A recent exposé by The New Yorker dropped a bombshell about the organization that may now be the most important in the antiabortion movement: the Alliance Defending Freedom, a conservative Christian litigation group with a string of Supreme Court wins and a $104 million dollar budget in 2022. Alan Sears, a long-term leader of the group, told the New Yorker of his hopes that one day, Americans would “say the birth control pill is a mistake.”
Sears’ comment contrasts with ADF’s successful public relations strategy: claiming to defend merely the right to conscience of conservative Christians. The history of strategies like the ADF’s make clear that today’s conscience arguments can underwrite future bans, even on birth control itself.
The Dobbs decision has become central to the defense of laws banning gender-affirming care for minors, many of which ADF had a hand in drafting.
Conscience arguments are the most familiar among conscientious objectors to war, but in the 1970s, antiabortion lawyers repurposed them to carve out exemptions for medical professionals who did not want to participate in abortions. At the beginning, these conscience rules enjoyed bipartisan support: a right to conscience resonated with both progressives committed to pluralism and conservatives uncomfortable with legal abortion. But soon, abortion opponents found new uses for these arguments for conscience: Antiabortion lawyers and politicians relied on such arguments to support the Hyde Amendment, a ban on Medicaid reimbursement for abortion. Reimbursing Medicaid patients with taxpayers’ money, they argued, violated the conscience of those with objections to abortion. Their solution: ban all reimbursement for all low-income patients—and suggest that the ban actually helped Medicaid patients by forcing them into a better choice.
ADF is different from the first generation of antiabortion groups: it is openly Christian, and focuses on issues beyond reproduction. It has also made conscience arguments even more central to its work. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in 2018, ADF claimed to defend the religious liberty of a baker who did not wish to bake a cake for a same-sex marriage. In 303 Creative v. Elenis, decided earlier this year, ADF convinced the Supreme Court that the Constitution permitted a Christian website designer to refuse to serve same-sex couples.
Conscience arguments have also transformed legal fights about birth control. ADF played a central role in fighting the contraceptive mandate of the Affordable Care Act, which required employers to cover all FDA-approved contraceptives without co-pay. In 2014’s Burwell v. Hobby Lobby, ADF defended employers who believed that common contraceptives, including IUDs and the morning-after pill, to be abortifacients. The group has framed this cause as a fight for pluralism: just as the law should not force anyone not to use contraception, the law should not force employers to subsidize a pill they believe to kill a rights-holding fetal person.
Sears’ comments show that conscience claims can be the cornerstone of a new conservative incrementalism that erodes access to birth control and lays the groundwork for a future ban. In Hobby Lobby, ADF already created the foundation for this new strategy: suggesting that religious employers had a sound reason for objecting to birth control drugs that might be abortifacients. Other powerful antiabortion groups, like Students for Life, take the same position, suggesting that common forms of birth control actually prevent the implantation of a fertilized egg and thus qualify as abortion drugs.
The Dobbs decision overturning Roe v. Wade and the ADF’s work against transgender rights have provided the group with an equally important resource for anti-birth control incrementalism: history and tradition as a limit on constitutional rights. The Dobbs ruling rejected the idea of a right to choose abortion by stressing that it is not deeply rooted in our nation’s history and tradition, understood to mean the years around 1868, when the Fourteenth Amendment was ratified. The “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives. Dobbs has become central to the defense of laws banning gender-affirming care for minors, many of which ADF had a hand in drafting. Parents who have pushed back against these laws have argued that the Constitution protects parents’ rights to make decisions in their children’s own best interest. Courts sympathetic to ADF responded that after Dobbs, the Constitution recognizes only rights that are deeply rooted in history and tradition—and that because gender-affirming care is new and experimental, there can be no deeply rooted right for parents to seek out that care for their children. It would not be hard for ADF to make the same argument about birth control in the future. Some abortion opponents will argue that Dobbs already addressed the issue when it comes to many drugs—including the birth control pill—because those drugs count as abortion. But the “history and tradition” argument can apply even to drugs that even abortion opponents may concede are contraceptives. It was in the late nineteenth century, after all, that many states began criminalizing contraception, and that the federal government passed the Comstock Act, which made it a federal crime to mail contraceptives. This kind of evidence convinced the Supreme Court’s conservative supermajority that there was no right to abortion. ADF knows that at some later point, similar evidence might convince the Court that there is no right to contraception either. In the short term, access to birth control is likely to remain unchanged. In the longer term, however, ADF has made clear that it is far from safe. And anyone looking to predict how the attack on it will unfold knows just where to look: fights about sexual orientation, gender identity and the right to conscience.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession." 
