Who is behind the latest attack on access to abortion even in emergencies? Some of the same players trying to impose their religious worldview on others.
Just days before what would have been the 51st anniversary of Roe v. Wade, the U.S. Supreme Court allowed Idaho to continue its near-total abortion ban despite federal rules that require hospitals protect patient’s health in medical emergencies.
In April, the nation’s highest Court will hear Idaho v. United States and Moyle v. United States, a pair of cases that will determine whether the Emergency Medical Treatment and Labor Act (EMTALA) preempts state laws that impede emergency abortions needed to protect the health of pregnant people even if they are not on the brink of death.
Both of these cases have ties to the main anti-abortion zealots that helped overturn Roe: Leonard Leo and Alliance Defending Freedom.
Anti-Abortion Extremists Play Politics in Idaho
On Aug. 25, 2020, Idaho passed an anti-abortion trigger law, called the Defense of Life Act (DOLA), which would immediately criminalize almost all abortions if Roe were overturned. That law was passed just weeks before Justice Ruth Bader Ginsburg died.
At the time, Donald Trump had already appointed two men hand-picked for the Court by Leo and strongly endorsed by anti-abortion groups: Neil Gorsuch and Brett Kavanaugh. Within weeks of Idaho’s new law, the Republican-controlled Senate rammed through another appointee selected by Leo, Amy Coney Barrett, even though Americans were already voting in the 2020 presidential election that Joe Biden won.
When the Republican-appointed faction that now dominates the Court overturned Roe in mid-2022, Idaho’s extreme anti-abortion law went into effect. It makes it a felony for doctors in the state to provide abortions to people in serious medical distress unless they are about to die.
Two weeks later, the Biden administration issued guidelines to protect medical providers, regardless of state law, under EMTALA. That law, first passed in 1986, requires hospitals that receive federal Medicare reimbursements to treat patients seeking emergency medical care. That federal law applies to almost all hospitals.
As America saw recently in the case of Kate Cox, whose fetus had a fatal condition that was also compromising her health and chance for future pregnancies, Texas did not protect the life or health of the mother.
GOP-elected officials in Idaho challenged this federal rule in two cases the Supreme Court is considering.
The first case has been brought by Idaho Attorney General Raúl Labrador, who was elected in 2022. He is a member of the Republican Attorneys General Association (RAGA), whose largest funder is Leonard Leo’s Concord Fund. According to IRS filings, the Concord Fund has given RAGA $7 million since 2020. Leo also personally contributed to Labrador’s campaign during his primary challenge to Lawrence Wasden, who had been the state’s AG for 20 years. Wasden had refused to join the lawsuit of Texas Attorney General Ken Paxton to try to overturn the 2020 presidential election to aid Trump’s discredited claims. When he was a member of Congress, Labrador co-founded the right-wing Freedom Caucus and supported Trump’s presidential bids.
Since his 2023 swearing in, Labrador has used his role as Idaho’s AG to advance his personal anti-abortion views. With a dangerous near-total abortion ban already in place, Labrador even unsuccessfully tried to use his power as the state’s top law enforcement official to keep doctors from referring patients to legal, out-of-state abortion care.
As a long-time politician, Labrador has little real litigation experience and outsourced the state’s defense of Idaho’s law to a group called Alliance Defending Freedom (ADF), which was founded 30 years ago by televangelists. The Southern Poverty Law Center has designated ADF as a “hate group.” ADF has been at the forefront of the campaign to end abortion healthcare in the U.S. ADF wrote the legislation for Mississippi’s anti-abortion law that led to Dobbs—though the bill was publicly touted before the Court’s ruling as the product of a state legislator.
In fact, it was Erin Hawley who played a central role in orchestrating the Dobbs litigation to reverse Roe. She is married to Josh Hawley, who tried to stop the certification of Biden as president and then ran when Trump’s violent mob breached the U.S. Capitol on Jan. 6, 2020. It is Erin Hawley’s signature on the contract with Labrador to represent Idaho in the litigation the Court is now considering. She has been aiding ADF for years. She clerked for Chief Justice John Roberts. (Another lawyer on the case, Matt Bowman, clerked for Justice Sam Alito, who wrote the Dobbs opinion that echoed claims made by Hawley.)
ADF has also sought to ban the medicine mifepristone (RU-486), the most commonly used method of abortion in the U.S., by filing a lawsuit against the U.S. Food and Drug Administration, which approved the drug as safe more than two decades ago.
Labrador also hired the law firm Cooper & Kirk to defend Idaho’s dangerous abortion ban. The co-founder of Cooper & Kirk also has a long-standing relationship with Justice Alito. Alito worked under Charles Cooper for years in the Office of Legal Counsel in the U.S. Department of Justice.
When the Supreme Court rules on the Idaho case, Americans will see if the right-wing faction Leonard Leo helped get installed on the Court continues to use the law to impose its religious worldview on Americans.
