Scott Stewart barreled down the highway, Washington fading in his rearview mirror. He had never set foot in Mississippi. But Donald Trump’s defeat had thrust him into the job market, and Lynn Fitch, the state’s attorney general, had reached out. She needed a new solicitor general to lead the state’s biggest cases. The spot had been open for months, ever since Trump had nominated Kristi Johnson, who helped write the Dobbs cert petition, to become the first female judge for the Southern District of Mississippi. Fitch’s team found his name tucked into a pile of résumés from the Republican Attorneys General Association (RAGA), a group that had received more than $13 million from Leo’s network of organizations and whose executive director used to work for the Federalist Society. Fitch hadn’t heard of Stewart. When he interviewed via Zoom over Christmas, he didn’t realize his camera was off. It didn’t matter—Fitch liked what she heard.
Stewart was thirty-eight, mobile, not yet married, and most of all ambitious. Over the past decade and a half, the job of state solicitor general had become a higher-profile slot for ambitious young lawyers, even a path to more prominent posts like judgeships. For Stewart, the opportunity was ideal—a Republican state with a Democratic president in the White House offered lots of potential for conflict, interesting arguments, and high impact. And there was the lure of the Dobbs case, potentially his first chance to argue a case at the Supreme Court.
When he got the job, a friend he had worked with at Gibson Dunn, a law firm known as a conservative powerhouse, reached out to congratulate him and shared advice on being a new solicitor general. It was Misha Tseytlin, who had brainstormed the fifteen-week concept. The network, as always, was tight.
Behind the wheel, Scott had a thousand miles and two long days of driving to think about how to apply all he had learned in Washington to a state that Washington often forgot about. If the Trump administration had taught him anything, it was to hold the line. Trying to stop Jane Doe from getting an abortion was just one example. He had defended some of Trump’s most controversial immigration policies, including the legal fallout from the policy to separate children from their parents at the border.
Jackson, Mississippi, he knew, would be like no other place he had lived. Tall and fit, with sandy-brown hair, Stewart was a California kid. His father coached tennis to Hollywood stars, and Stewart learned the game on their backyard court sandwiched between the beach and steep canyons of Malibu. But Stewart was not part of the California that conservatives often criticized for liberalizing America’s sexual values and imposing them on the country. His family was among the conservative minority.
Stewart was used to standing for conservative values in liberal elite culture, places like Princeton, which recruited him to play tennis, and Stanford, where he kept his views largely to himself amid what he saw as the stark ideological uniformity of the place. In Portland, Oregon, he clerked for Judge Diarmuid O’Scannlain, a pugnacious voice for right-wing judicial thought on the liberal Ninth Circuit. Stewart parlayed his conservative credentials after his Clarence Thomas clerkship, the year Antonin Scalia died, into a post on Trump’s transition team, assessing the legality of various potential policies.
He crossed the state line into Mississippi, entering the poorest and hungriest state in America, with an old-money class steeped in the traditions of the Deep South, like Fitch. But there was one major way he fit in: for the first time in his life, Stewart now lived in a place where he was in the political majority.
Until it looked like the Supreme Court would actually take up the Dobbs case—if it ever did—it seemed prudent to focus his attention on other pressing issues at work, Stewart reasoned. At home, he looked for a church, and settled on a Presbyterian congregation, an evangelical offshoot that did not ordain women as pastors.
Just like Nancy Northup, Fitch and Scott watched the court seem to ignore their case for months, never offering a decision on whether to take it up. And like their opponents, they found the seeming indecision strange. Everyone had a theory about why the justices were dragging their feet. Maybe John Roberts wanted to give time for Amy Coney Barrett to settle into her new job, fearing the case was too political too soon after she was seated. Or perhaps the court wanted a different Roe test case, one that wasn’t as clear-cut a shot at the viability standard. Or maybe the justices wanted the political drama from the election to settle down before embarking on a controversial ruling.
Maybe they would not hear the case at all.
THE SILENCE BROKE one morning in May 2021.
Fitch was on her way to the airport after attending an event hosted by RAGA. That weekend, the organization had an exclusive gathering at a private island on the secluded coast of southeast Georgia nestled between the marsh and the sea. The three-day retreat at the Cloister, with its grand verandas and luxe accommodations, was a perk for the most elite donors to the organization—the kind of weekend typified by golf, cigar-and-whiskey receptions, and the spa. There, corporate bigwigs schmoozed with top state law enforcement leaders, people like Fitch, who would often determine the fate of their interests in America’s highest courts.
