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The Untold Story of the Network That Took Down Roe v. Wade
A conservative Christian coalition’s plan to end the federal right to abortion began just days after Trump’s 2016 election.
It happened almost by accident, over cocktails.
Exactly the kind of accident that #Leonard #Leo intended to happen at his Federalist Society’s annual conference
— a three-day gathering of the conservative tribe and a strategy session for right-wing lawyers, officials and judges
that drew both big names and those who had lower profiles but were no less ambitious.
Nine days after Donald Trump won the 2016 election, the halls of the Mayflower Hotel, just blocks from the White House, were adorned with twinkling Christmas lights and abuzz with the possibilities of a future that had changed overnight.
Hillary Clinton, the woman the anti-abortion movement feared more than perhaps anyone, had failed to win the presidency.
And Leo and the conservative legal movement that he worked for years to create were about to reclaim power.
With that power would come the chance to do what seemed unthinkable until this moment: 
strategize to take down Roe v. Wade.
For more than 40 years, a passionate band of conservative and mostly Christian activists tried to find ways to undermine the 1973 Supreme Court ruling that guaranteed a constitutional right to abortion and revolutionized America.
But they had been losing. The country appeared to be moving away from them,
increasingly secular and increasingly liberal on sexual matters.
The anti-abortion movement lacked the critical mass needed in Washington and the control of courts to end federal abortion rights.
But now, with Trump, who promised to name “pro-life judges,” in the White House, there was a new vista before them.
Leo, the force behind this network, arrived at the Mayflower after spending the day at Trump Tower in New York.
He met with the president-elect and his top aides about turning the list of Supreme Court justice candidates that Leo curated into legal reality.
Republicans in the Senate had taken a risk by refusing to hold hearings to fill the seat left open by the death of Justice Antonin Scalia toward the end of Barack Obama’s presidency.
Now, with Trump positioned to nominate one of its own, Leo’s movement stood on the verge of an enormous triumph, with a court that would once again be dominated by Republican-appointed justices
— and those who were firmly on the side of restricting abortion.
Trump confirmed in the meeting that if someone was not on the list, that person would not be considered.
At the Mayflower, those on the list were
not just names on paper.
At least nine judges of Trump’s 21 possible Supreme Court nominees at the time were scheduled to speak,
and most of the other hopefuls attended at various points.
So did some of those who already held seats on the highest court.
Leo opened the conference by introducing his friend Justice Samuel A. #Alito Jr. to the ballroom, overflowing four deep in the balcony.
The mood was both exuberant and serious as the new power brokers considered the opportunities ahead.
So when it was time for cocktail hour, the young solicitor general of Wisconsin, Misha #Tseytlin, who had clerked for Justice Anthony M. #Kennedy, was surprised when he overheard someone say that Roe v. Wade would never be overturned.
There was no reason to think overturning Roe was impossible now, Tseytlin believed.
Republicans had the White House, an open Supreme Court seat and legislatures passing a flood of laws restricting abortion in states across the country.
If there really was no right to abortion in the Constitution, as many at the Mayflower believed, this was the time to prove it.
And Tseytlin had an idea of how to do just that.
The story of how an elite strike force of Christian lawyers, activists and politicians
methodically and secretly led the country down a path that defied the will of a majority of Americans,
who wanted abortion
to remain legal, has been hidden until now.
The ultimate aim of this behind-the-scenes conservative coalition,
which powered one of the most significant political resurgences the United States has ever seen,
went far beyond questions of when
— and if
— a pregnancy can be legally ended.
For them, the fall of Roe was not an end but a beginning in their effort to make all abortion illegal
and, in effect, roll back the sexual revolution.
It was not only a political battle but a spiritual mission,
rooted in their Christian faith and their belief that they were fighting for the highest moral stakes of the modern age.
Their opponents didn’t see what was coming until it was far too late.
After so many decades of taking Roe for granted, supporters of abortion rights had grown dangerously complacent and disorganized in ways that made them slow to appreciate the severity of the threat.
This investigation is built on more than 350 interviews with people who had knowledge of these events,
including elected officials, lawyers, activists, doctors and ordinary people whose lives were changed by the fall of Roe.
The reporting spanned 16 states and Washington, from statehouses to the White House, and a review of previously unreported documents.
