GOP Officials Are Outsourcing Their Lawsuits to a Far-Right Christian Group
Two separate, controversial Idaho laws have landed in front of the justices of the U.S. Supreme Court this year: the state’s total ban on abortion, and its ban on gender-affirming care for transgender youth. As he prepared to defend both, Idaho Attorney General Raúl Labrador (R) sought help from lawyers at the Alliance Defending Freedom, a controversial, far-right Christian group.
It’s not unusual for attorneys general to bring on outside counsel when they’re going to the Supreme Court. Historically, however, experts say, it has not been common for attorneys general to outsource their litigation efforts to private, agenda-driven interest groups. But in recent years, ADF has become the go-to firm for Republican officials defending anti-abortion and anti-LGBTQ legislation.
ADF is a nonprofit litigation shop founded in the early 90s by dozens of the highest profile conservative Christian figures of the time, including Focus on the Family’s James Dobson, Campus Crusade for Christ’s Bill Bright, and anti-porn crusader Alan Sears, co-author of the anti-LGBT book “The Homosexual Agenda.” Its mission: “to change the law and culture of the nation,” essentially, by helping do away with the separation of church and state.
The Southern Poverty Law Center has, for years, designated ADF as anti-LGBTQ hate group. ADF rejects this designation. Jeremy Tedesco, ADF’s senior counsel, says the SPLC is “a thoroughly discredited, blatantly partisan activist outfit.”
Since 2011, ADF has claimed 15 victories before the court, including arguments in favor of a cake shop that refused to sell a wedding cake to a gay couple, a graphic designer who didn’t want to design wedding websites for gay couples (hypothetically), and a cabinet manufacturer who objected to the idea their employee health plan had to cover birth control.
In recent years, though, ADF has increasingly sought to partner with government officials like Labrador — and its contracts with those government officials are striking. In outsourcing their litigation efforts to ADF, public officials are agreeing to give a privately-funded nonprofit, one pushing an extreme right-wing policy agenda, substantial control over their public statements and interactions with journalists, among other concessions. (Independent journalist Chris Geidner first reported on ADF’s contract with Labrador in his newsletter LawDork.)
According to public records produced at Rolling Stone’s request, Idaho has partnered with ADF on at least four separate lawsuits recently: U.S. v. State of Idaho (concerning whether the state’s abortion ban violates the Emergency Medical Treatment and Labor Act), Poe v. Labrador (the gender-affirming care case), State of Washington et al. v. United States Food & Drug Administration et al. (concerning the FDA approval of mifepristone) and Roe v. Critchfield (over a ban on trans students using the bathroom that matches their gender identity).
It’s not just Idaho — an alarming number of Republican officials are outsourcing their most controversial lawsuits to the legal advocacy group. Rolling Stone obtained contracts that ADF entered into with Kansas Attorney General Kris Kobach to help him defend a law that forces abortion providers to give inaccurate information to their patients, and Yavapai County Attorney Dennis McGrane as he sought to intervene in a case challenging Arizona’s pre-Civil War abortion ban. Records show Iowa Gov. Kim Reynolds previously recruited ADF to represent the State of Iowa and the Iowa Board of Medicine as they defended a 24-hour waiting period for in-state abortions passed in 2020, and a 2018 ban on abortions after cardiac activity. (Both lawsuits were brought against the state by Planned Parenthood.)
The state of Wyoming refused to disclose its contracts, writing, “All records responsive to this request are privileged under Wyoming law under the attorney-client privilege and/or the attorney-client work product doctrine.”
Mississippi’s Republican attorney general, Lynn Fitch, entered into an agreement with ADF in 2020 to assist her office in its appeal to the Supreme Court over its 15-week abortion ban, a law ADF openly boasts it helped draft. The high court accepted the case, setting the stage for its 2022 ruling overturning Roe v. Wade and allowing states to ban abortion.
“It’s no great shock that attorneys general, over the last decade, have increasingly become frontline soldiers in our legal cultural wars,” says University of Texas law professor Steve Vladeck. “But part of why that’s been possible is because of the special abilities, and the special privileges that states and other government actors have as litigants.”
“These attorneys general were elected to represent the people of their state, not the Alliance Defending Freedom,” Vladeck adds. “There’s the political problem, which is: ‘Who’s working for whom?’ which in turn raises a serious accountability problem — ‘Who’s calling the shots?”
ADF spokesperson Elizabeth Ray says, “It’s common practice for state attorneys general to hire outside legal experts for litigation on all manner of cases.” She adds that ADF’s work with public officials “saves taxpayers significant sums of money.”
The contracts reviewed by Rolling Stone include stipulations that ADF will cover most of the costs of the litigation, but might be reimbursed for out-of-pocket expenses. The Yavapai County contract mentions that litigation “may result in a settlement agreement” or other costs for which ADF will not be responsible, if it loses — but, presumably, the citizens of the county would be.
“If the people of Yavapai County learned about this arrangement, would they approve of it?” asks Vladeck, adding: “All of these things just underscore why, in general, it has not historically been the norm that private interest groups represent governments.”
The contracts give ADF significant influence over officials’ public comments regarding their cases. One Idaho contract says the attorney general “agrees to consult with ADF regarding public statements related to the representation and when interacting and communicating with the media.” The attorney’s general office also agreed to publicize information about the case at ADF’s request, because “effective public advocacy may have a beneficial impact” on the representation.
Daniel Estes, a spokesperson for Labrador, tells Rolling Stone. “The Office of the Attorney General has a great working relationship with attorneys at ADF. We appreciate their expertise and experience litigating complex issues. Attorney General Labrador has complete control and final say in all public statements and communications related to our office’s litigation.”
The Yavapai County contract — part of a successful effort to revive the state’s 1864 abortion ban at the state Supreme Court — is more aggressive. It says the county attorney “agrees to allow ADF to control the interaction and communication with the media, in consultation with the client.”
The contract further states: “During the Representation, Client agrees not to record or make any public statements related to the subject of the Representation orally, in writing, via social media, or any other form of electronic communication without first notifying and consulting with ADF. After the case is over, ADF strongly recommends that Client continue to consult with it before making such statements to avoid undermining positive rulings or future litigation that may occur on the same or similar issues.”
This explains why, when the news outlet Bolts contacted the county attorney’s office about whether it would seek to enforce the 1864 abortion ban, an official said they were “directed” to defer all inquiries to ADF.
“Legal cases are directly affected not only by what is said in court but also by what is said outside of court. It is standard practice for attorneys, co-counsel, and clients to consult on public statements before they are made,” says Ray, the ADF spokesperson.
“What you’re seeing is the wholesale outsourcing of the entire legislative, litigation, and lawmaking process to billionaire-funded, theocratic extremists, who are driving an agenda through a coordinated strategy through various levers of government power,” says Alex Aronson, of Court Accountability. “The same billionaires that captured the Supreme Court are working behind the scenes with these red-state legislatures to devise extremist policies that will survive judicial review, because they know that the judges that they themselves have put on the bench are amenable to these results. It’s a terrifying outcome for democracy and law.”
Brenna Ehrlich provided additional reporting.
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