But during this weekend, the organization was in disarray. Major donors were fleeing after learning that its policy arm authorized robocalls urging supporters to march on the Capitol on January 6. Staff and leaders were stepping down in protest, and its chairman had resigned. But the group had an angel investor: its biggest funder was the Judicial Crisis Network, one of Leo’s signature dark-money nonprofit groups—which had been rebranded as the Concord Fund. The fund was part of Leo’s ballooning web, a constellation of organizations that through name changes and difficult-to-trace spending—and with help from the secret $1.6 billion donation from Barre Seid—circulated money to accomplish the conservative agenda. The fund had stepped in with a $2.5 million check.
Fitch stared at the text from her chief of staff, Michelle Williams, trying to process the magnitude: We just got cert.
The Supreme Court had agreed to hear the case that could strike at Roe. Williams knew the significance of the words she had sent. She was part of Marjorie Dannenfelser’s original sisterhood back in the 1990s and even babysat her children in the early SBA years, before becoming Representative Michele Bachmann’s chief of staff with the Tea Party rise. In the Trump administration, she was chief of staff at the Office of Management and Budget to Russell Vought, a longtime abortion opponent who had enacted the Trump policy to defund Planned Parenthood.
By the time Fitch got to the airport terminal, she saw her own face and blonde bob—an annoyingly old headshot, she noted to a staffer—on what felt like every television screen. It was happening. The hopes of the conservative movement, and fears of the abortion-rights world, rested with Mississippi.
That evening, Scott Stewart, now the Mississippi solicitor general, pulled up Roe v. Wade for the first time in a long while. He had a lot of reading to do. He had never really studied abortion cases before, except for Roe and Casey. It was a strange area of law—there had been so many cases, over so many years, and almost none of them had a unanimous decision. One, Stenberg v. Carhart, had eight opinions for nine justices.
He was clerking for Clarence Thomas when the Supreme Court struck down the Texas abortion restrictions in Whole Woman’s Health, the ones that Wendy Davis had filibustered—except for the twenty-week limit. Thomas dissented, arguing that the full law should stand because courts should defer to legislatures regarding abortion. And there was the case of the pregnant detained Jane Doe. But other than that, abortion had not come up often in his career. The legal arguments he made in the Jane Doe case were not primarily about Roe but about whether the girl had constitutional rights given her undocumented status.
Now, Stewart had to move quickly. Mississippi would have barely two months to submit a written brief to the court to present its case. And he would have just a few months after that to prepare for oral arguments scheduled for the court’s fall term. It was the biggest case of his life.
He had to decide on a strategy. Plenty of people in the antiabortion and conservative legal movements had ideas about what he should do, including ADF’s flotilla of lawyers. By 2021, they had spent years seeding the fifteen-week law, first by adopting Tseytlin’s idea to find a strategic number of weeks, then crafting the model legislation and working with state representative Becky Currie and Jameson Taylor to push it through the legislature, and then creating additional paths in Utah and Arkansas. They felt a strong sense of ownership over the case. But so did Fitch and Stewart, and unlike those state legislators who just adopted ADF’s bills, they had already begun crafting their own plans.
Fitch’s original cert petition had focused on upholding the Mississippi law, and mentioned the possibility of overturning Roe just as a footnote, buried after eighteen pages: “If the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the Court should not retain erroneous precedent.”
He knew a lot of lawyers would encourage him to continue down that easier path: to simply argue that Mississippi’s law should be upheld. To not push for the whole overturn of Roe but to chip away—as the movement had for so many decades—and get the court to undo the viability standard.
But for Stewart, that was thinking too small, too safe. This moment was different from all those decades past. Trump had pushed their cause from the biggest bully pulpit in the land. Conservatives now had a majority on the court that seemed to be on their side.
It was not a moment for compromise, Stewart reasoned. It was a lesson he had learned from Thomas, his old boss, who was known to hold the line without deviation. Stick with a position, take the heat, and never budge. It was a trait Stewart found rare and admirable.
When you believe something, he had learned, you go all the way. His argument had to be bigger, bolder. He would be steadfast: Roe and Casey were wrong and must be reversed.
IT DID NOT take long for top Alliance Defending Freedom lawyers to book flights to Jackson. They saw Dobbs as their project, going all the way back to that idea at the Federalist Society meeting after Trump’s election to find a strategic number of weeks. If they played this case right, they might not need the circuit split they were trying to provoke with Utah and Arkansas. This case alone could accomplish their objective of undercutting Roe’s viability line.
