“We have a plan to make Roe irrelevant or completely reverse it.”
That was the message that Kevin Theriot, an attorney with the conservative Christian law firm Alliance Defending Freedom, delivered to the attendees of the 2018 Evangelicals for Life conference, according to a Right Wing Watch report at the time.
It was January 20, 2018, two days before the 45th anniversary of the Roe v. Wade decision, and as they had done for years, anti-choice protesters gathered for the March for Life rally to protest the legal ruling that gave pregnant people some modicum of control—and, in some cases, the illusion of control—over their own bodies.
Theriot, vice president of ADF’s Center for Life, and Denise Burke, ADF senior counsel, spoke to attendees of the Evangelicals for Life conference about the organization’s strategy for overturning Roe v. Wade and passing state-level laws banning abortion, according to Right Wing Watch’s Peter Montgomery. (The Southern Poverty Law Center labeled ADF an anti-LGBTQ hate group in 2016 because the group has supported criminalizing and imprisoning LGBTQ people in the United States and has supported European laws that required forced sterilization of transgender people.)
“We have a strategic plan, that is a comprehensive, start-to-finish, from when we’re considering legislation all the way up to the Supreme Court, to challenge Roe,” Burke reportedly told a group of conference attendees. “And we are focusing right now on two specific types of abortion bans. … So we’re not looking at regulation, we’re actually looking to enact abortion bans.”
One of those abortion ban? A 15-week ban, just like the one at issue in Dobbs v. Jackson Women’s Health Organization.
In fact, Mississippi was the first state that ADF trained its sights on.
Burke went on to lay out ADF’s strategy: Pass laws banning abortion at 15 weeks, which would essentially limit abortion to a week after the first trimester.
“Once we get these first-trimester limitations in place, we’re going to go for a complete ban on abortion, except to save the lives of the mother,” Burke told the conference attendees.
Essentially, Burke said, ADF planned to use the 15-week bans as bait, according to Right Wing Watch. Burke also reportedly said 20-week bans hadn’t been challenged in court because abortion rights advocates fear a bad decision. In reality, Jackson Women’s Health Organization is Mississippi’s sole abortion clinic, and no abortions are performed there past 16 weeks. As such, there would be no reason to challenge a 20-week ban in Mississippi. The same is the case in multiple states that have passed 20-week bans. Moreover, abortion providers have won every case challenging a pre-viability abortion ban, whether it’s a six-week ban, a 12-week ban, or a 20-week ban.
According to the Jackson Free Press, Burke then said:
“I can guarantee you that they will not be able to ignore a 15-week limitation, which is in essence limiting abortion to the first trimester. We’re kind of basically baiting them, ‘come on, fight us on turf that we have already set up and established.’”
And, after that, chillingly:
“I am happy to say the first 15-week limitation based on our model language was just introduced in the state of Mississippi this week.”
Mississippi Gov. Phil Bryant would go on to sign that 15-week ban into law two months later. And the lawsuit that the Supreme Court just agreed to hear would be filed immediately after that.
That was three-and-a-half years ago. And in a little over a year from now, ADF’s professed strategy to make Roe irrelevant will probably have succeeded.
The basic rule laid down in Roe and reiterated in Planned Parenthood v. Casey is simple: Pre-viability abortion bans are unconstitutional.
A fetus doesn’t become viable until approximately the 24th week, and even then it’s an individual determination specific to each pregnancy. The point at which one pregnancy is viable isn’t the same for another pregnancy.
Everyone agrees that no fetus is viable at 15 weeks. Even Mississippi’s attorneys conceded that no fetus is viable at 15 weeks. Mississippi’s law is, under 48 years of precedent, unconstitutional. Period. That’s why the district court struck it down. And that’s why even the extremely conservative Fifth Circuit Court of Appeals struck it down. That’s also why not a single federal court has ever upheld a pre-viability gestational abortion ban in any state.
In March 2018, when Bryant signed Mississippi’s 15-week ban into law, I wrote that it was unconstitutional just like other gestational bans that states had tried and failed to enact. I pointed out that these pre-viability abortion bans are unconstitutional and would remain that way “unless President Trump is able to stack the Court with conservative judges.”
At the time, Neil Gorsuch had barely been on the bench for a year, Brett Kavanaugh had not yet begin to regale us with tales of doing keg stands with his buddies PJ and Squi, and I had not yet begun internally screaming about the fact that Amy Coney Barrett—who, in March 2018, had been a Seventh Circuit judge for less than six months—would be replacing Ruth Bader Ginsburg on the bench less than two-and-a-half years later.
Gorsuch had simply replaced Scalia as a conservative; meanwhile, Anthony Kennedy was still on the bench, and Ruth Bader Ginsburg was alive. I was feeling pretty good about Roe.
But then came Brett Kavanaugh, who was handpicked by Trump to create a conservative majority that would overturn Roe. And after him, Amy Coney Barrett, who was not only picked to be part of that conservative majority, but also received speaking fees from ADF after she gave lectures for the Blackstone Legal Fellowship. (The Blackstone Fellowship is a summer intern program ADF runs; Barrett began speaking to fellows in 2011, right around the time that an avalance of abortion restrictions came rushing out of Republican-controlled state legislatures around the country.)
And it turns out that while ADF was developing model legislation—like Mississippi’s 15-week ban—and working with state attorneys general to defend anti-abortion legislation in places like Oklahoma, shadowy organizations like the Federalist Society were working to make sure there were justices in place who would be primed to take a case like Jackson Women’s Health and find a justification for upending abortion rights. Even though there’s absolutely no reason for the high court to take up a case challenging a pre-viability abortion ban because there’s no disagreement among the federal courts about the constitutionality of pre-viability abortion bans.
Over the next year, you’re going to hear a lot about Jackson Women’s Health, and it might be tempting to think that the fight over abortion at the Supreme Court is going to come down to constitutional analysis and good faith.
Jackson Women’s Health is the result of a plan set in motion by a powerful Christian legal advocacy group that Amy Coney Barrett has ties to. Anti-choice lawmakers and advocates will try to convince the nation—which overwhelmingly does not want Roe v. Wade to be overturned, by the way—that Roe v. Wade is bad law and that the Supreme Court must course-correct and send the abortion question back to the states, where anti-choice advocates are already working to disenfranchise Black voters in order to ensure that Republicans can capture the legislature and the governorships in as many states as possible so that they can begin systematically banning abortion.
The very fact that the Supreme Court decided to hear Jackson Women’s Health is unjust and based on a plan that ADF put into motion years ago—a plan that depends upon every actor in this conservative theater playing their part.
ADF has played its part. And if I were a betting woman, I’d bet that Kavanaugh and Barrett will play theirs.