Some of the same anti-abortion zealots who played a central role in overturning Roe are also playing a role in revoking Arizonians’ access to abortion healthcare.
The Arizona Supreme Court’s ruling that reinstated a draconian 1864 near-total abortion ban reveals the disingenuous nature of the “leave-it-to-the-states” positioning of some Republicans—who are concerned about abortion restrictions only so much as they are proving exceptionally unpopular with most Americans.
In response to the state Supreme Court’s decision, Democrats spearheaded legislation to repeal that law, which was recently signed by Gov. Katie Hobbs (D). However, leaving it to the states doesn’t always have such a rosy ending. And, indeed, this is not the end of efforts in Arizona or elsewhere by special interests trying to impose their regressive worldview on us all through law.
A closer look into the Arizona abortion case and court that led to the reprise of this antiquated anti-abortion law reveals that some of the same anti-abortion zealots who played a central role in overturning Roe are also playing a role in revoking Arizonians’ access to abortion healthcare.
What Does “Leaving it to the States” Really Mean?
Alliance Defending Freedom (ADF), a far-right litigation firm launched by anti-abortion and anti-LGBTQ+ bigot James Dobson, has played a massive role in attacking reproductive justice nationally.
- ADF litigated the Dobbs case that overturned Roe v. Wade, and its lawyers even drafted the Mississippi ban.
- It is also representing Idaho in the Emergency Medical Treatment and Labor Act (EMTALA) case the U.S. Supreme Court is considering. The Biden administration has argued that EMTALA preempts state laws that impede emergency abortions needed to protect the health of pregnant Americans.
- Erin Hawley, who orchestrated the litigation strategy in the Dobbs case for ADF, is also lead counsel in the mifepristone case, where ADF is asking the Supreme Court to overturn access to the abortion pill. The case was judge-shopped to a specific Trump appointee in Texas. Hawley admitted in her argument to the Supreme Court that ADF is pursuing a right to turn away patients who need emergency care because they took the abortion pill.
- ADF’s senior counsel Jake Warner also represented Arizona’s “guardian ad litem of unborn children” in the case that led to the Arizona Supreme Court’s reinstating the 1864 abortion ban, from before Arizona was even a state.
Even before Samuel Alito borrowed the “let the states decide” language from anti-abortion extremists in the Dobbs decision, ADF peddled the argument to the public. Ahead of the 2022 Dobbs decision, Hawley went on a press PR campaign about her observations of the Dobbs case, which she had been secretly orchestrating. (She is married to insurrectionist U.S. Sen. Josh Hawley, a Republican from Missouri.) Painting a distorting picture of how overturning Roe’s constitutional protections for access to abortion would be democratic, Hawley tried to assure people, “You’re going to have different laws in different states, but you’re going to have the people be able to have a say in that.”
In states where people have been allowed to vote on the issue, they have overwhelmingly sided with protecting their reproductive rights—such as in Ohio, Kansas, Michigan, California and Vermont. Yet, ADF and other national anti-abortion groups have tried to stop those democratic processes—like when ADF played a significant role in efforts to prevent an amendment to secure access to abortion from appearing on Ohio’s ballot last November, so that people would not have a chance to vote on it. ADF lost.
Post-Dobbs, in states with far-right legislatures and courts captured by special interest anti-abortion money, a few powerful actors have imposed their personal anti-abortion views as binding law, putting citizens living in abortion bans at risk physically and mentally.
- The Texas Supreme Court denied Kate Cox abortion care, despite carrying a fatally ill fetus and being at risk of suffering a uterine rupture that could result in her infertility or death.
- The Alabama Supreme Court disrupted fertility treatments in the state by declaring that embryos have the same rights as “minor children” under the law, even though actual children cannot be kept frozen in labs for hours or years.
- A 10-year-old rape victim had to leave Ohio in order to receive abortion care because of restrictions before Ohioans amended the state constitution.
- Pregnant women have also been denied necessary abortion care for dangerous pregnancies in Idaho, Oklahoma and Tennessee.
Leo-Backed State Attorneys General Blocking Efforts to Protect Reproductive Rights
ADF and other anti-abortion litigation firms are not alone in attacking reproductive healthcare at the state level. Far-right attorneys general, who obtain and keep their political offices with the financial backing of Leo’s network, are also attempting to impede Americans’ freedoms by choosing to enforce repressive state abortion bans, urging their state courts to back abortion bans or restrictions, and even impose their bans extraterritorially.
The Arizona case is a prime example. Former Arizona Attorney General Mark Brnovich, has received substantial financial backing from the Republican Attorneys General Association (RAGA), whose largest donor is Leonard Leo’s Concord Fund/Judicial Crisis Network. Concord Fund has given RAGA at least $21 million since 2014.
Soon after the overturn of Roe, Brnovich asked an Arizona state court to reinstate the 1864 ban. The court ruled in Brnovich’s favor and appointed Dr. Eric Hazelrigg—an anti-abortion OB-GYN and medical director of a crisis pregnancy center called Choices Pregnancy Center (CPC)—to act as the “guardian ad litem of Arizona’s unborn children.”
