The night before oral arguments at the Supreme Court, scheduled for December 1, Marjorie Dannenfelser introduced Mike Pence at an event at the National Press Club in Washington. Standing at a podium with a sign that said, LIFE IS A HUMAN RIGHT and that depicted a glowing spaceman-like fetus like the one on the Life magazine cover all those years ago, he ticked through all the movement’s talking points and his administration’s accomplishments.
All the speeches he’d given about abortion for decades culminated in this moment. It could be the beginning of the new nation Pence and his movement wanted to create. He asked the court to overturn Roe.
“The question before the court, and before the American people, is no less than this: What kind of nation do we want to be?” he said. “This is about saving the lives of millions of children yet unborn. But make no mistake about it: This is also about justice and the future of this nation.”
Early the next morning, Scott Stewart knotted his lucky tie—blue with white dots, the one he wore to argue cases. He headed up the steep steps of the Supreme Court alongside Lynn Fitch, in her blue suit, past the protesters jostling with their shouts and bullhorns. Normally, people would have waited in line for hours, even overnight, for a chance to get a seat inside for such an important case. But the COVID-19 pandemic meant that only the lawyers, clerks, court personnel, and the media would be allowed in.
A woman in a mask and a green winter hat—the color of the abortion-rights cause—held a giant piece of cardboard with big black letters, “WHERE DOES THIS END?” Antiabortion activists came with Bibles and crosses to proclaim a “post-Roe generation.” They carried signs too: “Abortion Is Murder,” with bloody red handprints. “Civil Rights Begin in the Womb.” Police kept watch at the barriers and guarded the steps.
Nancy Northup stood on the steps of the court with Shannon Brewer, the director of the Pink House, before dark teal banners proclaiming, “Abortion Is Essential.” The Center for Reproductive Rights’ lawyers had come to the court three times over the past six years to argue for abortion rights. But this fourth trip was different, thought Northup as she prepared to speak.
To the abortion-rights activists, the antiabortion crowd seemed chaotic, rougher than normal. “They’ve got the court at their back, and it’s a different scene than it was even just a couple years ago,” reflected Amy Hagstrom Miller, the founder of Whole Woman’s Health. “This is about controlling women. It’s about power.”
This could be the battle that could mark the end of the era that defined her life, Northup knew. “We are here to win,” she told the crowd, who were gathered for a rally organized by Liberate Abortion, a new coalition of more than one hundred abortion-rights groups. Yet, despite her conviction, Northup hinted that a different future could be coming. “I pledge to you, that no matter the outcome of this court case, the Center for Reproductive Rights will use every legal lever to make sure that abortion access is protected for all,” she said.
People across America put in earbuds. Before the pandemic, the court did not allow cases to be recorded or streamed. But the crisis forced a technological change. Audio of the arguments would be live streamed, and the entire nation could listen. Waiting inside the lawyers’ lounge before walking into the courtroom, Stewart told Fitch he needed to pace. He’d gone over his argument again and again, in eight practice sessions with legal allies of the movement. He knew many in the circle of conservative lawyers who followed the Supreme Court still worried he was going too far. In the final weeks, allies had pushed him to give the justices an off-ramp, even just for ten seconds of his two-minute opening statement. Days ago, he had walked the streets of Northwest Washington, wondering if the experts were right.
Then it was 10:00 a.m. The gavel sounded. Stewart took off his mask.
A half century earlier, the Texas assistant attorney general opened his argument in Roe with a line that would go down as one of the worst wisecracks in legal history. “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word,” said Jay Floyd, referring to Sarah Weddington and Linda Coffee, the lawyers who won the case for Norma McCorvey—the woman who became widely known as Jane Roe.
But Weddington and Coffee didn’t get the last word. Stewart was standing in the same courtroom, arguing against that old decision. As in Roe, two women were the state’s opposing counsel: the US solicitor general, Elizabeth Prelogar, and Julie Rikelman, the center’s senior litigator, who argued and won the case striking down Louisiana’s abortion restriction the previous year. But this time a woman also sat on the anti-Roe side: Fitch. The room was somber and tense. No one was joking.
“Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart declared, standing behind the wooden lectern. “They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law.”
Stewart gave no off-ramp. It was all or nothing. He spoke directly to the nine justices before him. There were two whom both sides were watching most of all: Roberts, the institutionalist, and Kavanaugh, the wild card. The others seemed like sure bets. Justices Alito, Thomas, Gorsuch, and Barrett likely wanted to overturn Roe. Sonia Sotomayor, Stephen Breyer, and Elena Kagan would defend it. If Kavanaugh and Roberts seemed to embrace a narrower reading of the case centered on the fifteen-week law, Roe might stand. If not, Stewart and Mississippi would likely be heading toward victory.
Thomas jumped in to pose the first question to Stewart, one of his “kids,” as he called his former clerks. He wondered what Stewart would suggest if the court wanted to uphold Roe and Casey. Stewart didn’t stumble: The best course of action would be to overturn the rulings. But short of that would be to functionally gut Roe without completely overruling the decision by eliminating any viability standard—a decision that would allow restrictions at any point in pregnancy.