It was a crucial moment for the entire antiabortion coalition—the most significant abortion case of the new Trump court. But even after years pushing for a singular goal, the coalition was not a monolith, especially on strategy. Stewart wanted to openly ask the Supreme Court to overturn Roe. ADF, of course, wanted Roe overturned—its ultimate target was to ban abortion nationwide at conception—but it favored a more limited, less risky approach. Now the group just had to make sure that Stewart and Fitch didn’t jeopardize the plan they started laying almost six years earlier, at cocktails with Tseytlin in the Mayflower Hotel.
The ADF lawyers rode the old mirrored elevators of the Walter Sillers State Office Building to the twelfth floor, ready for a private summit with Fitch and Stewart. Mississippi was their client, and ADF had been checking in, making loose plans in case its petition was taken up. This could be the case of a generation, and ADF wasn’t about to cede control.
ADF’s soon-to-be new president, Kristen Waggoner, brought a core team of top-notch attorneys and media experts, including a new lawyer ADF had hired—Erin Hawley, a graduate of Yale Law School who had clerked for Chief Justice Roberts. She was married to Senator Josh Hawley of Missouri, who had openly advertised Barrett’s antiabortion views and punched his fist to the sky on January 6, in apparent support of then-peaceful demonstrators, before he had to flee the Capitol for safety. Overturning Roe was a joint mission for the Hawleys, who had met as clerks for Roberts. “He likes to take credit for our marriage,” Josh Hawley later joked of the justice, as the couple sat onstage at a meeting of socially conservative activists. “And we like to say to him that we’re the most conservative thing he’s ever done.” The Dobbs case, Erin Hawley said, was about “the heart of a nation.” The Constitution said nothing about abortion, she would say, but the Bible was clear that it was morally wrong. Like so many evangelical believers, she would cite Psalm 139:13: “For you created my inmost being; you knit me together in my mother’s womb.”
Squeezed around a long table, with swivel chairs that felt slightly too big for Fitch’s small conference room, ADF lawyers lined up on one side and the Mississippi team on the other. The room was sparse, save a large painting of Fitch behind the head of the table, with narrow windows that looked down onto the Mississippi Supreme Court. This private meeting, one kept secret from the press, top politicians, and even other allies in the antiabortion coalition, would mark a pivotal turning point in the strategy of their movement.
The ADF lawyers outlined their thinking. Their original plan was to find the magic number of weeks that would trigger this exact court case, to get the court to remove the viability line as the limit for when states could ban abortion. When the Supreme Court agreed to hear the case, it said it wanted to hear just one of the three questions in their brief: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” To ADF, that signaled that the justices wanted to address the viability line specifically.
Priority number one, ADF lawyers argued, was to get rid of the line. Removing that limit—about twenty-three weeks—would open the door to all kinds of restrictions being upheld by lower courts. It would be a huge victory for their cause. It was a backdoor way of gutting Roe, invalidating the central principle of the original decision, without fully requiring the justices to take the thornier step of overturning fifty years of precedent. They all had to stick to the plan, a new version of the strategy their movement had adopted for decades: move incrementally and chip away.
Stewart listened as they urged caution. He already had his own plan to strike directly at Roe. He disagreed with the team around the table from ADF. The lawmakers of Mississippi had enacted a law, and that law was fundamentally incompatible with Roe, he argued. “The people of Mississippi are pro-life. They enacted this law. It is my duty to defend it to the best of my ability, and the right thing to do is to ask the court to overturn Roe,” he told the room filled with strategists who had worked on this issue for decades, according to Erin Hawley. The only effective strategy, Stewart said according to participants, was to target the very heart of it all—the right to abortion that the court had found in the Constitution in 1973. The best argument was not that this law was fine under Roe, he decided. It was that Roe was wrong.
Some of the ADF lawyers bristled. Stewart’s plan felt risky, and aggressive. If the court wanted to use this case to overturn Roe, it could, argued the ADF team. But to ask for that explicitly could be going too far, too fast even for this new court. It would raise the risk that they could be told no. A defeat would be devastating, potentially even going so far as to reaffirm abortion rights in some way and create another precedent to fight.
There was a lot to consider. It wasn’t totally clear that they had five votes to fully overturn Roe right now. Certainly, it was the best court they’d faced in a long time. But the 6–3 conservative majority was still new, and the country was still reeling from the contentious Supreme Court battles of the Trump era. ADF lawyers suspected that Roberts feared such a dramatic reversal. Roberts had a reputation as an institutionalist, sensitive to decisions that could threaten the court’s already-shaky public standing.