In the gilded halls of the Mayflower, amid the throngs of lawyers,
Misha #Tseytlin was thinking about how to get the Supreme Court to take an abortion case.
A rarity within the movement, he was not particularly religious;
his family had left the former Soviet Union as Jewish refugees when he was a child.
But he had long opposed abortion for moral reasons.
Across the country, anti-abortion activists had worked to help pass laws in nearly a third of states that 
banned abortion after 20 weeks of pregnancy,
defying the standard set by Roe for legal abortion up to fetal #viability,
at about 24 weeks.
Most of those bans had not been challenged by abortion rights lawyers
— who feared they might be upheld by the Supreme Court
— creating a new national standard, leaving them in effect in states where Republicans controlled the legislatures,
like South Carolina, West Virginia and Wisconsin.
Even when one of the new laws went before the Supreme Court in
"Whole Woman’s Health v. Hellerstedt" in 2016,
the abortion rights lawyers arguing the case chose to focus only on the provisions regulating clinics
— and left the 20-week Texas ban untouched.
Now Tseytlin posed a theoretical question, according to people familiar with the discussion:
What would happen if a state tried to pass an abortion limit at, say, 15 weeks?
A slightly earlier restriction could force the court to examine the viability rule
— and shake the very foundations of Roe.
Could they push the number of weeks back just to the point at which their opponents would challenge it?
Tseytlin had a hard time believing that Chief Justice John G. #Roberts Jr.
or #Kennedy, who had come to inhabit a role as the court’s swing vote,
would strike down a ban that was just a few weeks earlier than 20.
Many restrictions in Europe were drawn at 12 or 15 weeks.
Tseytlin mused about all of this to a new acquaintance connected with the "Alliance Defending Freedom,"
the Christian legal organization that Leo praised in an interview as “formidable” and “a real major force in the conservative legal world.”
(A.D.F. participated in multiple on-the-record interviews over several months, but later, in response to repeated questions,
a spokeswoman disputed what she referred to as this article’s “inaccurate and mischaracterized” assertions.)
Even during the political exile of the Obama administration, A.D.F. had won five major cases at the Supreme Court,
including ensuring the right to pray at government meetings and securing an exception for Christian colleges from the Affordable Care Act’s requirement to pay for insurance coverage for contraception.
Their victories consistently carved out additional space for Christianity in American public life.
Now A.D.F. saw a new chance to advance a body of law to attack abortion rights. It was a window that its lawyers believed might not be open for more than a few years,
and they were determined to take advantage of it.
In the summer of 2017, A.D.F. convened hundreds of top conservative leaders at the luxurious
Ritz-Carlton in Laguna Niguel, Calif.,
for a private four-day summit.
The stated goal was to discuss religious freedom.
But the deeper ambition was to develop an agenda for the new Trump era.
The guest list included 10 state attorneys general and solicitors general;
a collection of the most powerful Christian lawyers in the country;
and Jeff #Sessions, Trump’s new attorney general.
Sessions initially kept his remarks, which offered a strident defense of religious freedom and A.D.F.’s work, a secret from the public.
Like the Federalist Society, A.D.F. aimed to connect lawyers and legal allies to further its goals.
But A.D.F. was also profoundly different.
It was an explicitly conservative Christian legal-advocacy project,
designed to bring together lawyers, elected officials and activists
to achieve policy goals in line with its religious mission.
Now A.D.F.’s work was growing, and largely under the radar, as it sought to become a mainstream Christian rival to the A.C.L.U.
No one on the outside knew just how extensive the network’s ambitions were,
or that it was beginning to lay the groundwork to challenge Roe.
A.D.F. had invited another delegation that sought to keep its participation off the official record:
a team from the Wisconsin attorney general’s office, including Tseytlin.
When a reporter from the USA Today Network-Wisconsin later unearthed the delegation’s participation,
a state spokesperson simply said that Tseytlin was a leader of a session at the conference.
No one disclosed what it was about.
Tseytlin’s remarks that day remained unknown to the public.
But Tseytlin, a man most Americans had never heard of, was there to present his legal strategy to end Roe.
Lawyers had a moral duty to act, Tseytlin told the group, according to participants.
He proposed his idea for an abortion ban that set a limit earlier than 20 weeks to undercut Roe more openly.
