The Christian Legal Army Behind the Ban on Abortion in Mississippi

The Christian Legal Army Behind the Ban on Abortion in Mississippi

The Christian Legal Army Behind the Ban on Abortion in Mississippi

The Alliance Defending Freedom has been laying the groundwork to end legal abortion for years. But that’s just the beginning.

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In January 2018, attorneys with the Alliance Defending Freedom outlined a plan to “eradicate Roe” that is now coming to fruition. Speaking at the Evangelicals for Life conference, ADF senior counsel Denise Burke announced that just that week, state lawmakers in Mississippi had introduced the nation’s first-ever 15-week abortion ban. Based on ADF’s model legislation, the bill was designed to provoke a challenge from abortion rights groups that, ADF hoped, would make its way to the US Court of Appeals for the Fifth Circuit, and then on to the Supreme Court.

“We’re kind of basically baiting them; come on, fight us on turf that we have already set up and established,” Burke said, according to audio provided by Peter Montgomery of Right Wing Watch, who reported on the panel at the time. “Once we get these first-trimester limitations in place, we’re going to go for a complete ban on abortion, except to save the life of the mother.”

Almost four years later, that plan is on track. On December 1, that 15-week ban, now on the books but enjoined in Mississippi, will give the Supreme Court’s three Trump-appointed justices their first real opportunity to reshape legal abortion. For decades, the Christian Right’s legal and judicial wings have worked together to bring about this moment. The Federalist Society hand-picked the justices for Trump to appoint the Supreme Court. ADF wrote the law at issue in Dobbs v. Jackson Women’s Health Organization that will give those justices the opportunity to overhaul Roe v. Wade.

Texas swerved from this incremental plan with its near-total abortion ban via Senate Bill 8—a law designed to evade court review altogether by outsourcing enforcement to private bounty hunters. ADF makes no mention of Senate Bill 8 on its website and has not filed a brief in support of it. But the Texas law might ultimately end up benefiting the group’s strategy by making it seem moderate by comparison even though it wants the Supreme Court to overturn 50 years of precedent on abortion. In a statement to The Nation, ADF called its 15-week ban “common sense” and said the United States is an “extreme outlier when it comes to abortion law.” While it likely helps their strategy, some in the anti-abortion legal world see the Texas law as a nuisance for the Supreme Court.

“They thought long and hard about whether to take the Dobbs case, when to take it, under what circumstances,” Jennie Lichter, deputy general counsel with the Catholic University of America, said on a recent Federalist Society webinar. “Now their careful planning has been sort of blown to pieces by the sort of insertion of these cases coming out of Texas.” She added, “I can’t imagine that the court is happy about having to issue a decision in these cases before they hear Dobbs.”

If the tone of the questioning by Justices Amy Coney Barrett and Brett Kavanaugh during arguments November 1 on Senate Bill 8 is any indication, the justices have indeed decided that they aren’t happy with the Texas law—or at least, with the public backlash against it—despite having allowed SB 8 to take effect, depriving patients in Texas of access to legal abortion for more than two and a half months. Kavanaugh, for example, seemed concerned about the idea that the law’s enforcement mechanism could be used to take aim at free speech, religion, or gun rights. “There’s a loophole that’s been exploited here, or used here,” he said.

Analysts like Aaron Tang, a University of California at Davis law professor who wrote a piece for The Washington Post defending the Mississippi ban as a “compromise,” have already laid the groundwork for a public narrative that could let the Supreme Court off the hook if it overturns the Texas “bounty hunter” law but lets the Mississippi ban take effect. Thanks to Texas, the decades-long plan to gut half a century of legal precedent on abortion could wind up looking sensible. For the architects of this plan, as monumental as this outcome would be, abortion is just the beginning.

The Alliance Defending Freedom, described by founder Alan Sears as a “legal army,” is the engine behind the Christian right’s legal agenda. With a $50 million annual budget, the organization writes model bills and funds and  litigates court cases that seek to weaponize a narrow interpretation of religious freedom in service of a whole host of conservative priorities—from empowering discrimination against LGBTQ people to opposing the Biden administration’s Covid vaccine mandate. ADF boasts a network of more than 3,500 allied attorneys and has trained more than 2,100 of them. Speakers at its Blackstone Legal Fellowship for law students have included Supreme Court Justice Barrett and Fifth Circuit Judge Kyle Duncan. Its influence has extended to members of Congress like Louisiana Representative Mike Johnson, a former ADF attorney, and to attorneys general offices nationwide, where, as of 2017, at least 18 ADF-affiliated attorneys were working across 10 states, as Sarah Posner reported for The Nation at the time.

If you don’t know ADF’s name, you’ve likely heard of its policies: the bills to ban trans students from using the bathroom that matches their gender and from playing sports with their same-gender peers, for example. ADF won a narrow victory at the Supreme Court for a Colorado baker who refused bake a cake for a same-sex wedding. And, more recently, the group has taken up the purported “indoctrination” of students in critical race theory and defended elementary school teachers who want to misgender their students. What ties these threads together is an agenda expressed by Posner: “the organization’s painstaking construction, case by case and argument by argument, of a legal narrative asserting that Christians are under threat of persecution from the advance of LGBTQ and reproductive rights, as well as from secular schools and universities, and that the law must allow Christians to disregard, disobey, or even dismantle laws protecting those rights.”

