Here's the Surprising Backstory of the Downfall of Roe v. Wade

[Valin]

Real Clear Investigations

Mark Hemingway
July 6, 2022

Erin Hawley didn’t know that she would help make history when she took a job in February with the conservative legal group, Alliance Defending Freedom. Two months later, the former law professor was on a plane to Mississippi to serve as co-counsel with the state’s attorney general, Lynn Fitch, and its solicitor general, Scott Stewart, to win the most momentous Supreme Court case in half a century – the overturning of Roe v. Wade.

“I think it was really meaningful for me because I had a 6-month-old that I actually took to Mississippi to that meeting,” Hawley said of her efforts to end the constitutional right to abortion. “It made why Dobbs matters really concrete, to be talking about this legal strategy and these issues with a baby in tow.”

The role of Hawley, wife of Republican Sen. Josh Hawley of Missouri, and the central role played by the Alliance Defending Freedom, are part of the untold story behind the case that overturned Roe and Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization. Their relative anonymity was not an oversight, but instead part of a deliberate strategy reflecting the political sensitivities of today’s partisan political landscape.   

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In this respect, the Dobbs victory is the result of embracing an activist legal strategy that many conservatives who care about constitutional order haven’t been entirely at ease with. But other conservative activists have long argued the pro-life movement was a moral cause on par with the civil rights movement – and ignoring the strategies commonly used to get the Supreme Court’s attention would amount to unilateral disarmament in a lot of important legal battles. “The fact that you're percolating those issues up to the Supreme Court is sending a message to the court, this is coming, this is coming, this is coming, you’ve got to deal with this,” says Waggoner. “And it creates this momentum, that isn't just a momentum in the law, but a momentum in the culture.”

Whatever Dobbs portends for the future of conservative legal strategy, after six years of careful legal maneuvering it’s hard to argue with winning the biggest Supreme Court case in five decades. “I lost a lot of sleep,” says Waggoner. “I think it felt like a dream in certain moments – an almost unrealistic dream that was too big to even imagine.”