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Tuesday, June 18, 2024

The Fall of Roe

 Elizabeth Dias and Lisa Lerer at NYT report on the Alliance Defending Freedom and its role in the fall of Roe.

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.
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.


[Jameson] 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.