(3/n)
#AllianceDefendingFreedom #fedsoc #FederalistSociety
#viability #Roberts #Kennedy #Alito
#Leonard #Leo #Misha #Tseytlin
Even to those in the room with Tseytlin, it was far from clear that the plan they were hatching would, just five years later,
lead to the most consequential Supreme Court ruling on abortion rights in half a century.
The early months of the Trump administration had been good for A.D.F.
The group now had some 3,000 allied lawyers in its network and brought in more revenue than the A.C.L.U.
Part of A.D.F.’s power was built from events like the one in Laguna Niguel that brought together state attorneys general and solicitors general from across the country
with like-minded lawyers to strategize on priorities.
Some of those guests were reimbursed for travel expenses;
for this summit at the Ritz-Carlton, the group paid part of Tseytlin’s travel costs.
The organization asked guests to maintain the secrecy of their discussions,
as it often did, according to participants.
A.D.F. did not disclose its list of allies and encouraged lawyers involved with its efforts to not even acknowledge attending its events, according to attendees.
A.D.F. declined to comment on Tseytlin’s presentation, or even confirm that he spoke, saying the details of its conference were confidential.
The idea of moving up bans from 20 weeks faced resistance from some anti-abortion activists.
Even with Trump in office, the movement remained divided over the best legal path to end abortion rights.
Some worried that an earlier limit would be too aggressive for the justices. If their test case got to the Supreme Court and lost, it could set their movement back years.
But another flank of the movement wanted to take advantage of this moment of power and move more aggressively to pass laws that flouted Roe’s viability requirement.
Arkansas had already passed a 12-week law, and it had been blocked by the courts,
so that seemed too early.
A.D.F. lawyers decided to get a state to ban abortion at 15 weeks.
The spark of Tseytlin’s cocktail-hour conversation became a flame.
The goal would be to remove Roe’s viability line without directly asking the court to take the more drastic
— and more politically inflammatory
— step of directly overturning the decision.
It could be the first move in a longer strategy to end legal abortion entirely.
A.D.F.’s mission was to draft airtight legislation that would survive the journey through conservative statehouses
and the inevitable legal challenges in the lower courts
in order to eventually arrive at the Supreme Court.
A.D.F. lawyers then identified states where they believed the bills had the best chance.
They looked for favorable governors, attorneys general and legislatures.
Three states stood out:
Arkansas, Mississippi and Utah.
Each was in a different circuit-court region. The thinking was that if the laws were debated in different circuit courts and the courts issued conflicting rulings,
the Supreme Court would be more likely to take up one of the cases and arbitrate among them.
It was this kind of conflict
— what lawyers call circuit splits
— that often attracted the interest of the justices,
who saw part of their mandate as ensuring that the law was applied consistently across the country.
“A circuit split would mean there had to be a resolution,” says Marjorie #Dannenfelser,
the head of Susan B. Anthony Pro-Life America,
a top political anti-abortion group, who was on A.D.F.’s board at the time.
(4/n)
#AllianceDefendingFreedom #fedsoc #FederalistSociety
#viability #Roberts #Kennedy #Alito
#Leonard #Leo #Misha #Tseytlin
While A.D.F. tried to reverse-engineer its way to the Supreme Court, anti-abortion activists on the state level were also trying to advance tighter bans.
A.D.F. tracked them all.
Every legislative session was another opportunity to move forward.
The states where residents were most religious were the ones where the legislatures were pushing for abortion restrictions.
And at the top of that list, with 59 percent of adults identifying as “very religious,” according to Gallup, was Mississippi.
Since 2004, there had been only one clinic in Mississippi where women could get an abortion:
Jackson Women’s Health Organization,
with its unmistakable bubble-gum-pink walls.
The Pink House, as everyone called it, was just a seven-minute drive from the State Capitol,
where lawmakers tried to find ways to shut it down with bill after bill.
And again and again, the Pink House and its lawyers at the Center for Reproductive Rights,
a legal-advocacy group that supported abortion rights,
pushed back in the courts,
arguing that the laws violated the standards set in Roe and Planned Parenthood v. Casey,
the 1992 Supreme Court decision that upheld Roe
(but allowed states further latitude in restricting abortion).
In the fall of 2017,
a few months after Tseytlin’s presentation at A.D.F.’s Ritz-Carlton summit,
Jameson #Taylor,
a conservative Christian lobbyist,
started what he called his annual “intelligence gathering” on what anti-abortion legislation he wanted to push in the next session of the Mississippi Legislature.