The ruling was overturned by Arizona’s Court of Appeals shortly thereafter, but Hazelrigg then appealed to the Arizona Supreme Court asking them to overturn the court of appeals’ decision and declare the 1864 ban binding law.
Notably, CPC has received funding from the anti-abortion/anti-LGBTQ+ group Focus on the Family and the National Christian Charitable Foundation (NCCF), a donor-advised fund that serves as a conduit to keep donors secret.
Despite Ohioans voting to enshrine abortion access into the state’s constitution, Ohio’s attorney general and RAGA member, David Yost, along with the GOP state legislature, have acted as roadblocks to rolling back anti-abortion laws and to the implementation of new laws to guarantee abortion access in practice.
ADF, via Erin Hawley, secretly helped draft Mississippi’s anti-abortion law with then-Mississippi Attorney General Lynn Fitch, a RAGA member. That was the law used by the far-right faction of the U.S. Supreme Court to overturn Roe. Fitch also has other direct financial ties to Leonard Leo’s Concord Fund.
Far-right attorneys general have also filed amicus briefs in key anti-abortion court cases at the state and federal levels, including in the Dobbs case and the mifepristone case. Sixteen state AGs who are RAGA members filed a brief in the Arizona Supreme Court abortion case.
State Supreme Court Takeovers
With Dobbs, state courts are often the last resort for people challenging extreme abortion bans imposed on them by a religious fundamentalist minority. The network of Leonard Leo—who has had control of more than $2 billion to turn our rights back—and other far-right forces are targeting state supreme courts for that very reason.
A new report by True North highlights the main players involved in this takeover, with new revelations about Leonard Leo. The report details the super-rich men trying to change the rules by spending big to capture state courts, including fossil fuel billionaire Charles Koch, Uline shipping billionaire Dick Uihlein, and hedge fund billionaire Jeffrey Yass, in addition to a quartet of groups created by anti-LGBTQ+ bigot James Dobson: Focus on the Family, Family Research Council, Family Policy Alliance, and Alliance Defending Freedom.
Two far-right justices, backed by Leo, referenced the Comstock Act suggesting that this 1873 law could be used to stop abortion pills from being mailed.
Many of these actors are influential in Arizona, where all four members of the state Supreme Court who voted to uphold the regressive abortion ban have ties to Leo’s Federalist Society—a network of lawyers that Leo, who co-chairs the board, has used as a pipeline for a political machine to fulfill his regressive agenda.
- Chief Justice John R. Lopez is a contributor, frequent speaker, and member of the board of directors for the Phoenix Chapter of the Federalist Society.
- Clint Bolick, who has been labeled the most extreme justice on the court, is also a contributor and a “longtime friend of the Federalist Society” whose trips to its events have been covered by the group, according to Bolick’s disclosures. True North’s report lists Bolick as having spoken more than 70 times before the group.
- Another Arizona Supreme Court, James P. Beene, also lists having traveled to Federalist Society events in his disclosures, as has Justice Kathryn King, who is also a Federalist Society member.
In 2016, the GOP state legislature expanded the state Supreme Court from five to seven members to further secure its right-wing majority there even as the state became more racially, ethnically, and ideologically diverse.
Arizona’s then-GOP governor Doug Ducey, who appointed a majority of the state Supreme Court and a record number of state judges, told a Federalist Society audience in 2019 that he had spoken with Leonard Leo and told him, “The Federalist Society has now fixed the judicial branch.” Fixed—with so many of these judges ruling Leo’s way on abortion and more.
Other billionaires attacking the courts have also backed this effort through the state legislature. Charles Koch’s Americans for Prosperity has contributed $155,875 in outside spending to support J.D. Mesnard, the Republican state senator who sponsored the bill to expand Arizona’s Supreme Court. Mesnard also benefited from over $17,000 in outside spending from the Center for Arizona Policy (CAP), a Family Policy Alliance state ally, and its 501(c)(4) the Center for Arizona Policy Action. CAP also filed an amicus brief in the Arizona abortion ban case.
Not only has “leaving it to the states” led to dangerous abortion bans, but it also does not preclude a national abortion ban.
During last month’s Supreme Court mifepristone hearing, we saw two far-right justices, backed by Leo, reference the Comstock Act, suggesting that this 1873 law could be used to stop abortion pills from being mailed: Alito, who Leo literally maneuvered onto the Court; and Thomas, who Leo has maneuvered to keep on the Court by connecting him to billionaires, and who has called Leo the third most powerful man in America.
In Arizona and across our country, anti-abortion groups, judges and lawyers affiliated with Leonard Leo’s network, and other religious fundamentalist groups backed by secret donors, are at the center of the fight to take our reproductive freedoms away. Unmasking these efforts is just part of the fight to counter such extremists.
True North’s executive director, Lisa Graves, contributed to this article.
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