The Christian legal movement flexes its post-Roe muscles
How pro-life activists are testing the waters of a new legal regime
As the dust settled following Dobbs v. Jackson Women’s Health, last year’s Supreme Court decision that overturned Roe v. Wade and threw out the constitutional right to abortion, it was impossible not to wonder, “What’s next for the pro-life movement?” Pro-life activists had made opposition to Roe central to their advocacy for decades; after winning the ultimate prize in unequivocal fashion, what would they do for an encore?
Those familiar with the pro-life movement knew any victory lap would be short. Overturning Roe was a necessary condition for anti-abortion advocacy, but it was hardly sufficient. In many respects, with the biggest hurdle to dismantling legal abortion out of the way, the real work could begin.
Over the last few months we’ve started to see what this work will look like moving forward, at least in the courts. Alliance Defending Freedom, probably the most influential organization in the Christian legal movement, filed a federal lawsuit objecting to the Food and Drug Administration’s regulations concerning mifepristone, the drug at the heart of the majority of prescription abortions. In layman’s terms, the suit alleged that the FDA had not followed proper protocols and rules in approving and overseeing the drug. ADF asked Judge Matthew Kacsmaryk to prohibit further distribution of the drug.
I recently spoke to NPR’s Here and Now about the judge’s decision, which ruled for ADF.1 I see this lawsuit as the Christian legal movement and their allies in the pro-life community flexing their muscles following Dobbs, determining what kinds of arguments will stick now that Roe is off the books. Judge Kacsmaryk was definitely sympathetic to these arguments, and in many ways was the perfect judge for this lawsuit — he is a veteran of the Christian legal movement,2 and his opinion uses language and framing in line with standard pro-life rhetoric.
Most importantly, Kacsmaryk’s decision teases the possible future of pro-life legal strategy: Fetal personhood. This is the idea that the 14th Amendment’s protections for life and liberty ought to apply to fetuses as they do to everybody else. Under such an interpretation of the 14th Amendment, abortion would essentially be banned nationwide. This kind of constitutional scrutiny, Kacsmaryk wrote, “arguably applies to the unborn humans extinguished by mifepristone — especially in the post-Dobbs era.”
We have a ways to go before the Supreme Court weighs in on the question of fetal personhood. It remains to be seen whether such an argument will even reach the Court. But the wind is at the back of the Christian legal movement and pro-life community. They have more tools in their legal arsenal than ever before, following Roe’s demise and a relatively friendly judiciary. Time will tell how they deploy them.
The decision has since revised by the Fifth Circuit Court of Appeals, and the issue will almost certainly be decided by the Supreme Court.
Prior to his nomination to the U.S. District Court for the Northern District of Texas, Kacsmaryk was deputy general counsel at First Liberty Institute.