Julia Bourkland, Research Assistant, and Ashley Underwood, Director | February 29, 2024 Blog Post

Has the anti-abortion movement weaponized the judicial branch to enforce its agenda? Of course it has. The Supreme Court of the United States’ (SCOTUS) ethical state-of-play is particularly concerning given the justices will be hearing oral arguments on the two biggest post-Roe reproductive rights cases so far. In March, the court will hear a case that will determine access to mifepristone, one of two medications used in medication abortion care, which is the most widely used method of abortion. And in April, the court will hear arguments on whether hospitals in abortion-banned states are required to provide life-saving, medically necessary abortion care under the federal law Emergency Medical Treatment and Labor Act (EMTALA). It’s an open secret that many within the federal judiciary as well as elected state judges are deeply committed to the conservative movement and religious right’s agenda to control people’s lives and curb social progress. Ahead of an important SCOTUS docket, let’s take a closer look at the financial and social ties between judges and anti-abortion groups.

Recent ethics issues within the judicial branch are not anomalies. Unfortunately, the Code of Conduct newly adopted by SCOTUS has been flimsy in enforcement, and will likely do little to bolster the public’s confidence in the Court. To be clear, an ethics code for the body that removed the constitutional right to abortion in the U.S. is long-awaited and comes after several months of investigations into undisclosed financial ties with conservative donors, gifts, and trips. Headlines of anti-abortion ties on the bench are indicative of the anti-abortion movement’s strategy to weaponize the judicial branch to enforce an anti-reproductive freedom agenda, which was in motion well before Dobbs v. Jackson Women’s Health Organization. Beyond SCOTUS, there have been several reports of federal and state judges with murky anti-abortion financial and social ties. These are the people hearing arguments and deciding key outcomes influencing the country’s reproductive health and abortion access landscape. 

Six months after POLITICO published the leaked draft of Dobbs, the New York Times reported allegations from Reverend Rob Schenck, reformed anti-abortion activist of Operation Rescue, who alleged that Martha-Ann Alito, wife of Justice Alito, leaked the decision of Burwell v. Hobby Lobby. This landmark decision – which Alito wrote the majority opinion for – exempted privately held companies from the Affordable Care Act’s contraceptive mandate. From 1995 to 2018, Schenck ran the group Faith and Action in the Nation’s Capital near the U.S. Supreme Court, which recruited wealthy donors to wine-and-dine justices for the purposes of pushing SCOTUS toward more anti-abortion, anti-LGBTQIA+, and anti-human rights decisions. Schenck testified before the House Judiciary Committee in December 2022 and revealed details about Operation Higher Court, a strategy his former organization employed to “gain insights into the conservative justices’ thinking, and to shore up their resolve to render solid, unapologetic opinions, particularly against abortion.” Schenck says that one prominent donor couple of Faith and Action regularly paid for high-end dinners with Clarence and Ginni Thomas, Samuel and Martha-Ann Alito, and Antonin and Maureen Scalia.

Then there are the headlines from the U.S. Courts of Appeals. A particularly egregious example is federal judge for the U.S. Fifth Circuit Court of Appeals James Ho, a Trump-appointee who sat among the three-judge panel deciding the legality of the FDA’s approval of mifepristone in FDA v. Alliance for Hippocratic Medicine, a case being argued by Alliance Defending Freedom (ADF) – a group whose influence we delve into in later paragraphs of this blog. Judge Ho is a Federalist Society member and former clerk to Clarence Thomas, who was sworn into the Fifth Circuit Court of Appeals at GOP megadonor Harlan Crow’s private library. Although Judge Ho’s wife, Allyson Ho, has frequently participated in events with and accepted honoraria from the ADF, Ho refused to recuse himself from the case, asserting that he had “consulted the judiciary’s ethics advisor prior to sitting in this case and was advised that there was no basis for recusal.” While technically his recusal was not required, it certainly raises questions of impropriety (the U.S. Code of Conduct for federal judges explicitly states that family, financial, and other ties should not influence their decisions). Ultimately, the Fifth Circuit ruled that mifepristone could no longer be provided by mail and limited its use to the first seven weeks of pregnancy. Judge Ho wrote in his own opinion that doctors incur an “aesthetic injury” from performing abortion care.