He made the rounds to various Christian groups and called different policy experts,
including Kellie #Fiedorek, a young lawyer who worked for A.D.F.
Her job was to build out the A.D.F. network in the states,
to push its model legislation on various issues through the statehouses and to create an army of allied local lawyers who could defend it.
This was the next step of a tightly held plan,
whose details have never been revealed to the public.
Soon Taylor was listening as A.D.F. lawyers made their case that the Supreme Court might uphold a law that banned abortion before Roe’s standard of viability
— and that Mississippi would make an ideal testing ground.
Denise #Burke, one of the movement’s top authors of anti-abortion measures at A.D.F.,
explained how the model legislation she was writing would work, Taylor recounted.
To end the federal right to an abortion, activists needed a law that could actually reach the Supreme Court.
Passing a ban that was too aggressive would be categorically struck down in the lower courts.
Burke and A.D.F. were drafting the legislation with Kennedy in mind.
He was a practicing Catholic but had ruled in favor of abortion rights in the landmark cases of Casey and Whole Woman’s Health.
But he had also criticized abortion later in pregnancy in Gonzales v. Carhart,
where he wrote the majority opinion upholding a ban on so-called partial-birth abortion.
Now they hoped he might be a swing vote once again,
this time to uphold a law that would nudge an abortion ban earlier in pregnancy and,
in the process, eradicate the underpinning of Roe.
The legislation was written in a way that suggested it was grounded primarily in medical reasoning.
But it featured specific legal language that aimed directly at A.D.F.’s real target.
Roe had called the developing embryo and fetus “potential human life.”
This bill described it as “an unborn human being”
and highlighted specific details of prenatal development as evidence.
The legislation stated that the United States was one of seven countries in the world to allow for abortion after 20 weeks of pregnancy,
a way to argue that the country was an outlier among developed nations.
The bill picked quotes from the decisions in Roe and Casey
that acknowledged that states had an interest in protecting
“the potentiality of human life” and
“the life of the unborn.”
A.D.F.’s idea was to design the legislation to draw out what it saw as an inherent conflict in those two rulings
— each allowed abortion before viability
but also said that states had an interest in preserving potential life.
The bill would argue that Mississippi was doing exactly what the Supreme Court allowed and force the court to reconcile the difference.
(5/n)
#Dannenfelser #AllianceDefendingFreedom #fedsoc #FederalistSociety #viability #Roberts #Kennedy #Alito #Leonard #Leo #Misha #Tseytlin
Taylor knew a 15-week ban would criminalize only about 3 percent of the roughly 2,600 abortions that were performed in Mississippi that year.
But stopping procedures was not the point.
A.D.F.’s primary goal was to write bills as a litigation strategy,
not draft laws that would make for the strongest public policy
or end the greatest number of abortions.
The Mississippi bill was a legal tool to provoke a Supreme Court challenge to Roe
— and set in motion a much larger plan to eventually end all abortion in America.
Some lawmakers in Mississippi worried that they would be sued if the bill passed
and did not want to be saddled with the exorbitant cost such litigation could bring.
But A.D.F. had a plan for that too,
offering to have its lawyers defend the law at no cost to the state.
This free legal counsel was a selling point for Taylor when he lobbied the legislators to take up the bill.
And Taylor had an important ally in the statehouse whom he knew he could count on to push an anti-abortion bill:
Representative Becky #Currie, a nurse, an observant Christian and at the time a
three-term legislator who was one of the state’s most ardent advocates for the cause.
“I’ve been pro-life since I was 18 and pregnant,” she said in an interview.
“The more we worked on the bill, it just felt anointed.
You just know when it was right.”
She sponsored and introduced the bill A.D.F. wanted, called the
"Gestational Age Act," in early 2018.
Currie’s experience as a nurse shaped her political views.
She often told the story of an incident in the hospital as a young nurse when a pregnant woman came in and delivered far too early.
The details varied in her telling
— sometimes the premature infant was a girl, at others a boy,
sometimes it was 15 weeks, at others 14.
But what Currie remembered most was that she waited until the heart stopped
so she could put the remains in a plastic container to send to the lab.
What Currie felt she understood about what happened was that the fetus “wanted to live.”
“I just never got over that,” she remembered.
Currie was exactly the kind of woman anti-abortion activists in Washington had strategized to make the face of their movement.
