Anti-abortion attorneys ascend federal government ranks with Christian right legal training

When Mississippi Solicitor General Scott G. Stewart presented Dobbs v. Jackson Women’s Health Organization to the U.S. Supreme Court in December 2021, he argued that state lawmakers should be able to ban abortion at any time in pregnancy, not just after so-called “viability,” the point where a fetus could survive outside of a uterus. The U.S. Constitution, he said, does not specifically protect the “purposeful termination of a human life.”

“The viability line discounts and disregards state interests,” Stewart said, according to the transcript of the oral arguments, contending that state lawmakers should be able to draw an earlier line on when they believe human life officially begins.

“How is your interest anything but a religious view?” asked U.S. Supreme Court Justice Sonia Sotomayor, one of the three liberals on the majority-conservative court. “The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Without directly answering, Stewart reiterated that this question about the beginning of life should be returned to the states. Justice Samuel Alito, who would go on to author Dobbs’ majority opinion overturning Roe v. Wade, helpfully asked the solicitor general whether any secular philosophers and bioethicists might also share the view that personhood begins at conception. Stewart finally responded that his plaintiffs’ interest was “not tied to a religious view.”

Despite that assurance, the nonprofit law firm that helped Stewart argue and win the Dobbs case — the Alliance Defending Freedom — has worked for three decades to change laws to fit an explicitly conservative Christian worldview when it comes to reproductive and family issues, with a focus on ending legal abortion and limiting trans rights. ADF’s systematic strategy to effect generational changes, according to its website, includes targeted litigation and legal training. Constitutional legal experts who study the religious right say the anti-abortion movement’s best chance of keeping unpopular abortion bans on the books is through its growing network of conservative attorneys and judges cultivated by ADF and allied Christian law firms and law schools.

ADF has employed and trained thousands of like-minded conservative Christian attorneys, some of whom have climbed the highest rungs of power, including new U.S. Speaker of the House Mike Johnson (R-Louisiana) and several federal appellate judges, state house representatives, a former attorney general, and a conservative New York Times opinion columnist. Some of ADF’s trainees have gone on to clerk for Alito and fellow conservative Justice Amy Coney Barrett, according to a recent New Yorker report.

“They know that their ideology is unpopular, and in many cases, anti-equality or even downright unconstitutional,” constitutional attorney Andrew L. Seidel told States Newsroom, about ADF. He is the vice president of strategic communications for the progressive group Americans United for the Separation of Church and State and has written books about the religious right movement. “They are trying to build up these networks to capture the courts, to capture the legal professions. Because they can’t win otherwise.”

ADF did not respond to a request for comment. On its website, the group says its “ultimate mission” is “to keep the doors open for the Gospel — not just for you, but for your children, grandchildren, and the generations to come.” In that pursuit, ADF has successfully argued 15 critical cases before the Supreme Court, including overturning Roe v. Wade last year and establishing precedent for corporations to use their executives’ religious beliefs as legal justification to deny employees birth control or to refuse services to LGBTQ customers and students.

And despite its success, Dobbs is far from ADF’s last abortion-related case.

The Supreme Court will soon announce whether it will take up either of the group’s three lawsuits this term. Their lawsuit against the U.S. Food and Drug Administration could upend access to the abortion drug mifepristone. That case has been roundly criticized, not just by abortion-access advocates, but by legal, medical, and pharmaceutical groups for its flawed legal and medical claims and for judge-shopping. ADF, which is headquartered in Scottsdale, Arizona, is representing the Alliance for Hippocratic Medicine. This coalition of national anti-abortion medical groups officially registered in Amarillo, Texas, in August 2022, just three months before filing the lawsuit in a district with allied federal judges on the benches. A ruling from U.S. District Judge Matthew J. Kacsmaryk — who cut his teeth at the Christian right law firm First Liberty Institute — advanced the case up to the conservative 5th Circuit Court of Appeals.

On behalf of the state of Idaho, ADF has asked the Supreme Court to intervene in one of multiple cases challenging the federal Emergency Medical Treatment and Labor Act, which the Biden administration says requires emergency health providers to provide stabilizing care to pregnant people even if that care could lead to the termination of a pregnancy. ADF attorneys are arguing that some physicians could be forced to participate in abortions that go against their religious beliefs, despite no Idaho doctors publicly expressing this concern.