That agenda is so in lockstep with today’s Republican Party that ADF Chief Executive Michael Farris played a secret role in efforts to overturn the 2020 election in favor of Donald Trump, according to The New York Times.

As legal abortion appears poised to fall, ADF and the rest of the Christian right legal movement, are beginning to chart their next steps. 

“From their perspective, Roe is dead; it’s just a matter of time,” Imara Jones, investigative journalist and host of the Anti-Trans Hate Machine podcast, said. “So what they are going to need is a new front in the gender wars to keep their funders, their activists, their political network animated around issues of gender.”

Enter anti-transgender bills, which have burgeoned in state legislatures over the past few years. State lawmakers introduced more than 100 anti-transgender bills this year, up from 21 in 2015. In many states, abortion and transgender rights are being eroded in tandem. Texas enacted a ban targeting the ability of transgender students to participate in sports, right after its near-total abortion ban took effect. Mississippi, where the 15-week ban at issue in Dobbs made its debut in 2018, passed this year’s first anti-LGBTQ law, an anti-transgender sports measure. The past year has shattered records for both anti-transgender and anti-abortion bills.

It’s not just that these are “two sides of the same coin,” as Jennifer Finney Boylan wrote for The New York Times. It’s actually the same organization that is designing and financing these attacks.

For the most part, Jones noted, the movements to defend abortion and LGBTQ rights don’t operate this way. Mainstream organizations like Planned Parenthood, NARAL, and Human Rights Campaign tend to operate as single-issue organizations, as do more grassroots direct service organizations.

“Progressives are essentially a coalition agenda, but the right is a unified agenda with a common ideology,” Jones said. “You have this coalition that’s going up against this machine.”

It took decades for this machine to build its power—and, ironically, one of its architects claimed that he was inspired by the fine-tuned coordination of liberals.  

In January 1994, more than 30 leading members of the Christian right came together to form what they hoped would be the right’s version of the American Civil Liberties Union. The Alliance Defense Fund, which would become the Alliance Defending Freedom, announced its formation at a news conference during the National Religious Broadcasters Conference in Washington, D.C. Fred Clarkson, a longtime analyst of the Christian right, was there in the audience. He remembers a telling moment when one of the speakers, a professor at a Christian college, talked about his belief that states could establish official religions. A journalist asked whether that meant Utah could establish Mormonism as its state religion. The speaker didn’t answer, Clarkson recalled—an obvious sign that this organization was not ready to embrace all versions of state religious power.  

“It was such a great and revealing moment about the Christian supremacist goals of this organization,” Clarkson said.

There’s another origin story Clarkson points to explain how ADF and like-minded organizations on the Christian right rose to power. It’s a story that Paul Weyrich, Heritage Foundation founder and so-called godfather of the modern conservative movement, used to tell about the origin of his framework for success. In the 1960s, as a young congressional staffer, Weyrich attended a liberal strategy session. In his telling—one that might sound delusional to observers of the state of today’s Democratic Party—Weyrich observed “all these different groups, including religious groups, networking with people on the Hill, formulating strategy for offering amendments, and then executing that strategy with media, with demonstrations, with lawsuits, with studies, with political action, by targeting people—all the different elements of the political process.” Then, according to Weyrich, he copied the model.

“That was the original insight,” Clarkson said. “The conservative movement, beleaguered small, victim of the ’60s—they needed to have an infrastructure of their own.” Half a century later, they’ve not only succeeded, but “exceeded their wildest dreams,” Clarkson said.

Meanwhile, the movements in favor of abortion and LGBTQ rights have been stymied in part by a failure to recognize the rising power of a common enemy.

With the feminist and LGBTQ movements siloed, and without a coherent, collective vision of bodily autonomy, some feminists have embraced arguments about trans people that ADF itself promotes. For instance, the idea repeated by some feminists that “men can’t get pregnant” is literally an ADF talking point, featured in a video on the organization’s website about a professor who went to court to fight for his right to misgender a trans student.  There’s a reason why groups like ADF have eagerly allied themselves with purported feminist organizations like Women’s Liberation Front. Despite its name, the US-based nonprofit has focused much of its energy on opposing trans rights. ADF has, in turn, given the group thousands of dollars in funding to support these efforts. Whether intentionally or not, the embrace of anti-trans talking points by some on the left, who have argued, for example, that embracing gender-inclusive terminology is tantamount to banning the term “woman,” has played into the Christian right’s hands.

“The right will always be incentivized to platform infighting and to make it seem as if the left is divided,” Heron Greenesmith, who researches anti-trans feminists at Political Research Associates, said. “The right has an interest in a divided left.”

Beyond the fact that it’s literally the same organization that is bringing about the end of legal abortion and the right of trans people to exist in public life, for these movements, the parallels and opportunities for solidarity are bountiful. What’s at stake is the right to access medical care and create the families we want in the face of an agenda that idealizes the white, nuclear family. Promisingly, many activists have already recognized this common ground. If the Christian right’s success over the past half-century is any indication, movements can win big when they see how the dots are connected.

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