds of getting picked, they needed a circuit split. If different federal circuit courts of appeals issued conflicting rulings about similar laws, the Supreme Court might feel compelled to resolve the legal dispute and set a new standard for the nation. Mississippi was never going to be enough. To provoke a Supreme Court challenge to Roe’s viability rule, the strategy had to be much wider. They needed to find other states to pass their laws. ADF knew that any restriction would be contested in court by abortion-rights organizations, prompting another ruling. They would try to manufacture a split.
Attorneys reviewed the map. Mississippi was assigned to the Fifth Circuit Court of Appeals, increasingly known for its hard rightward turn under Trump, which might uphold the law. That would get them one ruling. Then they looked for states with favorable legislatures and governors who would be likely to pass an abortion-restriction bill. They trained their sights on two: Utah, in the Tenth Circuit, and Arkansas, in the Eighth. Both states had veto-proof Republican supermajorities in their legislatures, plus Republican governors.
ADF’s strategy in state after state was to rely on the web of conservative Christian activists on the ground. Most every state had a policy group that promoted their values and an informal network of Christian lobbyists, legislators, local political activists, and church volunteers.
ADF invited these people to conferences, like the one Misha Tseytlin had attended, to organize them behind their shared goals of changing American culture through the law. Their closed-door legislative workshops, training, and networking sessions had a minimal online footprint, leaving little public trace of ADF’s efforts to assess the nationwide state of play for their priorities and coordinate strategy.
ADF could trust these devoted activists to push their shared agenda, even if the grassroots didn’t see the full legal chessboard. To strike at Roe, all it had to do was activate its allies and tap their local networks. ADF would stay two steps removed, ensuring the plan and its role as a master broker would remain in the background.
They already had a head start in Utah, where they had tried to create a split when they first pushed the Mississippi law in 2018. Gayle Ruzicka, president of the Utah Eagle Forum and a mother of twelve, had grown excited when she had first heard the pitch from a friend with the state attorney general’s office who was volunteering with ADF. “‘I’ve been working with them, there’s this great bill, this fifteen-week bill, and they’ve written it in a way where we think we can get it through the courts,’” she remembered him saying. “The whole idea was, ‘This is something that could overturn Roe.’”
Ruzicka needed no convincing. Like so many others in the movement, ending abortion was her life’s ambition. For years, she had been a forceful presence inside the statehouse, peering down at lawmakers from the galleries, pressuring them to vote her way. She had worked with Phyllis Schlafly, the conservative anti-feminist activist, for decades, running a long-standing Christian policy center in the state. Decades earlier, she had organized the mothers in her community, the Church of Jesus Christ of Latter-day Saints, against issues like sex education and drugs.
They had to move quickly—the Utah legislative session was already in motion, and it was short. Ruzicka mobilized her allies, including Mary Taylor, who led Pro-Life Utah. She found a potential Republican sponsor, Senator Margaret Dayton, then the state’s longest-serving female legislator, and gave her ADF’s bill. Dayton had opposed abortion for years and had proposed legislation like banning abortion based on the sex of the fetus. But she did not want to support abortion up until fifteen weeks. Abortions later in pregnancy were like “child sacrifice,” Dayton said, “like sacrificing children on the altar of convenience.”
Like Becky Currie in Mississippi, Dayton said she didn’t really know the ADF lawyers who came up with the bill. But she trusted Ruzicka to be her intermediary and just bring her the information, and agreed. “It wasn’t my endgame, but it was better than nothing,” she said. She also did not know details about Currie’s bill in Mississippi or ADF’s work to get that legislation moving. “We thought we were leading,” she said, “and we were glad to do so.”
From the outset, Dayton ran into trouble. The men in the Republican caucus seemed comfortable with the idea, she said, but some of the women did not want to take a stand either way. She ran out of time, and the bill stalled before she introduced it. Dayton decided to not seek reelection due to health issues. Ruzicka watched Mississippi’s fifteen-week law move ahead alone.
When the time came for the 2019 session, Ruzicka set up a mission control center at long tables in the capitol cafeteria, organizing homeschool kids and retirees to rally lawmakers. She recruited a new Republican woman to sponsor the bill, Representative Cheryl Acton, a mother of four who ran for office to advance “freedom, civility, and the worth and dignity of every individual and family.” But then, after the district court struck down Mississippi’s law, Ruzicka heard from Acton and ADF lawyers: they wanted Utah to try eighteen weeks instead.
Kellie Fiedorek, the ADF lawyer who ran the network of state allies, went out to Utah to help direct the plan, Ruzicka said. Mary Taylor and Ruzicka were crushed. Banning abortion at fifteen weeks would stop more procedures and save more babies, they argued. But they listened to Fiedorek. The big-time lawyers were the experts, and if the fifteen-week law was truly never going to make it to the Supreme Court, they did not want to waste time. “We were so sad. There were tears,” Taylor reflected later. “We were so heartbroken to have to give that ground.”