Brett Kavanaugh remained another unknown. He had sided with Stewart in the Jane Doe case, but, as social conservatives had pointed out during his confirmation fight, he didn’t have a long record of rulings on abortion cases. He dissented in June Medical Services v. Russo, the Louisiana case, taking a view that encouraged abortion opponents, but his short opinion just said that the doctors should try harder to get admitting privileges to local hospitals and didn’t make a major statement about Roe. Barrett’s personal opposition to abortion was well known, but to ask for a full reversal of Roe seemed to put a lot of faith in her originalist credentials.
And looming over the conversation was the reality that Stewart had never argued a case at the Supreme Court. By this point, ADF lawyers had argued and won twelve Supreme Court cases, dealing with questions of contraceptive access under Obama’s health care law mandate and anti-LGBT discrimination in public accommodations, among other topics. Their victories consistently carved out additional space for Christianity in American public life and pushed for greater religious freedom.
The ADF lawyers’ message was clear: the safest path to victory was their plan. They should simply ask the court to uphold their fifteen-week law. Ending the viability standard was as far as they could get right now.
Fitch’s team was grateful for ADF’s help. But this had the feel of a power grab—a bunch of Washington lawyers coming down to Jackson to take over once the job became a chance to make history. This was Fitch’s case. She had chosen Stewart, and Stewart was determined. There was magic in boldness, he believed, and too often, even clever litigators held back and missed having a massive impact. Mississippi would forge its own path.
“Like everything else, you get four attorneys in a room, you’re going to get ten opinions,” Kevin Theriot, an ADF lawyer who dialed into the summit by phone, said later. “It’s not that our original strategy went out the window. It was just that instead of making ‘You should overturn Roe’ the second argument, they made it the first argument.”
He added, “God had created a team that was capable of doing some really good stuff.”
It was decided. Mississippi would go for Roe. Leaving the meeting, the dynamics were clear: ADF would take a back seat to Stewart and Fitch’s bolder approach. Later, ADF played down the divide. “They were the final decision-makers on whether they were going to go for it or not,” Waggoner said. “We were happy to play a supportive role.”
Stewart’s thinking reflected the shifts that had overtaken the antiabortion movement and the conservative legal project during the Trump administration. For four years, they had gone bigger and bolder than what had previously felt possible. Their work didn’t always succeed: Jane Doe got her abortion. The new Biden administration rolled back their administrative actions. Courts blocked many of their state abortion bans.
But the efforts themselves had changed the window of possibilities. To overturn Roe, conservatives had to directly ask the court to do so. ADF may have been skittish about making the request, but Fitch and Stewart were not. Their decision to disregard ADF’s incremental advice set the terms for everything that followed.
STILL, ADF WOULD keep its promises to be involved. Waggoner offered any and all assistance to Mississippi. ADF loaned Hawley to Stewart and Fitch as an adviser. She could pull back the veil on Roberts’s thinking and the political landscape, particularly the Senate. The case was something her husband “really cares deeply about” too, she said, adding that “we didn’t discuss anything confidential.”
They needed two plans: one to manage the court, and another to manage the public. The plans had to work together, a wholesale legal and marketing strategy to present one clear, united, and unassailable front. Everything had to be controlled. They could not risk igniting a political firestorm—the court had already become so politicized. Everyone would stay quiet, functionally downplaying the case.
Even after all the power they had gained during the Trump years, there was a persistent belief in the antiabortion community that they were David fighting Goliath—that they were outsiders, small and disparate, versus their mighty opposition. Many in the movement still saw Planned Parenthood, the ACLU, and the Center for Reproductive Rights—what they called the “abortion lobby”—as the collective powerhouse, with centralized messaging, backed by white-shoe law firms ready to do pro bono work, in coordination with allies in the media. It motivated them to work harder, to be craftier, to persist at all costs.
But the reality was different now. While their antiabortion views still represented a distinct minority of the country, they had built their cause into an elite legal and ideological system, with a sprawling ecosystem of activists, organizations, lawmakers, and pro bono lawyers. They were all driving, working together on the single goal of undoing Roe and remaking the country. Their policy arms churned out legal arguments and medical studies. Their lawyers argued their cases, and their judges ruled on them, all fostered by the bench Leo built. And their allied lawmakers pushed their agenda in statehouses and Congress. Yet despite their overwhelming success, the left largely continued to underestimate them. It was their greatest strength.
Behind closed doors, Fitch’s team drew up a nine-slide blueprint, marked “Confidential”: a twelve-month political and public relations strategy in the run-up to the expected court decision on Dobbs in June 2022. “Strategy to maximize impact at SCOTUS,” it began. The whole operation was surprisingly low-budget, estimated at about $231,000, to be paid out of the attorney general’s office and Fitch’s political fund.
