The Next Targets for the Group That Overturned Roe

On March 15, 2023, two conservative Christian lawyers asked a federal judge in Amarillo, Texas, for a ruling that they privately considered an almost impossible long shot. They demanded a nationwide ban on mifepristone, a pill used in half the abortions in America. The drug had been approved by the Food and Drug Administration for more than twenty years, under both Republican and Democratic administrations. During the pandemic, the agency began allowing prescriptions to be filled by mail, to accommodate social distancing.

But the lawyers, from a group called Alliance Defending Freedom, were on a winning streak. Founded three decades ago as a legal-defense fund for conservative Christian causes, A.D.F. had become that movement’s most influential arm. In the past dozen years, its lawyers had won fourteen Supreme Court victories, including overturning Roe v. Wade; allowing employer-sponsored health insurance to exclude birth control; rolling back limits on government support for religious organizations; protecting the anonymity of donors to advocacy groups; blocking pandemic-related public-health rules; and establishing the right of a baker to refuse to make a cake for a same-sex wedding. Capitalizing on its success, A.D.F. had tripled its revenue over that period, to more than a hundred million dollars a year. It now had seventy or so in-house lawyers, including the former solicitors general of Michigan and Nebraska and the former United States Attorney for Missouri. The lawyers sent to Amarillo were Erik Baptist, a former top lawyer for the Environmental Protection Agency under President Donald Trump, and Erin Hawley, a Yale Law graduate who had clerked for Chief Justice John Roberts, advised the Attorney General under President George W. Bush, and worked on the team that overturned Roe. (She is married to Senator Josh Hawley, of Missouri.)

Thanks to the rightward shift of the courts under Trump, A.D.F. lawyers now often find a sympathetic audience on the federal bench. Filing the mifepristone case in Amarillo enabled A.D.F. to argue before Judge Matthew Kacsmaryk, a Trump appointee who had previously worked as the deputy general counsel of First Liberty Institute—a conservative Christian advocacy organization that has received grants from A.D.F. The summer before, Kacsmaryk’s chambers had chosen an intern from an A.D.F. program for law students; an alumnus of the program is clerking for him this fall. (Other alumni clerked last term for Justice Samuel Alito and Justice Amy Coney Barrett.)

Many of the sixty-odd members of A.D.F.’s fund-raising department gathered during the hearing to pray for a win, and, in a video conference the next day, Lance Bauslaugh, A.D.F.’s senior vice-president of development, told the staff that Erin Hawley was “super grateful.” Even though the Amarillo judge was “very friendly,” Bauslaugh said, upending a decades-old F.D.A. approval was “a tough thing to do.” He said of the judge, “Maybe he gives us half of what we are seeking”—say, restoring limits on mail-order delivery. That alone would be “huge.” (A left-leaning investigative organization called Documented provided me with leaked recordings of the video conference and other events, along with hundreds of pages of internal documents.)

The hearing itself, Bauslaugh noted, offered “fund-raising opportunities.” Donations had been flat lately; Bauslaugh blamed the economy, but surely the reversal of Roe had sapped some donors’ motivation. The mifepristone case was plunging A.D.F. back into a galvanizing battle. One of Bauslaugh’s lieutenants offered a potential fund-raising pitch: “If I told you five years ago that you could have invested in Roe being overturned, how much would you have invested in that? If I can tell you now that we are going to protect life even more, how much do you want to invest in that?”

Bauslaugh framed the case yet more broadly, beyond abortion or even Christianity. Calling it “a massive pushback on the F.D.A. and the Biden Administration from a regulatory standpoint,” he noted that there was “a ton of corruption in the bureaucratic state.”

In fact, he explained, A.D.F. was quietly revising its mission altogether, to reflect both the changing times and the group’s growing ambitions. Until now, A.D.F. had cast itself as primarily defensive. In the words of one of its founders, its purpose was “to keep the door open for the Gospel”: to prevent the American Civil Liberties Union and the courts from interfering with Christian ministry, to stop them from removing abortion from the jurisdiction of legislatures, and to keep religion in public life. But A.D.F. leaders often said that the Bible wasn’t just for the faithful; it was a universal guide to “human flourishing.” Accordingly, Bauslaugh told the fund-raisers, A.D.F. was taking on less explicitly religious concerns, perhaps including “corruption in the bureaucratic state.”