Sotomayor pushed back. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she said, wondering when the “life of a woman and putting her at risk enter the calculus.” Fifteen justices over thirty years had upheld Roe and Casey, she argued. This matter was only before the court because the balance shifted with the new justices. What message would that send?
Listening in a conference room to the live stream of the arguments with her team of lawyers, Northup was ready when Rikelman came up after Stewart to make her argument. The center’s goal was to bring women’s voices into the room and ensure that the real-life impact of taking away a right would be felt amid the abstract discussions of legal theory. Rikelman did not mince words. The ban was “flatly unconstitutional” under the precedents of Roe and Casey, she said. “For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty,” she said. “Eliminating or reducing the right to abortion will propel women backwards.”
Some listening that day noted a shift in the court’s usual restraint. The oral arguments offered plenty of hints of how the court might rule. Alito’s words rang through the air when he cited the language in the center’s brief that there were “no half measures,” telling Rikelman that “the only real options we have” are to reaffirm Roe or overrule it.
Listeners got subtle—and not-so-subtle—glimpses into the thinking of Trump’s picks. Kavanaugh wanted Rikelman to respond to the idea that “because the Constitution is neutral”—in other words, that the document doesn’t specifically mention abortion—“that this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life.” His words echoed the originalist position championed by Leo. Rikelman quickly disputed his contention, arguing that abortion was part of the Constitution’s “guarantee of liberty.” But the question itself hinted that he might not be such a wild card.
Rikelman doubled down, arguing that outlawing abortion would force women to take on the burden of parenthood. It was an argument that other new members of the court were quick to dispute. “Why don’t the safe haven laws take care of that problem?” Barrett wondered, referencing laws that allow women to legally and anonymously relinquish their babies at fire stations and other public places. The inquiry shocked and outraged abortion-rights supporters. It was a fantasy to believe that adoption eliminated the price of pregnancy itself—the economic costs, physical toll, and emotional burden, they argued. But it was a line of reasoning that was common in antiabortion circles, including the world Barrett came from at Notre Dame.
Rikelman shot back with statistics. It was seventy-five times more dangerous for women to give birth in Mississippi than have an abortion before viability, she said, risks that disproportionately impacted women of color. “Pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work,” she said.
As the argument wound to a close, the chief justice offered his views. “The thing that is at issue before us today is fifteen weeks,” said Roberts. His words seemed to embrace a compromise.
But a ruling that upheld fifteen weeks would be no compromise at all. Such a decision would gut Roe without saying the words by eliminating the viability line that was the heart of the legal precedent.
But it could, Northup realized, offer a more politically palatable argument for conservatives to make. The public barely believed Roe was at risk. Explaining that the decision was functionally gone without the words of the court putting it plainly for America to see would be difficult for abortion-rights advocates, Northup knew. The delusion of the security of Roe was so entrenched in the thinking of many Americans that it could very well continue. Still, it wasn’t clear that Roberts would be able to muster a majority behind a compromise approach that would leave any piece of Roe standing.
Then it was finished, 114 minutes after it began. The justices filed off the bench. Stewart, Rikelman, Fitch, and the other lawyers exchanged polite handshakes. The audio stream went silent.
THE WHOLE THING felt “chilling,” thought Cecile Richards. Barrett’s remarks, in particular, were like hearing the shots of an invading army. “We just live in a completely different world than the world that she sees,” she said. “And she’s a young justice and she’s going to be on there for a long, long time.” Richards hadn’t been surprised when she saw the antiabortion movement’s arguments on display in the Texas statehouse with SB 8 or the Mississippi legislature with the fifteen-week ban. But to see them at the Supreme Court felt like a gut punch, an erasure of the vision of gender equity her mother fought for all those decades ago.
“I always sort of held out hope that there was going to be an adult in the room, not necessarily the Supreme Court, but at least within the Republican Party, that would say, ‘Look, I understand that’s been our rhetoric for all these years, but in fact, that’s going too far,’” she said. Now, after oral arguments, she was no longer hopeful.
Standing in her kitchen in Texas, listening as she unpacked boxes in her new condo, Wendy Davis began to sob. In that moment, she realized that what had seemed impossible when she stood for all those hours in her pink sneakers was about to be the new reality. “I always thought the Supreme Court was going to save us,” she said.
That evening, leaders of the pro-life movement gathered at the JW Marriott in Washington for an invite-only banquet sponsored by ADF. Everyone seemed to be there, and ADF gave out party favors of small wooden plaques, depicting a pregnant woman leaning against a Supreme Court column. The mood was celebratory even though the decision wouldn’t come for another six months, as the justices’ words seemed to confirm that Stewart’s approach was not the misstep ADF initially worried it might be. There was Marjorie Dannenfelser of SBA, David Daleiden, who ran the Planned Parenthood video operation and Mary Taylor from Pro-Life Utah, who had wanted a fifteen-week ban instead of eighteen. There were authors of the amicus briefs, and Becky Currie, who believed she had developed the idea of the fifteen-week law in Mississippi. And for all the network’s strength, it was strikingly diffuse. Many participants knew only the small part they played, and did not know how the whole fit together. Currie met Stewart briefly that night for the first time. “He couldn’t pick me out of a crowd,” she said.