Coincidentally, Judge Ho is affiliated with Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas. The two were scheduled to speak at an August 2023 event hosted by the Federalist Society chapter of Texas A&M University School of Law Texas. This was an event held shortly after the Fifth Circuit’s three-judge panel decision. Prior to sitting on the bench, Kacsmaryk worked in anti-LGBTQIA+ rights and anti-abortion litigation. He is also connected to Senator Josh Hawley, who voted to confirm Kacsmaryk to the federal bench and his wife, Erin Hawley, who representing Alliance Defending Freedom, argued the mifepristone case before him. Not surprisingly, Kacsmaryk donated $500 to Senator Hawley’s campaign in 2018.

The conservative and religious right have played the long game to obstruct access to fundamental freedoms via the judicial system. Five SCOTUS Justices, including Trump’s three appointees – Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Thomas, and Alito – are all connected or have been connected to the Federalist Society. Not to mention Chief Justice John Roberts was previously a member of the Washington, DC chapter. Founded in 1982, the Federalist Society is a 90,000-member pipeline for conservative attorneys to go on and sit on the federal bench, serve in government appointments, and demolish human rights through legal advocacy and originalism scholarship – the very same scholarship cited in SCOTUS opinions like Dobbs. More than 40 of Trump’s 54 appellate court nominees have at some point been members of the organization. The New York Times reported that one study showed 56 percent of all Trump-appointed judges were Federalist Society members. Moreover, Kacsmaryk, the lower-court federal judge trying to gut mifepristone access, cofounded a Federalist Society chapter in Fort Worth, Texas. The organization’s aggressive agenda is sponsored by their former Vice President Leonard Leo, the mastermind behind SCOTUS’ conservative supermajority who handpicked SCOTUS nominees. A new report from Accountable.US shows that over ten years, seven of Leo’s nonprofit organizations (the Federalist Society as well as the Judicial Crisis Network/Concord Fund, Wellspring Committee, America Engaged, BH Fund, 85 Fund/Judicial Education Project, and the Freedom and Opportunity Fund) routed $104 million to his for-profit public relations firm, CRC Advisors. 

It is not a stretch to describe the Alliance Defending Freedom (ADF) as the legal advocacy arm of the religious right. ADF is an anti-abortion and anti-LGBTQIA+ hate group that, as mentioned previously, is representing Alliance for Hippocratic Medicine (AHM) in the SCOTUS case set for oral arguments this spring, in which AHM is attempting to gut mifepristone access. ADF also drafted the first-in-the-nation 15-week abortion ban in Mississippi at the heart of the Dobbs decision. Setting the scheme to overturn Roe, ADF specifically created model legislation for the purpose of overturning Roe – ADF’s goal was to instigate a lawsuit that would make its way to the U.S. Court of Appeal for the Fifth Circuit and then to SCOTUS. ADF will also feature at the U.S. Supreme Court this spring in the EMTALA case as well as argue before the Fifth Circuit Court of Appeals in Texas v. Xavier Becerra. The organization has also been the legal group behind many other milestone cases that have regressively shaped human rights in recent years, including the aforementioned Burwell v. Hobby Lobby as well as National Institute of Family and Life Advocates v. Becerra (more below), Gonzales v. Carhart, McCullen v. Coakley, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and 303 Creative LLC v. Elenis.

Still, there are more anti-abortion and anti-LGBTQIA+ legal advocacy organizations connected to the judicial system.

  • The Thomas More Society, an ultra-conservative, Catholic public-interest law firm based in Chicago, litigates to erode abortion and LGBTQIA+ rights. Trump-nominated federal judge Sarah Pitlyk previously served as special counsel to the Thomas More Society, where she worked on several anti-abortion cases and represented anti-abortion activist David Daleiden. 

