Ella is
emergency contraception, and no credible doctor thinks it causes abortions, yet multiple states are already trying to
legally reclassify emergency contraception as abortion. (Iowa Sen. Joni Ernst even explained her vote against the Right to Contraception Act by saying that she introduced a separate bill that
doesn’t protect emergency contraception.) This is an area to watch in the coming months and years.
But getting the court to declare fetal personhood might take a while, and a backup plan appears to be trying to resuscitate the Comstock Act of 1873. ADF is arguing in the abortion pill case that the long-dormant anti-vice law means no one can mail abortion pills to other states, even those where abortion is legal.
And in arguments, two justices
seemed open to the idea. Anti-abortion lawyer Jonathan Mitchell — the man who wrote the
Texas bounty hunter law that nullified Roe months before Dobbs — is working with activist Mark Lee Dickson to pass local ordinances claiming Comstock bans the mailing of abortion pills. And he’s deploying the same tactic of pro-bono legal representation that ADF used in Mississippi. Mitchell
told The Nation he hopes to get lawsuits over the measures in front of the Supreme Court “as quickly as possible.” (Mitchell, I must note, is also litigating a case that gutted
minors’ access to birth control in Texas.)
ADF also has its sights set on reversing the 2015 ruling establishing marriage equality, but Waggoner also seems to resent when journalists ask her about Obergefell v. Hodges. (That ruling was 5-4, and two of the Justices in the majority are no longer on the court — you only need four votes out of nine to take a case.) “I’m worried you’re gonna just use a choice little quote, and anybody that reads the article is going to think I’m abandoning Obergefell, and I am not,” she
told The New Yorker. “I think it is wrong and it should be reversed, but I don’t wake up in the morning thinking about how to do that.”
The group wants to roll back transgender rights in employment (Bostock v. Clayton County, 2020) and expand parental rights (Troxel v. Granville, 2000) so that parents can override the medical needs of their children with gender dysphoria, The New Yorker reports. ADF is also behind the rash of state laws banning gender-affirming care for minors and trans kids’ participation in sports — the group wrote model legislation. We’re watching a redux of the anti-abortion battle plan in real time. “It’s not that the Court is going to say, ‘Gender ideology is bad,’” Waggoner told The New Yorker. “But I do think the Court could say, ‘Parental rights are fundamental rights.’”
This far-right Christian coalition is coming for practically every civil right people in the U.S. have gained since the 1960s. It wants to oppress queer people, young people and women, and there are very few obstacles in the way of it getting everything it wants. That’s the larger message of “The Fall of Roe” — that religious conservatives are extremely organized and see their work as far from over.
The next president could appoint multiple Supreme Court justices who may be asked to rule on cases challenging the precedents in the crosshairs of ADF, the Federalist Society and Susan B. Anthony Pro-Life. Justices Clarence Thomas and Samuel Alito could retire, cementing a 6-3 court for another generation — or the balance could tip even further to 7-2 should tragedy befall a liberal Justice.
Our freedoms in this country currently depend on the life expectancy of nine unelected people in robes, and the court absolutely needs reforms, including term limits. Keep all the right’s larger project in mind when you vote this fall, because this network of groups is counting on people to tune out.