Still, Ruzicka tried to focus on the ultimate prize: overturning Roe. “It’s always strategy,” she said. She pivoted to her next step: working to pass a trigger ban that would outlaw nearly all abortions in Utah if Roe were overturned.
As Ruzicka and Taylor worked in Utah, ADF ran a similar play in Arkansas, laying the groundwork in yet another circuit court. Just like in Mississippi and Utah, ADF got in touch with the person who ran a top Christian policy group in the state. In Little Rock, that was Jerry Cox, president of the Family Council. Around the time of Kavanaugh’s confirmation, he was busy planning bills for the 2019 legislative session that aimed to advance biblical values in state law. His group was part of a network of dozens of similar groups in about forty states, affiliated with Focus on the Family, the evangelical group that shared a founder with ADF. Cox’s policy group regularly attended ADF gatherings for lobbyists and policy allies like him to strategize legislative action.
It was a symbiotic relationship, reflecting ADF’s outer network. “They don’t have the boots on the ground like us,” Cox said. “If they want to see a law passed in the state, they are dependent on us to walk into the capitol and find a sponsor, get people to vote for it.”
ADF offered much in return. It helped smaller organizations like his, Cox explained. Local nonprofits often lack the financial resources to hire lawyers on their own to write legislation. ADF could deliver the bills to advance his values. “It’s kind of like ordering up a hamburger,” he said. ADF then tracked the legislation across the states to produce results on a larger scale.
Like Jameson Taylor in Mississippi, Cox had worked with ADF lawyers several years earlier to enact a religious freedom bill like Pence’s in Indiana, as conservatives pushed back against gay marriage. And, like Ruzicka and Taylor, Cox had been working on antiabortion legislation in Arkansas for years, since Democratic governor Bill Clinton signed a parental consent law that he championed in 1989.
Cox initially wanted to try a fifteen-week bill after watching Mississippi. He knew the magic number of weeks could not be less than fifteen—Arkansas had tried a twelve-week law in 2013, and the courts struck it down. But an eighteen-week ban would not have much of an impact on stopping abortions. In 2017, only seventy-five abortions were performed in Arkansas after eighteen weeks, just 2 percent of all the abortions the state health department recorded.
But Fiedorek’s strategy convinced him. The point was the litigation tactic, not really the policy itself. The process would repeat ADF’s play in Mississippi, but with the new twist of eighteen weeks. ADF brought Cox into the fold, telling him about its work in Utah and explaining its broader legal strategy. “They said if both of these percolate up through the system, we might end up with a split between circuits with the Eighth Circuit holding ours, and the circuit that Utah is in, going the other way,” Cox remembered. “And therefore we would get a case in front of the Supreme Court.”
Cox deferred entirely to ADF’s direction on the eighteen-week bill, just as Ruzicka had in Utah. He wanted to be certain that the bill would do “what we intend, which is to give the court an opportunity to either overturn Roe or chip away at it.
“We said, ‘Write it the way you want to because this is going to go before the Supreme Court,’” he remembered telling ADF. “They wrote every bit of that bill. We totally relied on them.”
The pipeline was extraordinarily powerful. It appeared to the public, and even some local activists, like a grassroots strategy, emerging organically from a groundswell of conservative pushback to abortion rights among activists and state legislators. But the inner maneuverings of ADF’s shadow network revealed that the cultural change campaign was really coming from an elite group at the top. The local activists pushing these bills deferred to ADF lawyers and acted simply as vehicles to turn the group’s ideas into actual policies—and lawsuits.
Cox asked Representative Robin Lundstrum, a lifelong Southern Baptist who was on his board, to sponsor the bill. Lundstrum was another ideal spokeswoman, representing the conservative womanhood her movement wanted to emphasize. She had a doctorate in health sciences and had started her career working for a rape hotline in Tulsa that connected victims calling 911 with an advocate who met them in the ER and helped them navigate everything from prosecution to pregnancy choices. She remembered being in her early twenties, sitting with a rape victim who decided to give birth and through the experience found some meaning in her trauma. That experience made Lundstrum oppose abortion even in cases of rape and incest—and more open to the death penalty for abusers.
“In my estimation, we don’t punish the child; we don’t abort a child for rape and incest. If we want to punish someone, it should be the perpetrator. We need to up the penalties,” she explained.
Lundstrum decided to sponsor the most hard-line version of the bill. It would have no exceptions for rape and incest. It would change the way pregnancy is dated, to count weeks from a woman’s last period instead of from fertilization. Arkansas’s existing twenty-week ban dated weeks to fertilization, so this change effectively moved up the timeline by a month. The legislation was written as an eighteen-week ban. But in effect, it was closer to Mississippi’s fifteen weeks.