  • First Liberty Institute, a Texas-based Christian-right legal organization, and former employer of Judge Kascmaryk, who worked there from 2014 until his federal judge appointment in 2019. The Southern Poverty Law Center-designated hate group Liberty Counsel litigates to push anti-LGBTQIA+ activity and subsumed Schenck’s Faith and Action group in 2018. Last fall, Florida Governor Ron DeSantis selected a Liberty Counsel lawyer for a state district court of appeals judgeship. 

  • The Becket Fund for Religious Liberty, also referred to as Becket Law, is a public interest law firm well known for serving as counsel in Burwell v. Hobby Lobby. Trump appointed former Becket Law general counsel Kyle Duncan to the U.S. Fifth Circuit Court of Appeals. 

  • The Judicial Crisis Network (JCN) (officially filed as the Concord Fund), has been reported as playing a critical role in capturing the federal judiciary, spending millions of dollars for advertising in support of then-SCOTUS nominees Gorsuch and Kavanagh as well as smear campaigns against Obama-era SCOTUS nominees (such as now U.S. Attorney General Merrick Garland with a multi-million dollar digital campaign) and Biden’s federal judge nominations (such as now Supreme Court Justice Ketanji Brown Jackson with a $2.5 million campaign). Conceived in part by Leo during the George W. Bush years, JCN is operated by Carrie Severino, former clerk to Justice Thomas and wife of former director of the Department of Health and Human Services Office for Civil Rights Roger Severino (who himself was previously employed at the Becket Fund and has received thousands of dollars in honoraria from both the Federalist Society and the ADF). JCN has received millions of dollars in grants from another Leo entity, Rule of Law Trust.

  • Freedom of Conscience Defense Fund, a smaller legal organization, was founded by Charles LiMandri, who is also an allied attorney of ADF and at one point represented Daleiden.

Thomas More Society and ADF are also active at the state-level. Thomas More Society, on behalf of plaintiff, Pro-Life Action League, reached an agreement with Illinois Attorney General Kwame Raoul to settle a lawsuit challenging newly expanded protections for consumers from deceptive anti-abortion center (AAC) marketing and practices. The law would have protected the public under an amended Consumer Fraud and Deceptive Business Practices Act and fined AACs for their lies. Even before the lawsuit came about, the law was blocked by a federal Judge Lain Johnston, who snubbed the protective measures as “stupid and very likely unconstitutional.” His comments are a blatant example of how the right’s constitutional views are used to solely bolster their efforts while stampeding on everyone else's. There are more examples of these groups working in progressive states to block reproductive health protections and access, such as in New Jersey, where Alliance Defending Freedom unsuccessfully sued to block state Attorney General Matthew Platkin’s investigation of an NJ-based AAC network, First Choice Women’s Resource Centers, on the basis of possible consumer fraud. And in Colorado, where the first law attempting to halt promotion of medically unsound “abortion pill reversal” was challenged by a state-based AAC operator represented by the Becket Fund for Religious Liberty. 

The aforementioned groups are not working alone. National Institute of Family and Life Advocates (NIFLA), is an anti-abortion organization providing legal counsel and defense to affiliated anti-abortion centers. The organization might be best known for NIFLA v. Becerra, the 2018 SCOTUS case which struck down California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act and ruled AACs can spread dis/misinformation and falsely represent themselves under First Amendment rights. As expected, NIFLA was represented by ADF. Under precedent set by NIFLA v. Becerra, operators of AACs have asserted freedom of speech protections as a means to continue their deceit and manipulation. This decision is a direct result of Operation Higher Court, and would not have been possible without anti-abortion legal organizations’ influence on the highest court.