ADF’s other case before the nation’s highest court seeks to overturn a Washington state law that prohibits licensed therapists from using so-called conversion therapy on minors. This practice — which has been banned or restricted in more than half the country, according to the Movement Advancement Project — seeks to change a gay or transgender person’s sexual orientation or gender identity.

The legal group is working on nearly a dozen ongoing lawsuits involving abortion and contraceptive access in lower courts throughout the U.S.

Religious influence on reproductive health care

Within the span of 30 years, the Alliance Defending Freedom has grown into a nearly $100 million nonprofit with about 100 attorneys on staff and nearly 5,000 in its network, whose former CEO Michael Farris in 2021 earned more than half a million dollars, according to federal tax records. The group belongs to a broader religious right legal ecosystem that encompasses allied nonprofit law firms like the Becket Fund for Religious Liberty, First Liberty Institute, and the Thomas More Law Center, as well as religious conservative law schools like Ave Maria School of Law, Liberty University, and Regent University School of Law.

Boston University law professor Robert L. Tsai and University of California Davis law professor Mary Ziegler recently wrote in Politico that groups like ADF have given rise to what they call “movement judges,” who differ from merely partisan judges in that their legal decisions consistently align with specific ideological movements. Tsai and Ziegler credit the Dobbs ruling with the movement judges who pushed it along the way, and some of whom now sit on the nation’s highest court. They refer to Kacsmaryk, who presided over ADF’s lawsuit against mifepristone, as a movement judge.

“A movement judge is less likely to defer to experts than a technocratic one and more likely to think of issues in terms of values,” Tsai and Ziegler wrote. “A preservationist tries to work with existing precedent as much as possible and cares about how the institution is perceived. By contrast, a movement judge is focused on what a mobilized subset of people want and is willing to overturn precedent to get there.”

Seidel told States Newsroom that many of the Alliance Defending Freedom’s cases limiting access to abortion and contraception likely would not have advanced far were it not for the allied attorneys and judges that have risen to power in recent years. Influencers like Leonard Leo have aided this effort, as have religious right groups like the American Family Association.

Heading into a high stakes presidential election where the winner will potentially get to replace aging anti-abortion Supreme Court Justices Alito and Clarence Thomas, AFA has been researching and publishing the biblical worldviews of potential judicial nominees and is recommending those that align most with the religious right on issues like abortion and LGBTQ rights to future presidential administrations. At the top of their current wish list is ADF CEO Kristen Waggoner.

“Researching worldview is massive,” said Phillip Jauregui, head of the Center for Judicial Renewal, a division of the American Family Association Action political arm, speaking at the Family Research Council’s Pray Vote Stand event in Washington, D.C., in September. “We look at, what do they believe, where do they go to church? What do they say about these basic issues? Because when everything else is stripped away, what’s left is your faith or your worldview.”

To Seidel, the increasing convergence with one particular religious view into law is scary, and unconstitutional.

“What AFA is saying is that they want judges who are going to decide cases based on biblical principles, not based on Constitution or legal principles,” Seidel told States Newsroom. “The real question is, are they going to honor their constitutional oath when it comes into conflict with their personal religious beliefs? Or are they going to abuse their power and the power of their office to impose their personal religious beliefs on everybody? And what AFA is looking for is judges that are going to abuse their power.”

Jauregui did not respond to a request for comment.

The training programs 

According to ADF’s website, intern and job applicants must vow to adhere to a specific set of doctrines, including the beliefs that God created “each person with an immutable biological sex — male or female — that reflects the image and likeness of God,’’ and that marriage is a lifelong union between a man and woman. It also states that “We believe God endows all human life with inherent dignity, and it must be respected and protected from conception to natural death.”

ADF, according to its website, established its Legal Academy in 1997 to train “Christian attorneys in constitutional law so they can provide pro bono, dedicated service to the Body of Christ.” That same year, it established the Allied Attorney program, which ADF says currently has more than 4,000 members. Upon completion, participants are connected to a network of like-minded attorneys throughout the country who sometimes team up with ADF staffers and are eligible for resources and grants from the national nonprofit.