A single mother, Currie had decided against having an abortion but still fulfilled her dream of becoming a nurse and then a politician.
She could speak personally and authentically about the subject and her faith.
Across the country, Republican women made up less than 10 percent of state legislators from 2008 to 2017,
but they were significantly overrepresented as sponsors of anti-abortion bills.
Of the more than 1,600 anti-abortion bills introduced during that period in state legislatures,
nearly half had a female Republican co-sponsor,
and a third had a female Republican as the primary sponsor.
It became more complicated for Democrats to paint abortion opponents as anti-woman when women were leading the charge.
(6/n)
#Taylor #Fiedorek #Burke #Dannenfelser #AllianceDefendingFreedom #fedsoc #FederalistSociety #viability #Roberts #Kennedy #Alito #Leonard #Leo #Misha #Tseytlin
But even as Currie proudly championed the bill, she would not know the full story behind it until after Roe fell more than five years later.
In an interview, she explained that she thought her vision for a 15-week cutoff,
rooted in her foundational story of the beating fetal heart,
had driven the plan.
No one had told her that A.D.F. had coordinated its strategy with Taylor before their meeting,
or that 15 weeks was part of its specific legal plan to undermine Roe, she said.
Or that Tseytlin had brainstormed this possibility at Leonard Leo’s Federalist Society cocktail hour
and advanced it at an upscale California resort alongside Republican leaders and attorneys.
When Gov. Phil Bryant of Mississippi signed the bill into law, with Currie smiling next to him,
it became the tightest restriction on abortion in the nation.
It made no exceptions for rape or incest, just a narrow provision to preserve the life of the woman or in cases of “severe” fetal abnormality.
Less than an hour later, Jackson Women’s Health Organization
— the Pink House
— filed a lawsuit through their attorneys at the Center for Reproductive Rights.
The Pink House performed abortions only until 16 weeks of pregnancy,
the center’s lawyers wrote,
and had done just 78 abortions when the fetus was identified as being 15 weeks or older in 2017.
Going after that small fraction, of course, was exactly the plan.
Not too early in pregnancy and not too late,
but exactly the line that might compel the Supreme Court to wade back into the subject of abortion.
“We were seeking to be incremental and strategic,” Taylor said.
Christian activists, he said, were learning to control their “moral passion” so as not to lose sight of their long-term goal.
There were still so many unknowns.
For the law to serve its intended purpose, anti-abortion activists needed a majority on the Supreme Court.
A.D.F. attorneys and their allies like Tseytlin had designed the legislation to target Kennedy,
but what they couldn’t foresee was that Kennedy would retire that summer,
allowing Trump to fill a second seat,
this time with Brett #Kavanaugh.
Now conservatives had a 5-4 split on the Supreme Court,
with Kavanaugh joining Roberts, Alito, Clarence Thomas and Neil Gorsuch.
And there was more to come.
“As a Christian,” Currie said, “sometimes you don’t know God’s plan, and he kind of makes things happen.”
In her Virginia office just across the Potomac River from Washington,
Marjorie Dannenfelser, of the Susan B. Anthony List
(now known as Susan B. Anthony Pro-Life America)
and the A.D.F. board,
had a detailed map drawn on a wall-size whiteboard.
From a distance, it looked like the kind used by political campaigns to track polling and turnout, swing districts and congressional votes.
But this one was color-coded to indicate states where Republicans held both the state legislature and the governor’s mansion
and was partitioned by circuit-court-of-appeals jurisdiction.
By early 2019, Republicans held complete control of state governments in 22 states,
giving them total power over abortion legislation.
Some 20 cases, with different legal strategies to gut Roe and Casey, were in litigation in lower courts.
A magenta triangle meant the state had passed a
“heartbeat bill,”
generally a ban that started around six weeks;
a green square signified a “pain-capable” abortion law,
typically a 20-week ban.
Red stars showed the federal appeals courts where judges nominated by Republicans outnumbered those nominated by Democrats
— of the 11 on the board, they controlled seven.
It was a map of how all the laws were moving up toward the ultimate court that mattered.
And now, on Sept. 18, 2020,
with the news of Justice Ruth Bader Ginsburg’s death,
Dannenfelser and her compatriots could capture another majority.
The kind of Supreme Court supermajority that could take down Roe.
(7/n)