Meet the Woman Behind the Court Ruling Overturning Roe v. Wade

Erin Hawley–an anti-abortion zealot who is married to controversial insurrectionist Senator Josh Hawley (R-MO)–works for two right wing dark-money groups that played an instrumental role in dismantling abortion care access in the United States. 

Hawley is senior counsel for Alliance Defending Freedom (ADF), which the Southern Poverty Law Center has identified as an anti-LGBTQ hate group. ADF not only drafted the Mississippi abortion ban that was challenged in the Dobbs v. Jackson Women’s Health Organization case that the right-wing faction controlling the U.S. Supreme Court used to overturn Roe v. Wade earlier this summer. They also defended the ban on abortions after 15 weeks following impregnation, which the Court upheld. 

Following the Dobbs decision, right-wing media reported that the state of Mississippi “strategized closely with the [A]lliance, which conceived of the successful legal reasoning behind Dobbs.” (Mississippi has one of the lowest rates of abortion in the U.S, but it has a higher than average rate of maternal death during pregnancy, especially among Black Americans–and it has the worst infant mortality rate in the U.S.)  

Some outlets presented the Mississippi law as created by a legislator who was a nurse and a mom, but right-wing media crowed, after-the-fact, that Hawley and ADF’s “relative anonymity was not an oversight and instead was part of a deliberate strategy” to avoid public scrutiny. 

Hawley was co-counsel to the state of Mississippi where she coordinated and, according to her husband, helped write the amicus briefs filed in support of the abortion ban in Dobbs. Yet, her name does not appear on any of the amicus briefs, and ADF has not publicized which briefs submitted to the Supreme Court Erin Hawley specifically helped coordinate. 

Just this past week, Hawley testified before Congress where she claimed that the elimination of bodily autonomy somehow empowers women, even though the overturn of Roe strips people of vital rights to make decisions about their own health. The reactionary proclamation by the Court that Hawley supported will likely mean an untold number of Americans will be forced to give birth against their will (and, notably, the U.S. has one of the highest maternal mortality rates in the developed world). Prior to the ruling, nearly a million Americans obtained surgical abortions a year, in recent years, and millions of Plan B-type pills have been sold in the U.S.

While not all of ADF’s funders are known, the fortune of right-wing Republicans Dick and Betsy DeVos is a long-time bankroller of ADF. The Charles Koch Institute–named for one of the richest men in the world and the leader of the second largest privately held corporation in the world–gave ADF $275,000 in 2020 (Koch Industries is not required to disclose any groups he funds through his corporation). ADF has also received large anonymous grants funneled through donor-advised funds like DonorsTrust and the National Christian Charitable Foundation. 

Erin Hawley also works for another Koch-funded dark money group, the so-called “Independent Women’s Forum” (IWF). Hawley is a “senior fellow” at the Independent Women’s Law Center, which is part of IWF. IWF paid her $617,000 between 2017 and 2020. Any amount provided in the past two years as she has played a key role in assailing women’s reproductive freedoms is not yet disclosed. (IWF asserts that it has no position on abortion; yet, several of its top staffers or fellows routinely attack abortion rights and applauded Dobbs. IWF also sent a letter to Senators and members of Congress this week opposing the Right to Contraception Act that would provide federal protections for access to birth control.)

IWF and its sister group, Independent Women’s Voice (IWV), have received more than $5 million from dark-money funded groups tied to right-wing lawyer and anti-choice zealot Leonard Leo. He is the man who curated the list of right-wingers Trump chose his Supreme Court nominees from, earning Leo the moniker “Trump’s Judge Whisperer.” Leo’s network to capture the Supreme Court and other courts and to rewrite our rights has received nearly $600 million in dark money in recent years. The primary billionaire(s) who funds this effort is kept hidden from the public, except for Koch. 

IWF was founded by three white women as Women for Judge Thomas, a group launched to back Clarence Thomas’ bid for the Supreme Court. They tried to discredit Anita Hill’s testimony about Thomas’ grotesque sexual overtures toward her, which he denied but which other Black women also accused him of. (Leo also worked on Thomas’ confirmation.)

IWF/V also played a key role in pushing for the confirmation of Neil Gorsuch, Brett Kavanaugh (IWF fellows and staffers viciously assailed Dr. Christine Blasey Ford), and Amy Coney Barrett, after they were nominated by Donald Trump. The groups’ leader even took credit for Susan Collins’ vote and speech for Kavanaugh. IWF also backed the confirmation of John Roberts and Sam Alito, claiming to the public that they would not harm the rights of women, which has been proven utterly false. IWF/V also circulated talking points used by GOP Senators to attack Justice Ketanji Brown Jackson. The entire right-wing faction that overturned Roe was backed by IWF.