As though to reassure the staff that A.D.F. wasn’t abandoning its roots, Bauslaugh kept inserting Biblical references into his explanation. “Why do we exist as an organization?” he asked. “A.D.F. exists to advance our God-given rights to live and speak the truth.” He paused to let that sink in before adding, “The truth—the Gospel.”

For more than half a century, conservative Christians have decried the left’s ever-expanding demands for personal rights. The right to free speech allowed pornography to permeate the culture. The right to freedom of conscience for atheists and religious minorities silenced school prayer. And the right to privacy was stretched to protect birth control, abortion, gay sex, and, eventually, same-sex marriage. In an influential book from 1991, “Rights Talk,” Mary Ann Glendon, a Harvard law professor and a conservative Catholic, argued that letting debates over values become all-or-nothing contests about fundamental rights was undermining democracy, by “turning American political discourse into a parody of itself and challenging the very notion that politics can be conducted through reasoned discussion and compromise.” Rights talk had become dangerously polarizing.

Yet A.D.F. now gushes “rights talk.” In fact, Kristen Waggoner, its chief executive and general counsel, sometimes sounds as if she worked for her organization’s nemesis, the A.C.L.U. Arguing before the Supreme Court last winter, she told the Justices that she’d come to defend a bedrock First Amendment principle: the right to resist government attempts to coerce a citizen into publicly denying her deepest convictions. She said that she was standing up for a Black sculptor’s right to refuse to fabricate a cross for an “Aryan church rally,” and for an L.G.B.T. Web designer’s right not to promote “a view of marriage that they don’t hold.” Otherwise, she avoided bringing up sexual orientation or marriage—aside from acknowledging, almost in passing, that her client, Lorie Smith, the owner of 303 Creative, a design studio in Littleton, Colorado, had preëmptively declared that she’d never design a Web site for a same-sex wedding, because such a union “contradicts” Scripture.

The A.D.F. lawyers who filed the mifepristone suit had likewise said that they were arguing for the right to freedom of conscience: their clients were “pro-life” doctors in Texas who felt “complicit” in a patient’s “elective chemical abortion.” Emphasizing those rights, the judge surprised the A.D.F. lawyers by granting all their demands, including the unprecedented judicial suspension of a long-standing F.D.A. approval. The Justice Department has asked the Supreme Court to hear an appeal, and A.D.F. lawyers will likely appear there soon to defend the ruling.

Weeks after A.D.F.’s stunning victory in Texas, the Supreme Court found that the Web-site designer’s right to free speech overrode a Colorado law barring discrimination on the basis of sexual orientation. The majority opinion, by Justice Neil Gorsuch, quoted George Orwell’s axiom that liberty entails “the right to tell people what they do not want to hear”—in this case, to tell a couple that their marriage is sinful.

Though it was A.D.F.’s fifteenth Court victory, Waggoner told me that, aside from overturning Roe, Gorsuch’s opinion was “bigger than anything” her group had yet achieved. She teared up as she praised the Court’s commitment to protecting unpopular speech “even right now, even in this moment”—the era of cancel culture.

A.D.F.’s liberal critics invoke Orwell, too. They say that the group’s “rights talk” is doublespeak for bigotry, patriarchy, and discrimination. Erwin Chemerinsky, the dean of the law school at U.C. Berkeley, told me that A.D.F. “puts freedom to discriminate over freedom from discrimination.” Sarah Warbelow, the head of legal advocacy for the Human Rights Campaign, a leading gay-rights group, told me that A.D.F. was “hellbent on eradicating L.G.B.T.Q. people from public life.” A.D.F. is currently asking the Supreme Court to hear its defense of a Christian psychotherapist’s right to counsel children and adolescents about how to overcome same-sex attraction—a practice, which L.G.B.T. advocates call “conversion therapy,” that many states have outlawed. In 2003, A.D.F. filed an unsuccessful brief to the Court defending the criminalization of gay sodomy, and since then its international affiliates have defended similar laws outside the U.S. (An A.D.F. spokesperson said that, as a matter of policy, its affiliates do not litigate to criminalize gay sex; they argue only against the authority of international organizations to impose moral norms on sovereign states.)