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(LifeSiteNews) – As pro-lifers around the world rejoice in the U.S. Supreme Court’s overturning of Roe v. Wade, more of the legal backstory of the Dobbs v. Jackson Women’s Health Organization case that brought down the federal “right” to abortion is coming to light.
Like any other major political victory, much thought and legal counsel went into navigating the living political arena with its unforeseen hurdles and changing landscape. Indeed, the final all-or-nothing approach taken for the presentation of oral arguments before the Supreme Court was considered by veteran legal strategists to be doomed to fail, but its success may help shape future litigation in the courts in like cases.
Notably, it “was difficult to get support from a number of life groups” for Mississippi’s 15-week abortion ban rather than laws merely banning abortion at 20 or 22 weeks and “many, many people who were advising Mississippi informally said that they were crazy to ask for Roe to be overturned,” two prominent lawyer-insiders revealed to The Epoch Times.
6-month-old baby attending legal strategy meetings ‘made why Dobbs matters really concrete’
As early as 2016, the conservative legal group Alliance Defending Freedom (ADF), was engaged in consultation about a law that could result in the overturning of Roe v. Wade. As the Dobbs v. Jackson case later unfolded, ADF brought on Erin Hawley, a seasoned lawyer who is also wife of Sen. Josh Hawley (R-MO). At the time she had a baby who was several months old, whom she brought to a meeting with Mississippi Attorney General Lynn Fitch.
Commenting on the importance of the consultations on how to overturn Roe, Hawley said, “I think it was really meaningful for me because I had a 6-month-old that I actually took to Mississippi to that meeting. It made why Dobbs matters really concrete, to be talking about this legal strategy and these issues with a baby in tow.”
Hawley had been a Supreme Court clerk under Chief Justice John Roberts and her husband is a former state attorney general. Working closely with the State of Mississippi during the litigation of the Dobbs case, ADF, with the help of Hawley, conceived the strategy that eventually won at the Supreme Court.
The strategy came after initial legwork had already been done in choosing the right state to go through, as well as getting a bill introduced that, on the one hand, would have the support of the legislature and attorney general, and on the other hand, would face a court challenge by pro-abortionists and be struck down by state judges. Only in this way could the bill become a state law that would be able to wind its way to the Supreme Court.
Pro-lifers decided that the legislation had to challenge the Roe viability standard. ADF’s first difficulty arose in 2016 in trying to convince pro-lifers that such an abortion challenge would not be dead-on-arrival either in a state legislature or the Supreme Court.
‘Candidly, it was difficult to get support from a number of life groups’
Kristen Waggoner, general counsel for the ADF and seasoned Supreme Court lawyer, said of the internal debates at the time, “Candidly, it was difficult to get support from a number of life groups, because the consensus was, you know, you should stick with 22-week limitations or 20-week limitations. That was the strong consensus, but it was very clear that Planned Parenthood wasn’t challenging 20-week laws, because that was too close to the viability line.”
Waggoner explained that ADF was “looking at specific courts, Attorney General’s offices, looking at the legislatures in the states to try to figure out where to go.”
“When you think about [it],” she said, “it’s not just a campaign that you would run as a case is going through the courts. It’s also campaign that you would run to get a bill passed.”
Legislators of three states expressed openness to challenging Roe’s fetal viability standard by passing early-term abortion bans. Arkansas and Utah both did so in 2019. Mississippi, however, was the state of choice, when in March of 2018 legislators introduced and passed the Gestational Age Act, banning abortion at 15 weeks, prior to Roe’s viability standard.
ADF’s director of government affairs, Kellie Fiedorek, gave the background on the situation inside the Mississippi government. “We had some allies on the ground,” she said, “and the governor’s office down there, which was Governor Bryant at the time, so the legislation took off. The legislators loved it.”
When signing the bill, the governor said Mississippi was “saving more of the unborn than any state in America, and what better thing could we do.” Knowing Planned Parenthood’s opposition to the bill, he remarked, “We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”
Mississippi solicitor general defended unborn during Trump admin
As expected, Mississippi was promptly sued by its one abortion facility, Jackson Women’s Health Organization, and in November 2018, a federal judge struck down the Gestational Age Act. The ruling was appealed, only to be have the federal Fifth Circuit Court of Appeals in December 2019 uphold the lower court’s judgment that the law ran contrary to Roe and Casey’s viability standard. This set the stage for an appeal to the Supreme Court.
Just one month after the Fifth Circuit’s ruling, Mississippi saw a new governor, Tate Reeves, and a new attorney general, Lynn Fitch, take office. The burden of pushing the legal case for the Gestational Age Act would rest on their shoulders, and both would take up the pro-life cause.
