Every Monday night, for weeks that spring, Marjorie Dannenfelser invited a famous ally to pray with her supporters for the outcome of the Dobbs case—Mike Pence, Lynn Fitch, David Daleiden of the Planned Parenthood videos, and others.
On the evening of May 2, she was sitting in her car, leading the weekly prayer call. The guest was Frank Pavone, leader of Priests for Life, an incendiary Catholic priest and religious adviser to Donald Trump who, in the 2016 campaign, live streamed an event in which he placed an aborted fetus on what appeared to be an altar. (Pope Francis would later remove him from the priesthood, citing “blasphemous communication.”)
The prayer calls were a reminder that for so many in the antiabortion movement, the battle was about more than just politics. Spiritual forces were at work, Dannenfelser told participants. She said they were standing for good and against evil. “Each Supreme Court justice is under incredible pressure,” Dannenfelser said. “There is a hidden and visible assault on the part of the dark side. Let’s name him: the Devil.”
The ping of a notification on her phone interrupted her. She was slightly irritated. Her staff knew she was praying. She ignored it. It was late and most of Washington was powering down for the day. But another came. And another. Within minutes, she had dozens of missed texts.
She broke away to see what was happening. A news story had been published by Politico, an online publication best known for covering the minutiae of politics. It included an attachment, scanned and slightly crooked, titled “scotus-initial-draft.pdf.” It was a leaked draft of the Dobbs decision.
This sort of thing didn’t happen with the Supreme Court. It happened in Congress, the White House, even the Pentagon. But not at the highest court. A leak like this was extraordinary, shocking.
Dannenfelser had planned for all sorts of outcomes, but not this. She scanned the text. The Supreme Court had decided to overturn Roe v. Wade in its entirety, ending nearly half a century of American law. The words were there, printed in traditional Supreme Court font, for all to see. It was stamped in the top-right-hand corner with all the justices’ names and the date it was allegedly circulated, February 10, 2022, three months earlier. It was ninety-eight pages long.
Politico’s story didn’t just include the draft. It contained details about the court’s internal discussions. According to “a person familiar with the court’s deliberations,” five of the justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—had voted to overturn Roe in the conference held after oral arguments. The three liberal justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—were working on their dissents. It remained uncertain whether John Roberts would join the majority who were ready to end Roe and if he would write his own opinion, according to the article.
Dannenfelser dialed Leonard Leo. Whether this was real or fake, they needed a messaging strategy. Frantic calls, group text chains, and hastily scheduled Zoom strategy sessions spread like wildfire across the entire antiabortion network. It looked credible, everyone agreed. But there were so many questions. Was it timed to influence Roberts? But toward which outcome? Did the disclosure come from the left to outrage people? Did it come from the right, to try to lock in a justice? Justices could change their minds on a case up until the last minute.
Dannenfelser started texting and calling everyone she could think of—leaders, coalition partners, politicians—with the same message: Don’t say anything until the official ruling. “To say nothing is the most important thing you can do,” she said. “This is something that is going to last generations.” ADF issued the same set of marching orders: “Until the court rules, the court has not ruled,” Kristen Waggoner, the group’s president, said. Until they saw the final decision, they would not dare celebrate. The memory of what happened in 1992 with the Casey decision was still seared in the memories of so many in the movement: news reports revealed that Justice Anthony Kennedy had flipped his vote, leading to a result that affirmed Roe instead of overturning it. That formative year, the one also dubbed the year of the Democratic women, was what prompted Dannenfelser and so many others to devote their lives to this cause in the first place. Anything could happen behind the court’s closed doors. All she could do was be ready.
Dannenfelser had spent months organizing supporters and allies for the decision to come in late June, when the court’s biggest rulings typically were released. Like Nancy Northup, she was convinced after oral arguments that the justices would rule in favor of the antiabortion movement. That spring, Dannenfelser had taped videos in front of the Supreme Court to distribute on social media after the decision came—one for if the court upheld the Mississippi law and another for a complete reversal of Roe. There was no pretaped video for the court completely ruling against her. It just didn’t seem likely.
For months, she had organized meetings with nearly every Republican governor, senators and their staff, and dozens of representatives. She had contacted everyone she suspected might run for president, more than a dozen state attorneys general, Senate Republican leader Mitch McConnell, and the head of the Republican National Committee. Dannenfelser urged a comprehensive Republican communications strategy and made a mock-debate video training for members on how to talk about Dobbs: they should focus on the humanity of the child and note that the decision was democratic, restoring the right of the people to make laws.