Below we take a closer look at Hawley’s commentary on Dobbs in the months leading up to the decision, showing how the right-wing faction of the Court parroted many of her claims.

Stare Decisis

Stare decisis is Latin for “to stand by things decided” and constitutes a legal principle of following precedent to avoid “destabilizing the law and breeding disrespect for this judiciary as too political.” 

Hawley: “...Roe and later abortion cases are not just wrong, but egregiously so. Roe has thwarted the democratic process and made bloodsport of judicial confirmations. It has proven hopelessly unworkable. Fifty years of legal and factual development have further demonstrated how wrong Roe is. Stare decisis should be no barrier to overruling Roe.” (March 15, 2022)

Claim by Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett, pp. 5-6
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

Reality: Roe was correctly decided; it was just that the Leo-Trump appointees to the Court allowed the right-wing faction installed on the Court with the help of dark money to overturn that long-standing and regularly re-affirmed legal precedent and replace it with their personal religious views as binding law. The new extremist ruling is what has inflamed debate and deepened divisions in this country while also destroying core reproductive rights that most Americans support. 

“Originalism”

The right-wing invented the “judicial philosophy” of “originalism,” as promoted by the Federalist Society. This theory of applying the 230-year old Constitution to modern cases privileges the centuries-old perceived beliefs of landed white men over the language in the Constitution and the rights of today’s Black, women, LGBTQ+, and other Americans. 

Hawley’s claim: “The Roe Court’s blessing of a constitutional right to elective abortion up until a baby can survive outside her mother’s womb finds no basis in constitutional text, structure, or original understanding.” (Oct. 25, 2021)

Claim by Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett, p. 77: “As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” 

Reality: Roe was grounded in constitutional protection for inherent freedom that the Supreme Court recognized more than 60 years ago: that the government should not be regulating a married woman’s access to contraceptives and our Constitution should not be read to allow the state to intrude on one of the most fundamental decisions a person can make about whether or not and when to have children. In fact, for most of U.S. history, a fetus had no rights. But as Justices Breyer, Sotomayor, and Kagan detailed in their dissenting opinion, both Roe and Casey held that a state, after viability, could “regulate abortion in multiple and meaningful ways.” They went on to write that it is only prior to fetal viability that these cases determined that the State could not interfere with a woman’s “‘right to elect the procedure’ as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.” 

14th Amendment/“Deeply Rooted” Tradition

Hawley and Alito in his majority decision purport to assess whether zygotes and fetuses were considered citizens with “equal protection of the laws” when the 14th amendment was passed. Both posited that the rights protected by Roe and Casey are not “deeply rooted” in the United States. 

Hawley’s Claim: “[I]n 1868, when the 14th Amendment was passed, about 30 of 37 states had restrictions on abortion. So there simply is no historical right to an abortion, and nor is it located anywhere in the Constitution’s text, structure, or history…. [T]he history is clearly the pro-life side, and there’s no way you can make a historical argument for a deeply-rooted right to abortion.” (Nov. 30, 2021)

Claim by Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett pp. 47-48: “When it came to the most important historical fact–how the States regulated abortion when the Fourteenth Amendment was adopted–the court said almost nothing. It allowed that States had tightened their abortion laws ‘in the middle and late 19th century,’ [...], but implied that these laws might have been enacted not to protect fetal life…. Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking.”

Reality: The reality is that access to abortion is a deeply rooted practice in this country. Notably, founding father Ben Franklin published recipes to help induce abortions, dating back to the 18th century. Both Hawley and Alito chose to pick up the history of abortion during the mid-nineteenth century, when an all white, male Congress passed the14th Amendment. The abortion laws in place during the ratification of the 14th Amendment were pushed by a small group of white, male doctors who helmed the anti-abortion movement to elevate their professional status over midwives and women themselves. Prior to this anti-abortion push, some states had no laws on the books barring abortion. And even some states with anti-abortion laws in place provided a loophole to physicians by allowing “therapeutic abortions.” Meaning male physicians could still perform abortions as long as they were the ones performing them.

The Claim that Roe was Anti-“Democracy” 

Hawley and Kavanaugh in his concurring opinion claim that overturning the constitutional rights protected by Roe is “democratic” by letting states limit those rights, even though constitutional rights are inherently limits on the power of temporary majorities to abridge them. 