Another  program, Young Lawyers Academy, solicits recent law school graduates and early career lawyers working in government or large and mid-size firms to receive “specific resources and opportunities to engage in ADF-related issues at the outset of your career. … Daily worship and devotions will reinforce the importance of your core beliefs to your practice of law.”

And through its Blackstone Legal Fellowship, launched in 2000, ADF has trained more than 2,600 Christian law students and placed them in internships with powerful judges and state attorneys general, including with District Judge Kacsmaryk and Supreme Court Justices Alito and Barrett. The summer program recruits students from Christian and Ivy League universities, where they hear from some of the most influential Christian right attorneys and law professors, Barrett among them. Past faculty include former Attorney General Edwin Meese III and Princeton University law professor Robert P. George. George founded Princeton’s James Madison Program in American Ideals and Institutions, which Mississippi Solicitor General Scott Stewart attended, according to his LinkedIn profile.

Former ADF senior counsel Jeffery J. Ventrella, who helped design the Blackstone Legal Fellowship curriculum, most recently served as an associate attorney for Idaho’s office of the attorney general, which since Dobbs has tried to block out-of-state travel for people seeking legal abortions in other states. Ventrella is no longer in that role, according to state online records.

Ventrella edited “Natural Law for Lawyers,” written by J. Budziszewski, professor of government and philosophy at the University of Texas, Austin, which discusses “natural law,” a theory that “governments depend on a ‘higher’ law for their authority — a law which human beings discover rather than enact.”

In the book, Budziszewski reasons that abortion goes against natural law. He criticizes previous Supreme Court decisions that upheld the federal right to an abortion for suggesting that the beginning of human life is an open question. Denying the constitutional personhood of a developing embryo or fetus, to Budziszewski, is comparable to justifying murder and genocide.

“Consider the possibilities,” the law professor writes. “A teen with a gun idly fires a shot into your bedroom window — because for him you don’t exist. A sadist tortures your wife to death — because for him the meaning of her pain and fear is pleasure. A business rival wires your car to explode — because for him the universe is dog eat dog. An admirer of Adolf Hitler burns down the houses of your Jewish friends — because for him Jews aren’t human life. There is no way in law or logic to distinguish the Court’s argument for abortion from the other four arguments.”

The people ADF has trained

ADF encourages its fellows and trainees to get into government.

In an email newsletter promoting the fellowship, ADF highlighted former Blackstone Legal Fellow Rachel N. Morrison, who worked for the U.S. Equal Employment Opportunity Commission, which is charged with protecting employees’ from discrimination. “The connections and exposure to thinking holistically about faith and the law at Blackstone was essential,” said Morrison in the newsletter. She currently works for the Ethics and Public Policy Center, a religious right think tank in Washington, D.C.

“We’re working on so many issues coming out of the Biden administration; abortion, religious freedom, the redefinition of sex,” Morrison said in the newsletter. “It’s really been cool to see how God has used shut doors to guide my life — and then how he has opened other doors.”

But not all former fellows felt comfortable with the principles taught during the Blackstone Legal Fellowship. Attorney Paul Southwick recently told Rolling Stone that he was struggling with being gay and in the closet while also learning how to argue in court that gay people shouldn’t be allowed to adopt or have domestic partnerships. Southwick says he left the program early and now litigates on behalf of queer students who have experienced discrimination at religious colleges, often on the opposing side of ADF.

“The whole point is to have a Christian takeover of the government,” Southwick told Rolling Stone. “In ADF’s eyes, God has dominion over the church, but he also has dominion over the state.”

Neither Morrison nor Southwick responded to requests for comment.

Seidel’s group, Americans United for the Separation of Church and State, is currently representing progressive clergy in Missouri who allege their state’s anti-abortion law is a violation of the separation of church and state, given the bill’s explicit religious framing and references to God.

“They captured the Supreme Court and there have been no consequences other than everything they want, from overturning Roe versus Wade to this weaponization of religious freedom, tearing down the wall of separation between church and state,” Seidel said of the Christian right legal movement. “The pace of change is just so rapid and dramatic, I don’t think people realize where we are. They’re going to wake up tomorrow, and we are going to be the Christian nation that these groups have been fighting for for so long. We’re gonna look around and wonder what the hell happened?”