In addition to the federal court judiciary system, state-level judges and popularly elected officials such as state attorneys general working to enforce laws as members of the criminal legal system are not immune to outsized influence from the antis. Acting in their official capacity, Attorney Generals from Tennessee, Iowa, Kansas, Mississippi, Missouri, South Dakota, Utah, Virginia, and West Virginia co-hosted a multi-state donation for anti-abortion centers. An additional example of how Attorney Generals have aggressively acted in the name of their allegiance to their personal, anti-abortion beliefs includes: the same group of state attorneys general in the AAC fundraiser cohosted by Tennessee Attorney General Jonathan Skrmetti and Mississippi Attorney General Lynn Fitch signed a letter to Yelp demanding the company not flag AACs’ deception. A federal judge dismissed Yelp’s lawsuit against Texas earlier this year. 

This sort of activity undermines systems and offices that, under ideal circumstances, are in place to ensure justice and protect the rights of their constituents. While everyone is fully entitled to their personal beliefs and ethics, those in public office are called to the higher standard of acting on the will of the people and ensuring that laws are interpreted without biases. Instead, what we see is that these offices can be occupied by ideologues intent on employing an agenda crafted by a well-funded network intent on enforcing their hateful agenda on us all.

The Stakes

The capture of the federal judiciary, state courts, and popularly elected law enforcement leaders threatens several upcoming and recent abortion-related cases across the country. Forthcoming, the U.S. Supreme Court will review the aforementioned FDA v. Alliance for Hippocratic Medicine. SCOTUS will also review the aforementioned Idaho v. United States, which will decide if medical providers will be allowed to administer abortion care to pregnant people in emergency situations under EMTALA. This year in Florida, a DeSantis-stacked state Supreme Court will determine if a constitutional amendment attempting to protectively establish access to abortion up until the point of viability can be added to the ballot. Florida’s court will also decide the legality of the state’s currently implemented 15-week ban. And mere days ago, Alabama’s Supreme Court ruled that frozen embryos can legally be considered children under state law, which ADF called “a tremendous victory for life.” This ruling in LePage v. Center for Reproductive Medicine will not only adversely impact Alabamians depending on IVF to expand their families, leaving them in limbo, but also IVF patients across the country. 

In a concurring opinion for that decision, Alabama Chief Justice Tom Parker (a dangerous figure in the personhood movement and key actor in building up anti-abortion scholarship to overturn Roe) wrote that “[a] good judge follows the Constitution instead of policy, except when the Constitution itself commands the judge to follow a certain policy. In these cases, that means upholding the sanctity of unborn life that exists outside the womb.”

Appointed judges with explicit or concealed ties, both financial and social, to the anti-abortion movement should not be able to mold the U.S. reproductive rights landscape. These ties negatively shape reproductive health outcomes for people across the country, and thereby hinder our ability to achieve reproductive justice for all. A biased court of law should not have the power to determine individuals’ personal bodily autonomy and ability to thrive in the lives they build for themselves – that human right is indisputable. Despite how the Samuel Alitos and Matthew Kacsmaryks of the world try to control access to reproductive health care, these decisions should be up to each of us as fully autonomous individuals.

What protections can the public expect under a compromised justice system in which law enforcement and judges are no longer for the people, but acting on behalf of the powerful minority of bad-faith, anti-abortion forces? In order to ensure our human rights are no longer eroded by federal and state courts, as well as elected officials such as attorneys-general, we must heed the call to action to reform the courts to ensure our appointed and elected officials are working toward justice. The future may seem uncertain, but one thing’s clear: some judges are no longer championing the people's rights but are instead aligning with divisive values. By revamping our judicial system, we can reorient it towards serving justice for all, not just the privileged few.

Recommended Readings

Acknowledgments

The authors would like to thank former Equity Forward research intern Mario Sto. Domingo, who crafted a pitch that inspired this piece.

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For related information on anti-abortion, anti-LGBTQIA+, and other extremist hate in the U.S. federal judiciary and state courts, please check out our other research:

Abortion Anti-LGBTQIA+ Courts Human Rights