Hawley’s claim: “Roe also profoundly damaged our democracy. It enthroned the Supreme Court as the arbiter of national abortion policy. And it removed from public debate and legislative action one of the most important issues of our day.” (Nov. 30, 2021)

Claim in Kavanaugh’s concurring opinion, p. 5: “In sum, the Constitution is neutral on the issue of abortion and allows the people and their elected representatives to address the issues through the democratic process. In my respectful view, the Court in Roe therefore erred by taking sides on the issue of abortion.”

Reality: The Court has been engulfed in dark money, huge donations from a few very rich people to pack the Court with people eager to overturn the rights of millions of Americans. Little could be less democratic. Most Americans support access to legal abortion and support the Court following legal precedent rather than have unelected judges destroy people’s rights and insert the justices’ own personal religious preferences for the law. The edict by Kavanaugh and the other GOP-appointees also ignores how undemocratic it is for the Court to impose a right-wing Catholic view of the law that overrides secular and other religious views on the matter of when rights begin, at birth or earlier.  

Fetal Viability/Pain 

Hawley and Alito in his majority opinion and Roberts in his concurring opinion claim that fetuses experience pain and that overrides the right to have an abortion.

Hawley’s claim: “While Roe and Casey stand, courts will continue to strike down states’ attempts to protect life before viability. In an act of judicial power, those decisions take from ‘We the People’ the ability to protect unborn life—no matter what we believe or what science reveals about the dignity and humanity of unborn children.” (Nov. 30, 2021)

Claim by Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett, pp. 51-52: “The most obvious problem with any such argument [states’ rights to protect personhood and viability] is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years.”

Hawley’s claim: She argues that science has shown that a fetus may be able to feel pain at 12 weeks and “that fact alone should be enough to reverse Roe v. Wade.” (Nov 26, 2021)

Claim by Roberts in his concurring opinion, p. 4: “Consider, for example, statutes passed in a number of jurisdictions that forbid abortions after twenty weeks of pregnancy, premised on the theory that a fetus can feel pain at that stage of development… Assuming that prevention of fetal pain is a legitimate state interest after Gonzales, there seems to be no reason why viability would be relevant to the permissibility of such laws.”

Reality: As early as 2016, Alliance Defending Freedom focused on challenging what they understood to be the core foundation of Roe– the states’ asserted interest in protecting fetuses based on fetal viability (or ability to survive outside the womb) and their capacity for “pain.” Such claims disregard the health and lives of those who are pregnant. 

Anti-choice zealots, like Hawley, also regularly disregard accepted medical knowledge, including evidence that fetuses are scientifically incapable of feeling pain until much later than the zealots claim. They also regularly attempt to redefine “viability” to justify banning abortions in the second trimester of pregnancy. Hawley even attempted to redefine “abortion,” a medical procedure to end a non-viable pregnancy, to discount abortions of non-viable ectopic pregnancies in her testimony before Congress. 

Erin Hawley testifies as the GOP minority witness on the “Impact of the Supreme Court’s Dobbs Decision on Abortion Rights and Access Across the United States” on July 13, 2022 before the Senate Oversight and Reform Committee.

Other Countries’ Abortion Policies 

Both Hawley and Roberts attempt to paint U.S. abortion access as extreme, even though a large majority of countries in the world allow abortion in at least some circumstances, often in ways similar to Roe.

Hawley’s claim: “We are only one of seven countries that allow abortion until viability and that puts us in the company of China and North Korea.” (Nov. 30, 2021)

Claim by Roberts in his concurring opinion, p. 5: “Only a handful of countries, among them China and North Korea, permit elective abortions after twenty weeks; the rest have coalesced around a 12-week line.”

Reality: Globally, only two dozen countries entirely ban abortions and most of those are autocracies, yet a representative from Hawley’s ADF said in 2018 that the organization’s ultimate goal would be to ban abortions entirely unless the pregnancy poses a medical threat. Terrifyingly, another group central to overturning Roe, Students for Life Action (which has close ties to Leonard Leo), has claimed that abortions are never medically necessary to save the woman’s life and has tried to assert that religious perspective as law, despite the mountain of scientific evidence to the contrary.

Strikingly, Hawley and Roberts also hone in on the exact same countries, China and North Korea, out of the seven possible examples to list, thereby implicitly drawing comparisons between the “communism” of these countries and those that allow their citizens to freely obtain abortions. However, under Roe, the U.S. did not allow abortion on demand until birth, but instead limited barriers in the first trimester and ensured that any restrictions later in a pregnancy allowed exceptions for the health and life of the mother. That is, the comparison to China and North Korea is a misleading one. 

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True North’s executive director, Lisa Graves, and research director Evan Vorpahl contributed to this analysis.