The case wasn’t just good policy for Fitch. It seemed like good politics, too, a chance to build a conservative brand that could boost her political career. Already, there was chatter in the state that she could run for governor. But first, this had to be managed perfectly. They shared the plan over email, with a link to contribute to her campaign.
Point one: “Ensure strongest possible legal strategy.”
That would be Stewart’s job, whose smiling headshot appeared on slide four. They needed to determine what objections each justice might be considering and then strategize to address those vulnerabilities in their legal argument.
Point two: “Communicate a positive message that echoes our briefs and creates the right overall environment for targeted Justices.”
The goal was to limit discussion of the case in the press to avoid spooking the justices about the risky politics of the case, and avoid drawing public attention to their plans. Williams, Fitch’s chief of staff, would take the lead. Fitch would not go on Fox News frequently to talk about the case. Instead, they would orchestrate a very specific media plan. She and her team would not use the word abortion. Their message would be upbeat. Fitch would cast the case as a defense of “a law to safeguard women’s health and protect life after 15 weeks gestation.” Their slogan would be “Empower Women, Promote Life.” Winning meant not letting abortion-rights advocates monopolize the narrative on women’s rights. Venue mattered too: Fitch prioritized op-eds instead of interviews, so her full words would be less likely to be edited. They would focus on outlets their fervent supporters watched, like EWTN, the Catholic television network, and conservative outlets where she would predict “a lot of celebration” once Roe was overturned.
Point three: build “a coalition of voices with diverse messages all feeding into that same echo chamber.”
The echo chamber was essential. This was their ecosystem, an effort to amplify the voices of their allies and create the impression that their community of supporters was more vast than polling indicated. Like so many activist movements, the antiabortion coalition had been strengthened in this social media decade, using the online platforms to project their rallying cries. Posts on Twitter and Facebook could take on lives of their own, and moments could go viral online. As often proved the case with social media, the effect suggested greater power disproportionate to their real-life support, at times furthered by bots and trolls. They would target three key media moments: filing the brief, oral arguments, and the expected decision.
On the day of arguments, they organized an Empower Women Promote Life Rally in front of the Supreme Court, featuring largely female lineup of speakers, including Dannenfelser and Hawkins. Williams and her team planned for every possible contingency, down to their opposition cutting their power lines. Speakers would be racially and religiously diverse, avoiding the depiction of their mission as a solely white or Christian project, and include a doctor, an atheist, a Black Democratic state lawmaker, and a mother of a child with cystic fibrosis—the wife of a top Trump official.
The whole network of people and institutions, tightened over a decade, was coming together. The Dobbs campaign would be a full-scale assault by their movement’s legal experts, conservative academics, and especially female voices who would argue the case in the court of public opinion. Fitch would craft her personal story of conservative womanhood as the ultimate vision of what they saw as possible for mothers, even single ones like her. On a trip to Washington, they filmed her slowly walking in front of the steps of the Supreme Court in a light blue suit and chunky block heels—gathering footage that seemed designed more for a campaign video than a legal case.
Fitch was the main political face, but Stewart drove the legal argument. In the weeks that followed, Stewart quietly mapped out Mississippi’s case. Meanwhile, Tate Reeves, the governor of Mississippi, was on cable news, arguing that the case wasn’t about Roe but the science of when a fetus could live outside the womb—essentially the viability line.
“Let me just tell you that for people such as myself that are pro-life, I believe that the Supreme Court made a mistake in the 1970s,” Reeves said on CNN in June 2021. “But that’s not the issue at stake that is before the court, hopefully, when the arguments are heard sometime in the fall.”
But up on the twelfth floor of the Walter Sillers Building, where Stewart and Fitch refined their plans, Roe was the central issue. For Stewart, the Dobbs case needed to be more Iceman than Maverick, a reference to characters from the movie Top Gun. Disciplined and academic, not reckless and heated. Calculated, planned in its entirety.
He tapped the movement’s network for advice, consulting allies from government to academia to think tanks. Stewart talked with fellow Republican solicitors general, religious liberty lawyers, and academic attorneys, like Barrett’s friend and neighbor Carter Snead at Notre Dame.
For Fitch, it was important that the legal argument be a continuation of her political ethos, encompassing the conservative vision of womanhood that had defined much of her career. If they could show how the country had changed for women since 1973, they could argue that Roe was no longer needed for gender equality—a foundational part of the argument made by abortion-rights organizations. The precedent could be undone because America had changed. And Fitch, with her professional success story as a single mother, could be the face of that shift.
