'Will Roe go?' Supreme Court lawyer talks overturning landmark abortion case

By Samuel Smith, Deputy Managing Editor Friday, January 18, 2019

Alliance Defending Freedom attorney Kristen Waggoner receives the Southern Baptist Convention Ethics & Religious Liberty Commission's John Leland Religious Liberty Award at the Evangelicals for Life Conference at the McLean Bible Church in Vienna, Virginia on Jan. 17, 2019. | PHOTO: ERLC

VIENNA, Va. — The 2019 Evangelicals for Life conference was in full force Thursday as believers from across the nation gathered to discuss life-influencing issues such as abortion, illegal immigration, criminal justice reform and racial reconciliation before they participate in the annual March for Life Friday.

Kristen Waggoner, an attorney with Alliance Defending Freedom who won her first case before the U.S. Supreme Court last year by helping Christian baker Jack Phillips obtain victory over the state of Colorado, spoke during a morning session titled “Will Roe Go: Abortion and the Future of Pro-Life Policy.”

Waggoner, who serves as senior vice president of ADF’s U.S. legal division, detailed avenues in which she believes components of the Supreme Court’s 1973 ruling in Roe v. Wade could be overturned now that there's seemingly a conservative majority on the court.

Following the segment, Waggoner was awarded the Southern Baptist Convention's Ethics & Religious Liberty Commission’s annual John Leland Award, which honors individuals who stand strong to advocate for religious freedom.

The Christian Post sat down with Waggoner following the morning session to talk about the future of Roe, her inspiration for becoming a lawyer and what cases Christians should be keeping an eye on in 2019.

Below and continued on the next page is an edited transcript of the interview.

Christian Post: What will it take to undo Roe v. Wade? Is that something that could happen in the near future (given the conservative makeup of the court) and what kind of cases will it take to undo that ruling?

Kristen Waggoner: It’s not appropriate to try read the tea leaves of where the court is at on a particular issue. We don’t know where the court is at. Justices on the court, the majority, should be originalists and appear to be. The court works at a gradual pace and incremental pace. It's hard to know the exact timing of when Roe will be overturned but we're optimistic that it will be overturned.

Its reasoning doesn’t hold up in light of the 46 years that have passed and what we know about technology and just reading the text of the Constitution.

[A ruling overturning Roe] will return the abortion battle to the states. When the court overturns Roe, it will overturn it likely based on reviewing a state statute that is a limitation on abortion in some way.

Some of the examples of limitations that we would see can be 20-week abortion bans, 15-week abortion bans. There is a 15-week abortion ban that is up on appeal in Mississippi. Also, informed consent laws and what those mean can kind of undo the framework of Roe and [Planned Parenthood v.] Casey and some of those holdings. There are a lot of different ways it can play out.

CP: Are there any laws being challenged currently that could possibly be elevated to that status?

KW: There are a number of cases at the lower court level and there are three cases that are right before the Supreme Court now that will have an impact.

One of them is the Alabama dismemberment ban, which says that you can’t dismember a living child in the womb. That would have an influence on the Roe framework because there is no limitation on that. Someone could try to say that the child is not viable but that law doesn’t distinguish between viability.

Another case is the Box [v. Planned Parenthood of Indiana and Kentucky] case, which has to do with limitations on having sex-selective and engaging in disability discrimination and prohibiting those types of abortions. That, the court appears to be interested in. It has been looked at a couple times without a decision.

We also have the Indiana ultrasound informed consent requirement that the court is taking a look at as well.

Something we didn’t talk about [on stage] that may be interesting is a new tactic that we are seeing from pro-abortion advocates, which is to challenge the cumulative effect of abortion limitations. This means they take all the limitations that are placed on abortion together and say "All of this adds up to an undue burden on the women."

There are five states that are facing lawsuits right now under this cumulative effects theory and those cases could also go up to the Supreme Court.

CP: Is the effort to strip Planned Parenthood of federal funding dead now with the Democrat-controlled House?

KW: I think there are always things we can do and we can do those things at the state level as well as the federal level. We believe that at the state level, there is great promise and we continue to build momentum at the federal level.

If you may recall a couple of years ago, we came within an inch of getting that done. With any good effort, you keep working at it.

We see the other side do that time and again, and so many times our side says, "Oh, we are not going to keep going." I think we are seeing a vigilance and tenaciousness about this — that it is wrong to use hard-earned taxpayer money to fund an abortion mill.

CP: What inspired you to go into this line of work?

KW: I grew up in a Christian home and my dad talked a lot to me about God’s plan for my life and figuring out what that was. I am really grateful for that repeated influence.

He was just encouraging that as a woman, you could be an Esther or a Deborah and you can follow in the footsteps of Nehemiah and David and that life is not about ourselves.

I felt that calling to go into law at the age of 12. I just pursued that ever since. It has, of course, taken different routes than what I even expected.

I spent about 15 years in private practice in Seattle, Washington, at a firm after a judicial clerkship and transitioned to Alliance Defending Freedom in 2013.

CP: How many cases have you argued before the U.S. Supreme Court?

KW: I have argued one case before the Supreme Court [Masterpiece Cakeshop v. Colorado Civil Rights Commission]. I was co-counsel in the NIFLA case, which was another case this term. [Note: the Supreme Court ruled in NIFLA v. Becerra that the state of California could not force pro-life pregnancy centers to promote abortion].

I oversee all of the cases that ADF does. We have nine Supreme Court victories in seven years.

CP: What was your preparation process like going into the oral arguments for the Masterpiece case?

KW: The process is very intense, not just for the oral argument. A number of people that don’t practice before the court don’t account for all the briefing that takes place. They say that you can lose a case at oral argument but usually not win a case at oral argument. It’s the briefing that matters most.

In a case like Masterpiece that is a high profile case, we had about 100 amicus briefs that were filed. Those have to be read, digested, understood and coordinated in some sense. There is just a lot that goes into it, in both what we say, what others are saying, and figuring out how to respond to the court.

Arguing before the Supreme Court is different than any other court. How you engage in the argument is very different than the techniques you would use in the lower courts.