Fitch filed a petition with the Supreme Court to hear the Mississippi abortion case in June 2020. With the death of liberal Justice Ruth Bader Ginsburg later that fall, and the confirmation of conservative Notre Dame law professor Amy Coney Barrett, the landscape of the Court suddenly shifted to a solid pro-life majority. The prospects of a successful ruling for Mississippi seemed a real possibility.
With hopes rising on the side of the pro-life movement, Fitch appointed Scott Stewart solicitor general. In this capacity Stewart became the lead litigator in Dobbs v. Jackson and would present the oral arguments before the Supreme Court.
The choice to have Stewart lead the case was not without its own backstory. He had served as a former clerk to conservative Supreme Court Justice Clarence Thomas, and worked in the Trump administration’s Department of Justice. In the latter capacity he had defended the administration’s stance that a 17-year-old illegal immigrant residing in a federal shelter, who had obtained a court order to have an abortion, could not remain in the country unless she brought the baby to term. A federal judge rejected Stewart’s arguments in the case, but it established him as a strong defender of life.
‘Many, many people who were advising Mississippi informally said that they were crazy to ask for Roe to be overturned’
On May 17, 2021 the Supreme Court granted the petition to hear the Mississippi abortion case, but limited its review to only one question contained in the appeal: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
At this point the emphasis of Mississippi’s arguments shifted to the underlying goal behind the whole project: if the viability standard of Roe and Casey was to be jettisoned, both precedents would have to overturned in their entirety. The arguments presented to the Court would entail an all-or-nothing approach.
According to The Epoch Times, Sherif Girgis, a law professor at the University of Notre Dame, commented on the uncertainty this approach created among supporters of the Mississippi pro-life case.
“I can tell you without naming names,” he said, “that many, many people who were advising Mississippi informally said that they were crazy to ask for Roe to be overturned in full–that this could backfire and lead the court to strike down the law under existing precedent. And that the most they could hope for was a slight tweak to existing precedent to allow 15-week laws, but not much more.”
“We can easily forget,” Girgis added, “that just a few months ago, it seemed to a lot of seasoned court watchers to be insane for Mississippi to ask for this.”
The bold strategy, however, was not without its own supporters. Ryan Anderson, President of the Ethics and Public Policy Center, praised Mississippi’s lawyers for their undaunted stance.
“The Attorney General of Mississippi Lynn Fitch, and the SG Scott Stewart as well, I think they both deserve a huge amount of credit for going whole hog,” Anderson said. “I think it was a good strategy of bringing the Mississippi law limiting abortion to 15 weeks, to make them realize how radical [our] law is–15 weeks puts us in line with Europe, and no one thinks Europe is like the religious right.”
When oral arguments were finally presented to the Supreme Court in December 2021, Mississippi’s opponents also adopted a maximalist approach: Roe and Casey stood or fell with the fetal viability standard. Both precedents had to be either upheld or overturned in their entirety.
Commenting on the pro-abortion side’s acceptance that it was an all-or-nothing case, Girgis opined that this may very well have been their own undoing. “The biggest mistake I think the opponents of the Mississippi law made,” he said, “was to refuse to give the court a middle ground, to refuse to give the court a way to uphold the regulation while still leaving intact some right to an abortion. Obviously, they didn’t want to give the court a way to uphold the regulation period. But the fact that they kept saying there’s no middle ground made it easier for the court to say: ‘Look, our hands are tied. We just have to decide thumbs up/thumbs down on Roe and on the constitutional rights on abortion.’”
Waggoner said she was also “surprised that the lawyers basically told the court it’s one way or the other here, you either have to reverse Roe and Casey or you don’t.”
The Court itself in its final opinion acknowledged that Mississippi’s opponents “contend that ‘no half-measures’ are available and that we must either reaffirm or overrule Roe and Casey.”
This allowed the Court to more easily judge the case as it finally did: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Mississippi’s strategy had at last won the day.
In gratitude to Alliance Defending Freedom for their assistance in launching the legislation that finally resulted in overturning Roe v. Wade, Mississippi’s former Governor Bryant praised ADF’s efforts as a work of tremendous merit in the Dobbs case. “When the Alliance Defending Freedom came in,” Bryant said, “it was the emphasis that we needed to begin this process. You need outside legal review… and [someone] watching the language, understanding what judicial scrutiny it’s going to come under, and understanding that the media are going to hype this.”
Thanks to ADF and the boldness of Mississippi’s lawmakers, unborn babies can begin to finally be protected in law.