Even though there was a Republican supermajority, the bill was “a slugfest” to get passed, Lundstrum said. Partway through the process, she heard that the governor, Republican Asa Hutchinson, was trying to kill the bill because it had no exceptions for rape and incest. She rushed to his office with Senator Jason Rapert, her cosponsor in the Senate.
“Let me be frank, out of the four people in this room, only one of us has been pregnant, and I have been pregnant four times,” she told him. “Unless you know something I don’t, the cake is baked at eighteen weeks. You know you are pregnant.” But, she remembered, “He said, ‘Add back the rape exception, otherwise we will kill it.’ … We did, much to my chagrin.”
Hutchinson signed the bill on March 15. Much of the language was identical to Mississippi’s, down to “unborn human being” and the fetal development at various weeks—except for the eighteen-week change. In Utah, Governor Gary Herbert signed his state’s version a week later.
The same legislative session, Arkansas also passed a trigger ban that would outlaw nearly all abortions if Roe were overturned. The idea was to get all the pieces in place. That legislation was sponsored by Rapert, who later that year started the National Association of Christian Lawmakers, which organizes lawmakers around “clear Biblical principles.” His group was the first to unite conservative Christian lawmakers, federal, state, and local, around their shared religious values, which could then be turned into legislation they could push in statehouses across the country. The group cited an Old Testament verse as a rallying cry: “Blessed is the nation whose God is the Lord.” It was a step toward a long-term outcome of lowering the wall separating church from state.
EVEN WITH ADF’S planning, many pieces had to fall into place for Roe to be overturned. In Mississippi alone, where the case was still waiting at the Fifth Circuit, there was also the matter of the attorney general, the law enforcement official who would be responsible for fighting for the law in court. Mississippi’s attorney general, Jim Hood, an antiabortion Democrat, was running for governor. There would be an open race to replace him, in a state that backed Trump by double-digits just three years earlier. Now, ADF would likely get a Republican attorney general, but it could be one who wasn’t known as a particular champion of its cause.
Lynn Fitch, the state’s treasurer and most powerful female elected official, had jumped into the race. Unlike Currie, Fitch hadn’t built her political career out of the antiabortion movement. She rarely talked about the issue, though she realized the next legal steps of the case would be waiting for her if she won. When Mississippi’s fifteen-week ban passed, the Democratic woman who would run against her in the general election—Jennifer Riley Collins, the executive director of the American Civil Liberties Union of Mississippi—warned that it would “seriously harm low-income women, women of color, and young women.” If elected, Collins would be the first African American to win a statewide office in more than a century, when a handful were elected during Reconstruction. But the fifteen-week ban wasn’t a major issue in the Republican primary. So Fitch, then state treasurer, largely kept quiet on the law, focusing her early campaign on crime, human trafficking, and protecting gun rights.
The Supreme Court had also handed the antiabortion movement a setback in February 2019, blocking a Louisiana law that required doctors performing abortions at clinics to have admitting privileges at local hospitals. The law would have left the state with only one doctor in a single clinic authorized to provide abortions. John Roberts joined the liberal justices to keep the clinics open. The short order gave no reasons for the decision. Only Kavanaugh published a dissent, saying he would have let the law go into effect to see if additional doctors could obtain admitting privileges. The case did not end the law, just put it on hold pending an appeal, meaning it was likely headed back to the court to be argued on the merits during the next term. If that happened, those arguments could end up becoming the first true test of what the antiabortion movement hoped would be its powerful new majority.
For now, abortion-rights supporters heralded their victory. “The Supreme Court has stepped in under the wire to protect the rights of Louisiana women,” said Nancy Northup, the president of the Center for Reproductive Rights. “This should be an easy case—all that’s needed is a straightforward application of the court’s own precedent.”
Senator Susan Collins of Maine, who voted for Kavanaugh, dismissed his dissent as any kind of sign that he would take a more forceful strike against abortion rights in the future. “To say that this case, this most recent case, in which he wrote a very careful dissent, tells you that he’s going to repeal Roe v. Wade, I think, is absurd,” she told CNN. “There is a deliberate misreading of what he actually wrote, or people have just assumed and not read the decision.”
But leaders of the antiabortion movement saw Kavanaugh’s dissent as a signal that he could be with them. Their network kept working, pushing an unprecedented rush of abortion bans through conservative statehouses in 2019. Those laws gave ADF and other antiabortion lawyers options as they looked toward the Supreme Court. The laws were being lined up “like airplanes on the runway,” Cox said. Mississippi’s—or ADF’s—fifteen-week law was already “airborne,” he said, preparing for its case at the Fifth Circuit. And behind it, the taxiway was filling.