The second suit against EMTALA is brought by Idaho’s Speaker of the House Mike Moyle and Chuck Winder, the leader of the state Senate.
Notably, Winder previously sponsored a bill to require Idahoans to have an ultrasound before being eligible to receive abortion care. Patients would then be given a list of “medical providers,” although most of the entities on the list were not medical providers, but “crisis pregnancy centers” (CPCs). These types of groups’ exist to convince people not to have an abortion. CPCs are often accused of spreading disinformation about abortion and usually do not employ doctors, like a real medical facility.
In his closing argument in support of the bill, Winder suggested women lie about being raped to get abortions, questioning whether they have been “truly raped.” Under Idaho’s current anti-abortion law, there are exceptions for rape and incest, but survivors are required to file a police report to access abortion care.
The law firm representing Moyle and Winder is Consovoy McCarthy. One of the firm’s partners, Tyler Green, is one of only three trustees listed for the Marble Freedom Trust—a $1.6 billion trust given to Leonard Leo in 2020 by anti-abortion billionaire Barre Seid.
Additionally, 29 anti-abortion groups jointly authored an amicus brief in support of Idaho, some of which also have direct financial ties to Leonard Leo.
The brief was submitted by prominent anti-abortion supporter Mike Pence’s Advancing American Freedom (AAF). In the most recently available IRS filing, AAF received $500,000 from Leo’s Judicial Crisis Network. Another filer, the American Conservative Union Foundation (ACUF) also has ties to Leo, whose 85 Fund gave ACUF $25,000 in 2022.
Another filer, Students for Life of America (SFLA) received $60,000 from the Catholic Association Foundation (CAF), a core group in Leo’s network. CAF was also used to funnel money to Alliance for Hippocratic Medicine (AHM)—the group at the center of the abortion pill (mifepristone) case that the Supreme Court’s right-wing justices have selected to hear this term. Additionally, Leo has chaired SFLA’s board of directors and sat on its board for years, while the group’s funding has dramatically increased.
SFLA has a long history of taking extreme anti-abortion positions, which also extends to contraception. Kristan Hawkins, president of SFLA, is on record stating she thinks the birth control pill should be illegal.
Susan B. Anthony Pro-Life America (SBA-PLA) also lauded the Court’s decision to keep Idaho’s anti-abortion law—a law that quite literally puts Americans lives at risk–in effect while the Court considers the cases. SBA-PLA has received funding from various groups within Leo’s network over the years.
Marjorie Dannenfelser, head of SBA-PLA, issued a press release which asserted that, “24 states have laws protecting babies in the womb from brutal abortions, and every one of them also ensures life-saving care for pregnant mothers during medical emergencies. This includes Idaho and Texas…” (The Court is also considering a similar challenge to EMTALA by Texas.)
However, as America saw recently in the case of Kate Cox, whose fetus had a fatal condition that was also compromising her health and chance for future pregnancies, Texas did not protect the life or health of the mother. That state’s Supreme Court ignored her doctor’s advice and declared that Cox did not qualify for an abortion, forcing her to travel outside of the state for emergency medical care. (Three Texas Supreme Court justices are up for election this year.)
Idaho’s abortion ban has driven OB-GYNs out of the state—because, for them, treating patients with nonviable pregnancies, where the fetus is not expected to survive, puts them and their patients in physical danger and under severe emotional distress. Research has shown that post-Roe, OB-GYNs have felt extreme anxiety as they have been forced to weigh the potential legal penalties for providing their patients with a moral and clinical duty of care.
The argument that Idaho’s near-total abortion ban somehow values life and children is hard to square with the actions of a state where the GOP-led legislature failed to expand postpartum Medicaid coverage and turned down federal funding for childcare.
Idaho is also the only state in America without a legal requirement to track and review the state’s maternal mortality rates. Idaho’s decision to disband its Maternal Mortality Review Committee in July of 2023 seems designed to obscure the effects of its abortion restrictions. The U.S. already has the highest maternal mortality rate among industrialized nations, with rates worsening post-Dobbs.
Dobbs has provoked a sustained backlash in the elections that followed it, as Americans have repeatedly rejected dangerous and repressive abortion bans and the candidates backing them. This has not stopped far-right dark money groups, the judges they helped put in power, and their other benefactors from attempting to impose their personal religious will over Americans’ who wish to maintain freedom to control their bodies and futures.
When the Supreme Court rules on the Idaho case in a few months, Idahoans and other Americans will see if the right-wing faction Leonard Leo helped get installed on the Court changes course or continues to use the law to impose its religious worldview on Americans, despite the demonstrably dire consequences and even though most people oppose that extreme agenda.
Alyssa Bowen, director of True North Research’s Equality Project, contributed to this story.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