To make that argument, Fitch and Stewart drew from the work of Erika Bachiochi, a Catholic scholar and conservative expert in feminist legal theory whose work was inspired by her conversion after a largely secular childhood. She was part of a small but rising group of conservative female scholars who had been laying an intellectual framework to invert the feminist argument of equal advancement into a case against abortion. Bachiochi saw the sexual revolution of the 1970s not as liberating women but, instead, empowering men. She believed the invention of the birth control pill decoupled sex from marriage and marriage from child-rearing, and as a result, women, she said, were brought down to “men’s standards of freewheeling quick sex.” In her thinking, it became easier for men to refuse commitment to marriage or family life, and that led to more single motherhood, which created more poverty and struggle for women.
Abortion, she thought, incentivized damaging “sexual risk-taking.” Women needed to “take their place again as gatekeepers of sex.” If abortion were banned, the potential costs of sex would increase. Criminalization of the procedure would “empower women” to expect more from men—commitment, support—and basic things like “a job, to expect them to get off their computers and get off porn and all sorts of things.” And that, she said, would force a “real maturation of men,” restoring the primacy of the family, and decreasing poverty rates. Bachiochi encouraged the antiabortion movement to advocate for pro-family policies, such as paid leave, which would make it easier for working women to have babies.
Still, she was making a philosophical case that to many in the mainstream seemed disconnected from the lived realities of modern sex, relationships, and family economics. Even when abortion was illegal, the “costs” of a possible pregnancy didn’t stop sex outside of marriage. And politically, there was little reason to believe that eliminating federal abortion rights would prompt action to improve policies for American families and pregnant women. Federal efforts to require businesses to offer paid parental leave died in the Senate during the Trump administration. And of the states with trigger laws on the books in 2021 that would quickly ban abortion if Roe were overturned, none had mandated paid leave.
Bachiochi wrote one of a flood of amicus briefs sent to the court. In an apparent milestone, there were more briefs filed by abortion opponents than abortion-rights advocates—86 to 52. The overall explosion of commentary from historians, elected officials, and medical experts was a trend that reached beyond just Dobbs, marking a larger shift in how advocacy groups tried to influence the Supreme Court. There were 23 “friend of court” briefs filed in Roe and more than 140 filed nearly five decades later in Dobbs.
The antiabortion movement flooded the court with its version of historical narratives, scientific data, and legal scholarship. It marked the fruition of a decade of new organizing and groups’ coming to organizational and political maturity. The scope of their lobbying effort revealed how the network was remaking legal thinking. Brief after brief was authored by organizations and individuals who placed their Christian vision at the center of their work. It was a reflection of the work they had done since Obama’s 2012 victory, expanding the reach of their own institutions and building greater political power. Leo himself was at the root of much of the lobbying of the court, with dozens of amicus briefs connecting back to him as a board member, financial supporter, or official of the organizations writing the briefs.
Legal scholars who had worked with Justice Barrett at Notre Dame argued that the court’s abortion precedent was unconstitutional. Dannenfelser, along with seventy-nine female state legislators, wrote that since 1973, women had increased their political representation in politics and could now advance the policy preferences of their gender legislatively and did not need to rely on the court. Medical associations that were founded to oppose abortion made the case that abortions after fifteen weeks posed significant physical and mental health risks. More than 550 elected officials, including governors, US senators, House members, and state legislators, signed onto briefs, as did twenty-four states with similar laws restricting abortion.
David Daleiden, who was then facing criminal charges in San Francisco Superior Court related to his Planned Parenthood sting, wrote a brief and cited his surreptitiously obtained quote from Dr. Deborah Nucatola twirling her salad at lunch, saying, “A lot of people want intact hearts these days.” Courts had found him and the Center for Medical Progress liable for more than $16 million in legal fees and costs and damages to Planned Parenthood, but he repeated his argument for the justices. (As of this writing, a trial on the criminal charges was scheduled for March 2024, and an appeal was still pending as to the award of attorneys’ fees and costs.)
At the Supreme Court, the relationships between the authors of some of the briefs and the justices they were trying to convince ran deep. Lawyer after lawyer had clerked for the justices or worked with them before they joined the bench. It wasn’t just conservatives; attorneys on both sides of the aisle often argued before the justices for whom they had clerked. That was simply how the court worked. In any other American courtroom, jurors and the judge typically recuse themselves if they have any personal relationship to one of the parties involved. But at the Supreme Court, such connections were not only considered standard—but an asset.