Eliminating Roe had been a central goal of her movement, but the ultimate goal was to end abortion. Dannenfelser also needed to teach state Republican attorneys general about the process for moving trigger bans and other restrictions quickly forward in conservative states.
Her team worried about the other half of the country, places like New York, California, Illinois, and other liberal states that were taking steps to expand abortion access in anticipation of the ruling. So they partnered with Chris Christie of New Jersey, a longtime ally, who joined Dannenfelser on calls with governors from more moderate states to share how he navigated the issue as a “pro-life governor” in a liberal state. But to stop abortion in those places, their movement would need to go further than just the right words. They would need a national ban.
In April, Dannenfelser and her allies made the rounds of the Capitol repeatedly, pushing for federal legislation that would ban abortion across the entire country. In a meeting with the Republican Study Committee, the largest conservative bloc in the caucus, she discussed the options of both a fifteen-week federal ban and a six-week one. Others in the coalition, like Kristan Hawkins of Students for Life, pushed for the six-week ban. But Dannenfelser saw the goal as long-term, to build support for such bans over time, so that if Republicans ever won a filibuster-proof Senate majority, they could pass it. For now, she argued that a fifteen-week federal ban would allow Republican states like Texas and Oklahoma to keep more aggressive limits, while also setting a baseline in blue states like California, New York, and Illinois. Unlike bans earlier in pregnancy, polling showed a majority of voters supported restrictions around the start of the second trimester. Plus, it was five weeks earlier than the twenty-week bans passed by the House since 2013, which did not become law.
In a private call with donors after one such meeting on Capitol Hill in late April, Dannenfelser and her top political strategist, Frank Cannon, urged their staunchest supporters to get ready for the fights to come. In the coming days, “the prolife movement of the last fifty years ceases to exist,” and a state by state battle will replace it, Cannon said. “Those fights will begin immediately, a lot of them will take years to play out, they will be intense from the very beginning.”
Dannenfelser pointed donors to an editorial recently published in The Wall Street Journal. The piece, just 825 words, was easy to miss and went largely unnoticed, even among official Washington. But buried midway into the article was an eyebrow-raising piece of analysis.
The editorial said that five justices—Kavanaugh, Barrett, Thomas, Gorsuch, and Alito—seemed likely to vote to overturn Roe and Casey. But, it implied, Roberts could be trying to persuade another justice to adopt his compromise position of upholding the fifteen-week law and leaving Roe untouched. If he failed, the editorial speculated that Alito would draft the opinion eliminating Roe. “He may be trying to turn another Justice now,” the editorial said of Roberts. “We hope he doesn’t succeed—for the good of the Court and the country.”
While couched in speculative language—“our guess,” wrote the author—it was an odd comment. Deliberations inside the justices’ chambers were notoriously secret. They were not, generally speaking, printed in the pages of major newspapers. The information seemed like it was from an authoritative source, Dannenfelser told her donors. “They communicated what we think we’ve been hearing as well,” she said of the piece.
Now, four days after that small bit of analysis buried in the editorial pages, here was what appeared to be a credible court document. An opinion overturning Roe, authored by Alito—just as the editorial suggested.
Opinions were closely held until they were ready to be released to the public, as were details of the judges’ private conferences and negotiations over cases. That sense of omertà was the reason almost no one, even Scott Stewart and Northup, knew for certain why the court took so many months to agree to hear the Mississippi case. The court depended on that secrecy to maintain a sense of judicial fairness, an image of a temple of discretion unswayed by the political fervors of the moment or the personal beliefs of the justices. A leak like the one in Politico—the disclosure of an entire opinion—was an unthinkable breach of trust.
Yet that image of the court’s impenetrability wasn’t completely accurate. There had been leaks before. And the most detailed, at least in the modern era, had happened during deliberations in another contentious abortion case: Roe.
On July 4, 1972, six months before the decision was released, The Washington Post published a story about the court’s internal deliberations. It included details of a memo from Justice William O. Douglas to his colleagues describing what he saw as Chief Justice Warren Burger’s improper power plays to try to delay a decision until President Richard Nixon could fill two vacancies on the court. The story was unusual—no byline, no named sources, and published on a national holiday—and it revealed a striking amount of detail about the court’s private negotiations, including the date of the conference where the case was discussed. It was certainly a leak from inside the court, perhaps even, historians later speculated, from Douglas himself.