On the stage, Lynn Fitch, Scott Stewart, and Erin Hawley sat proudly as they described how they had gotten to this moment. “First of all, to God be the glory,” Fitch began.
“We all prayed, worked so hard for this day. It all came together because everyone here, everyone that’s been involved across our country, we’re believers, and we knew this day would come,” she said. “God selected this case. He was ready. The justices were ready to hear what we were all going to be talking about.”
For those listening, the people around them in that ballroom and all they accomplished represented a vision of the kingdom of God coming on Earth, as Jesus’s prayer taught in the Gospels. They were also a living example of religion’s powerful function as a conservative force: It conserves. Across time, religion maintains a way of life, tradition, culture, and power, for better or worse.
Their work offered a vision of what a modern Christian empire looked like. It did not involve violent crusaders or declaring an official state religion. It was not clerics instituting a theocracy. The antiabortion movement had used the existing system to define the Constitution the way it saw fit. A right was not being taken away from women, the movement argued, because it never should have existed in the first place.
If they won, abortion rights would no longer be constitutionally protected at the federal level. Conservatives would have clarified the kind of Constitution they believed America had, different as it might seem from the one the court saw back in 1973. As a foundation of American democracy, the Constitution is the guiding document of the country’s shared values, and of who is included and excluded in those rights. In a fundamental way, the Supreme Court’s interpretation of what that means would declare who America was in 2022, even if a majority of the nation disagreed.
ADF’s strategy on Dobbs reflected how it believed it could reshape America. There’s a saying that law is downstream from culture, said Greg Scott, a longtime communications strategist for ADF, explaining the idea that a cause gains popular support first, and then the law formalizes those beliefs. “I actually reject that,” he said. “We are in this feedback loop and this ecosystem where frequently that is true. But then at other times, the law does drive culture.”
And now, amid the applause, ADF leaders looked ahead. By their internal calculations, if the court overturned Roe and the issue was sent back to the states, thirty-one states would or could soon ban abortion. That meant they needed just seven more states to reach eighty-eight: the number required to pass an amendment to the Constitution and ban abortion entirely.
But even that was just the beginning. ADF’s ultimate goal was sweeping cultural change across America to preserve the values of conservative Christians. They were, after all, a “religious ministry,” not just a law firm, as Kristen Waggoner said. Ending abortion was the first target, but ADF had already begun planning for four more.
According to a strategy document, ADF leaders set out to achieve what they called “generational wins,” victories that would change the law and culture of America for an entire generation. After each win, ADF would work to fortify that change so it would last for generations to come.
ADF lawyers would work to reverse the Supreme Court’s decision in Employment Division v. Smith, to “fully protect the free exercise of religion,” the strategy document explained. That decision, authored by Antonin Scalia, ruled that religious beliefs did not excuse disobeying valid laws. The issues around the case had particularly inspired Stewart in law school. They would file lawsuits to build a legal case against it.
They would pursue litigation to enforce free speech rights on college campuses. They would push legislation to protect the freedom of association there as well, to eventually overturn a decision that Ginsburg had authored called Christian Legal Society v. Martinez. The ruling had allowed a public university not to recognize a Christian student group that excluded gay students. Alito called the decision a “serious setback for freedom of expression.”
They would target LGBTQ rights and protections, and “stop efforts to elevate sexual orientation and gender identity to protected-class status in the law akin to race.” They would “work to restore an understanding of marriage, the family, and sexuality that reflects God’s creative order.”
And they wanted the court to strengthen parental rights over state authority by having the court revisit a case called Troxel v. Granville. ADF would work to pass state legislation, similar to its approach on abortion, effectively rolling back the expansion of transgender rights to prevent parents from “being coerced into consenting to life changing, ill-advised surgeries and procedures in the wake of gender dysphoria.”
It was an enormous agenda, one that not even everyone in the ballroom knew. And even that was just in the United States. ADF was also building an international arm to oppose abortion in European countries.
Onstage, Fitch beamed. The hundreds of faces looking back at her represented a core of their movement. Many believed there would have been no Dobbs without “a cultural swell in favor of protecting innocent unborn life, beginning in 1973,” as one ADF lawyer put it.
But that “cultural swell” was still a minority, and even more so than a decade ago. Just 8 percent of Americans wanted to ban abortion at conception with no exceptions, half of the 16 percent who said the same in 2012. Another 29 percent believed it should be illegal in “most” cases. The reality was that there would have been no Dobbs without a coordinated, sniper-like strategy to take down Roe. A mission that went against the wishes of a majority of Americans.
“This has been certainly a God thing,” Fitch told the audience. “We’ve all been called. We’ve all been waiting.”
Now, she said, they could not stop. “We’ve got tough times ahead, but we’re ready,” she said. “Everyone in this room, you’re ready.”