STEWART FILED THE new brief for the state of Mississippi in July, and Roe was no longer just a minor footnote. Now, he mentioned it 144 times. His argument was a full-scale assault on a precedent that had defined American life for nearly half a century, in plain language.
“Roe and Casey are egregiously wrong,” he began. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
His language was unrelenting: Roe was “hopelessly unworkable.” It had “inflicted significant damage” with “a jurisprudence that is at war with the demand that this Court act based on neutral principles.” He argued that the ruling had warped the democratic process by removing the issue from the legislature and weakened the court.
“Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court,” Stewart wrote.
He had planned to be Iceman, and in many ways, he was. The strategy was targeted, he was clinical and academic. But this was a Maverick brief, a moon shot that bucked the longtime incremental strategy of many leaders of the antiabortion movement, even as it stated what they truly believed.
His approach was the culmination of a decade of conservative escalation, dating back to 2010 when the Tea Party lawmakers rushed into Congress and demanded immediate, sweeping change. Their hard-line ethos gave rise to Trump, the conservative transformation of the court, and the no-holds-barred rhetoric of infanticide and baby executions. And now, to this radical brief.
Stewart argued that the Mississippi law was not discriminatory toward women but instead promoted women’s health and “protects unborn girls and boys equally.” He cited science doubted by much of the medical establishment, referencing advancements that raised questions about whether the court should address a state’s interest in preventing “fetal pain.” The statement implied fetuses could feel pain before fifteen weeks—a position now inched up five weeks from the twenty weeks in the Texas law—and still one that no major medical organization had accepted for years. But most striking was Stewart’s framing that overturning Roe, one of the legal decisions most associated with the feminist movement, would be the true liberation of women. Roe said that an unwanted pregnancy could lead women to “a distressful life and future.” Casey expanded on that thinking, saying that Roe was needed for “women to participate equally in the economic and social life of the nation.” For decades, the antiabortion movement had countered those decisions with arguments about the immorality of abortion and the rights of the fetus.
Stewart took a radically different approach, imbuing his brief with the conservative vision of womanhood that Fitch elevated. The world had changed and women no longer needed abortion to provide equality, he said.
Women had advanced to the “highest echelons” of economic and social life, Stewart noted. Progress toward gender equality with laws prohibiting pregnancy discrimination and expanding paid leave meant a pregnancy would not hamper women’s economic and educational advancement, he wrote. Adoption and contraceptives were accessible, so an unwanted pregnancy was less likely, he argued. “States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date,” the brief concluded.
The reality was much more complicated. While women were likely to be more educated than their male partners, and female representation in public life had reached historic highs, American women had not reached parity with men. There was a robust body of data showing that becoming a mother had a significant—and negative—economic impact on women’s lives, particularly for low-income women, who faced the biggest barriers to abortion access. Some studies showed that both the employment rate and earnings of women dropped as much as thirty- five points when their children were born, compared with those of men. Childcare was unaffordable for nearly half of American families, and the country’s paid leave policies remained some of the weakest in the world. Despite laws banning pregnancy discrimination, it was rampant in the country’s biggest corporations. His argument also glossed over the fact of pregnancy itself, the physical and emotional costs of the nine-month period when a woman grew another being in their body—a state men never experience.
Stewart’s arguments about Roe and women’s advancement were bold. But they also echoed words from 1973. In their dissent to Roe, Justices Byron White and William Rehnquist cast the decision as “an exercise of raw judicial power” with no basis in “the language or history of the Constitution.” Stewart argued much the same.
“The national fever on abortion can break only when this court returns abortion policy to the states—where agreement is more common, compromise is often possible and disagreement can be resolved at the ballot box,” he wrote.
If there was a “national fever” over abortion rights, it wasn’t one that had infected a majority of Americans, who thought the issue of Roe had been settled long ago. But it had infected key justices on the court. And for now, at least, they were the only votes that mattered.
A SENSE OF resoluteness swept over Nancy Northup of the Center for Reproductive Rights as she read Stewart’s argument. Finally, there was clarity. For the Pink House in Mississippi, and for clinics across the country, her lawyers had fought restriction after restriction over the past decade. The drumbeat of incremental litigation was so ever present that it faded into background noise, making it hard to convince people that the antiabortion forces were gaining tremendous ground. But now, there could be no more confusion over what was at stake. Stewart made the true target clear. Roe. The most foundational abortion right. It would come down to Stewart’s argument versus the ones Northup’s lawyers at the Center would make.