After nearly one hundred interviews and months of forensics, an investigation commissioned by Roberts came up short, unable to identify the person who caused what the justices declared to be “a grave assault on the judicial process.” The question of who leaked the document was an irresistible one, but the more significant meaning could be found in the fact that it was leaked at all. The focus on the leaker served—once again—to obscure the power of abortion as a symbol, one so fundamental that it could shatter the court. Abortion was so much more than a medical procedure or even an electoral rallying cry. For so many in the debate, abortion stood for the bedrock values of America—what it meant to have the unalienable rights of life, liberty, and the pursuit of happiness. Both sides believed that a grave miscarriage of justice, and thus of the future life of the nation itself, was on the line, for different reasons.
The stakes were so great that they broke the democratic traditions of the last remaining branch of government where such norms still held significant sway. It was the power of abortion, and all it stood for, that changed how Americans saw the very legal foundation of their democracy. It was the case about abortion—not decisions on guns or immigration or the January 6 investigations—that prompted one of the “worst breaches of trust” in the court’s history, as the report from the Roberts investigation described the leak.
Americans’ faith in the court collapsed with shocking swiftness. Before Barrett was confirmed, in the fall of 2020, broad swaths of Americans—70 percent in one survey—said they had confidence in the court. In the days after the leak, registered voters swung to being evenly split on the question, and the decline grew over the coming weeks. Poll after poll showed that a clear majority no longer trusted the court. Opinions split by party. Immediately after the decision, 14 percent of Democrats and 37 percent of independents said they had confidence in the court; among Republicans, that figure was 71 percent.
The leaked decision over Roe transformed public perception of the court into that of an institution as partisan as nearly any other in American politics. Before the leak, the court largely stood apart, above the rough-and-tumble dysfunction of Congress and the White House. Afterward, the court was plunged into the political morass. In the months and years that followed, there would be investigations into the justices’ ethics and political associations, calls for a new ethics code and greater disclosure of their personal spending.
Thomas, whose acceptance of large gifts from rich conservative donors was suddenly under fresh examination, described the incident as a “kind of an infidelity” that destroyed the trust among the justices. In remarks to conservative thinkers and activists, he questioned how long such a Supreme Court could survive. “I wonder how long we’re going to have these institutions at the rate we’re undermining them,” he said. “And then I wonder when they’re gone or destabilized, what we’re going to have as a country.”
The court was the last sacred institution in American political life. And now, because of the power of Roe, it had become as broken as everything else.
WITH THE LEAK, the spell of denial shattered in an instant. Americans everywhere read the draft, texting it to friends with exclamation points and, depending on their ideological persuasion, expletives or prayers. The believability gap was blown wide open. For a decade, large swaths of Americans didn’t fully register the slow erosion of abortion rights, and they certainly did not know the extent of the antiabortion network that fought to create this moment. Now public opinion jolted with startling speed: within days, the number of Americans who identified as “pro-choice” jumped dramatically, rising six points to 55 percent—the highest Gallup had measured in nearly three decades.
Protests exploded on the steps of the Supreme Court and across the country. “I am angry!” shouted Senator Elizabeth Warren, standing on the steps of the court in a hot-pink blazer. “An extremist United States Supreme Court thinks they can impose their extremist views on all of the women of this country, and they are wrong.”
Outraged women cornered their elected representatives, flooding their offices with calls and messages. On a flight from Detroit to Washington, two strangers—both women who said they were Republican and “pro-life”—approached Representative Elissa Slotkin, Democrat of Michigan, with their fears about a trigger law banning abortion in their state. Slotkin, as shell-shocked as her constituents, started calling everyone she knew with a connection to the abortion-rights movement asking how she should proceed. A former CIA officer, she was used to conducting constant security assessments of future possibilities. Where was the plan for this “black swan event”? she wondered. Would there be a press conference in front of the Capitol? Several days of marches?
“In fifty years of Roe being on the books as legal precedent, we had never codified it in law,” she fumed. “The other side for fifty years has had a legal strategy—where is our fifty-year strategy?”
The answer would infuriate Slotkin. The three major abortion-rights organizations had mobilized, but broader political efforts remained fairly discreet. There was no party-wide strategy to capitalize on the moment. No organization in place for several days of marches, a messaging push, or new legislation responding to the crisis expected to come.
The legal arm of the abortion-rights movement—Nancy Northup, Brigitte Amiri, the ACLU lawyer who defended Jane Doe, and their allies—had spent months preparing a legal strategy to challenge trigger bans in court. Planned Parenthood and other abortion providers had begun shifting resources to accommodate patients, opening new facilities like a regional logistics center in southern Illinois, a centralized call center to help organize travel and lodging help for women traveling to the state for abortions. In March, billionaire philanthropist MacKenzie Scott made the largest ever single donation to Planned Parenthood, giving $275 million to be divided between the national office and twenty-one regional affiliate organizations. McGill Johnson earmarked the national funds to tackle racial equity issues. The regional affiliates devoted their money to improving the medical services in their clinics.