Mississippi’s new brief left her team with a decision to make, the exact inverse of the choice made by Stewart and ADF. In their response to Stewart, Northup and her lawyers could offer the court an off-ramp, a way to avoid the thorny question of Roe. If they gave the court an option to uphold the law and avoid fully striking down Roe, they could potentially save the right to an abortion before fifteen weeks—when more than 90 percent of abortions occurred—at least for a while, until the next case reached the Supreme Court.
But Northup did not see a path for compromise. She knew that the fifteen-week cutoff was arbitrary, with no basis in medicine or the law. Though Northup and her lawyers didn’t know the particulars of ADF’s plans, they realized the line was a litigation strategy.
Even though the original decision skirted the issue, to Northup and her team, Roe wasn’t an abstract legal question of whether a right was explicitly mentioned in the Constitution. The precedent was about whether women, just as men, had control over their bodies. To them, Roe was about whether women had a constitutional protection of liberty and equality.
As a result, the center’s response to directly defend Roe was a no-brainer, at least to Northup. They could not argue for a fifteen-week standard that had no basis in medical reality or in how women experienced pregnancy, childbirth, and their economic lives. Besides, Northup believed that the only justice remotely inclined toward a compromise that would uphold the fifteen-week ban but keep Roe was John Roberts, an institutionalist who was perceived to be uneasy about upending nearly a half-century-old legal precedent. If another justice—maybe Alito or Thomas—wanted to rally the conservative wing around the idea of overturning Roe, he could try to do so without the center suggesting it. Why set up a loss before you actually lost? Northup thought.
“There are no half-measures here,” the center wrote in its brief. “Each of the State’s purported alternatives would upend the balance struck in Casey and ultimately extinguish ‘the woman’s liberty to determine whether to carry her pregnancy to full term.’”
Citing a barrage of studies, the center’s brief argued that women who are denied the ability to end a pregnancy face greater health risks and lost education and career opportunities. Those women are more likely to experience domestic violence and economic insecurity, and to raise their children in poverty. “The State’s suggestion that gains in women’s status somehow support taking away their right to make basic decisions about their lives and their bodies is nonsensical,” it said.
Roe couldn’t be outdated, they argued, because women plan their professional and personal lives knowing the right to an abortion exists, even if they never exercise it. Maybe that means trying for another child, even if the pregnancy could be risky, or being sexually active knowing that if a condom breaks, there is a backstop to having to stay pregnant. After two generations, women had come to depend on the right to a legal abortion. The passing decades had only made Roe “further cemented as critical to gender equality,” the center’s lawyers wrote.
“Accepting Mississippi’s request to abandon the viability line would turn back the clock for generations who have never known what it means to be without the fundamental right to make the decision whether to continue a pregnancy,” they wrote. “Any answer to the question presented other than a categorical ‘yes’ would shatter the understanding women have held close for decades about their bodies, their futures, and their equal right to liberty.”
And just like Mississippi, though in slightly smaller numbers, the center had dozens of amicus briefs filed to the court that supported its arguments. The American College of Obstetricians and Gynecologists and other prominent medical organizations wrote that the fifteen-week ban had no grounding in medicine or science. Childbirth “they wrote” was far riskier than an abortion. “Risk of death associated with childbirth is accordingly approximately 14 times higher than any risk of death from an abortion,” they wrote. Seventy-three women’s rights organizations, led by the National Women’s Law Center, argued that abortion was crucial to personal freedom and economic advancement—particularly in Mississippi, where women made up more than 71 percent of low-wage workers. Reproductive justice law scholars, racial justice groups, and economists pointed to the discriminatory nature of the ban, which would disproportionately affect low-income women and women of color.
More than 235 members of Congress and twenty-two states signed on to the center’s effort, as did organizations of female lawyers and more than five hundred female athletes, who provided firsthand testimony arguing that without a constitutional right to abortion, “women’s participation in athletics would suffer.” The Biden administration wrote its own brief and asked the court if its solicitor general, Elizabeth Prelogar, could argue alongside the clinic. The effort amounted to the full force of liberal America dismissing Mississippi’s conservative vision of gender progress.
This case, Northup was certain, was the final fight. If Stewart won, Roe would fall. A victory by Mississippi could make abortion illegal in about half the country. At least thirteen states already had trigger bans on the books, making them certain to move quickly to ban abortion, with very limited exceptions. And another thirteen states were likely to follow quickly with their own restrictions.
The court set oral arguments for December 1. One side represented a minority of Americans, the other mainstream public opinion. They would face off as equals before the justices. The clock started to tick.