Some Democrats in Washington, like Diana DeGette and others at the party’s campaign committees, had met to strategize about the possible electoral impact on their midterm candidates. But for the most part, they were unprepared.
After months of disregarding Northup’s warnings, Democrats scrambled to respond. The day after the leak, staffers for Harris tore up the top of her planned remarks for a speech to EMILYs List that evening, remaking her words to fit the reality that the country suddenly saw. “Now we enter a new phase,” she told a ballroom of supporters in Washington. “There is nothing hypothetical about this moment.”
At the Capitol, Senate Democrats rushed to put together a meeting. Prominent Democratic senators could not remember any time in the past decade when their full caucus gathered to exclusively discuss the issue of abortion rights. Democrats, Chuck Schumer told abortion-rights advocates in a separate meeting, needed to do three things—“vote, vote, vote.” On social media, some liberals scoffed at the party’s plan to just “vote harder.” Democrats controlled the House, Senate, and the White House; why couldn’t they do something, they asked? Why was the answer, yet again, to elect Democrats? That hadn’t worked to preserve Roe.
The Department of Homeland Security warned of rising threats from both sides. In Wyoming, a masked woman set fire to an abortion clinic the month before it was scheduled to open. Vandals spray-painted antiabortion pregnancy centers from Florida to Michigan. Protesters disrupted services at the evangelical Lakewood Church in Houston, stripping down to their underwear and screaming, “My body, my choice!” with expletives. Even the justices were not immune: Protesters gathered weekly in front of Alito’s and Thomas’s homes, chanting and shouting in their quiet suburban neighborhoods. A few weeks after a security fence was erected around the court, an armed man was arrested near Kavanaugh’s house after saying he wanted to kill him over Roe.
Dannenfelser urged Republicans to shy away from openly discussing the full impact of what was to come. Establishment Republicans largely followed her advice. “You need—it seems to me, excuse the lecture—to concentrate on what the news is today,” McConnell told reporters. “Not a leaked draft but the fact that the draft was leaked.” Donald Trump, whose administration appointed the crucial votes, stayed largely silent, making only passing reference to abortion at his first rally after the leak.
But it was hard to maintain any message discipline across the party. Where longtime antiabortion movement leaders saw political danger, the post-Roe generation saw new possibilities. Mississippi’s fifteen-week law and other similar limits “served their purpose in leading us to where we are today,” wrote Hawkins, the head of Students for Life, in a letter to Republican members of Congress. But now it was time to go further, she argued.
The post-Roe activists wanted bills that would outlaw abortion starting at six weeks, criminalize some forms of contraception, and ban the distribution of abortion pills. “We press on toward the goal to win the prize, leaving old legal tools behind,” wrote Hawkins, alluding to words from the apostle Paul in the Bible. “We ask you to join us in ensuring that the strongest measures possible are employed to achieve life, liberty, and the pursuit of happiness for every American, from conception to natural death.”
Abortion abolitionist campaigns spread across the country. Days after the leak, the state legislature in Louisiana advanced a proposal to classify abortion as murder, with commensurate punishments for women who have the procedure. Similar abolitionist efforts were pushed in Arizona, Texas, and Oklahoma. They reflected Trump’s 2016 argument that women who had abortions should receive “some form of punishment,” which he quickly walked back after a sharp response from women leaders in the antiabortion movement. Now, unlike the careful effort to put women at the front of the movement, these campaigns were led largely by men.
The rightward shift meant that for Republican politicians, simply declaring oneself “pro-life” and opposing Roe was no longer enough. To win primary races and prove their conservative credentials with the rising fringe of their party, Republicans embraced six-week bans with no exceptions for rape, incest, or the life of the mother. These hard-right stances would have been considered disqualifying just ten years earlier. And as Texas had recently demonstrated, they still remained deeply unpopular with a majority of voters.
But this new moment also showed that Todd Akin, the congressman who torpedoed his 2012 Senate campaign, had perhaps come just a decade too early. Instead of being a relic of the past, he had actually been a harbinger of the future, one that the mainstream America of his day did not see coming. The Republican candidates of 2022 were going far beyond Akin’s comments about “legitimate rape” by embracing total abortion bans with no exceptions and paying no price with their party. Akin did not live to see the new world that he foretold. He died of cancer two months before the oral arguments in Dobbs. Until the end, he maintained that the mistake was not his comment but his apology.