GOP officials are outsourcing their lawsuits to a far-right Christian group

Two separate, controversial ones Idaho laws have landed before US Supreme Court justices this year: the state's complete ban on abortion and its ban on gender-affirming care for transgender youth. As he prepared to defend both, Idaho Attorney General Raul Labrador (R) enlisted the help of lawyers at the Alliance Defending Freedom, a controversial, far-right Christian group.

It is not unusual for attorneys general to bring in outside counsel when they go to the Supreme Court. Historically, however, experts say, it has not been common for attorneys general to outsource their court efforts to agenda-driven private interest groups. But in recent years, ADF has become the go-to company for Republican officials who champion anti-abortion and LGBTQ legislation.

ADF is a nonprofit litigation shop founded in the early '90s by dozens of conservative Christian figures of the day, 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”. His mission: “to change the law and culture of the nation,” essentially by helping to eliminate the separation of church and state.

The Southern Poverty Law Center has, for years, characterized the ADF as anti-LGBTQ hate group. ADF rejects this characterization. Jeremy Tedesco, senior adviser to ADF, says the SPLC is “a completely discredited, blatantly partisan activist outfit.”

Since 2011, ADF has claimed 15 court victories, including arguments in favor of a pastry shop who 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 cabinet maker who opposed the idea that their employee health plan should cover birth control.

In recent years, however, the ADF has increasingly sought to work with government officials like Labrador — and its contracts with those government officials are impressive. In outsourcing their efforts to ADF, public officials agree to give a private nonprofit, which promotes a far-right political agenda, substantial control over their public statements and interactions with journalists, among other concessions. (Freelance journalist Chris Geidner first reported ADF's contract with Labrador in his newsletter LawDork.)

According to public records produced at Rolling rockat its request, Idaho has cooperated with ADF in at least four separate lawsuits recently: United States v. State of Idaho (regarding whether state abortion ban violates Emergency Medical Care and Labor Act); Poe vs. Labrador (the gender-affirming care case), State of Washington et al. v. United States Food & Drug Administration et al. (regarding the FDA approval of mifepristone) and Roe v. Critchfield (for banning transgender students from 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 defense team. Rolling rock received contracts ADF made with Kansas Attorney General Chris Kobach to help him defend a law forcing abortion providers to give inaccurate information to their patients and Yavapai County District Attorney Dennis McGrane as he tried 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 Medical Board as she championed a 24-hour in-state abortion waiting period that passed in 2020 and an abortion ban in 2018 after cardiac activity. (Both lawsuits were brought against the state by Planned Parenthood.)

The state of Wyoming declined to disclose its contracts, writing, “All records responding to this request are privileged under Wyoming law under the attorney-client privilege and/or the attorney-client work product doctrine.”

Republican Mississippi Attorney General Lynn Fitch struck a deal with ADF in 2020 to help her office challenge the 15-week abortion ban, an ADF law he brags openly helped the plan. The high court accepted the case, setting the stage for its decision to be overturned in 2022 Roe v. Wade and allowing states to ban abortion.

“It's no big shock that attorneys general, over the past decade, have increasingly become front-line soldiers in our legal culture wars,” says University of Texas law professor Steve Vladeck. “But part of why this has been possible is because of the special abilities and special privileges that states and other governmental actors have as litigants.”

“These attorneys general were elected to represent the people of their state, not the Alliance Defending Liberty,” Vladeck adds. “There is the political problem, which is: 'Who works for whom?' which in turn raises a serious accountability problem — “Who's calling the shots?”

ADF spokeswoman Elizabeth Ray says, “It is common practice for state attorneys general to hire outside legal experts to appeal all kinds of cases.” He adds that ADF's work with public officials “saves taxpayers significant amounts of money”.

The contracts revised by Rolling rock includes stipulations that ADF will cover most of the costs of the litigation but may be reimbursed for out-of-pocket costs. Yavapai County's contract states that the litigation “may result in a settlement agreement” or other costs for which ADF would not be responsible, if it loses — but, presumably, the citizens of the county would be.

“If the people of Yavapai County knew about this arrangement, would they approve it?” asks Vladeck, adding, “All of these things just underscore why, in general, it hasn't historically been the norm for private interest groups to represent governments.”

The contracts give the ADF significant influence over public comments by officials about their affairs. An Idaho contract says the attorney general “agrees to consult with ADF regarding public statements related to representation and when interacting and communicating with the media.” The attorney general's office also agreed to release information about the case at ADF's request because “effective public advocacy can have a beneficial impact” on representation.

Says Daniel Estes, spokesman for Labrador Rolling rock. “The Office of the Attorney General has an excellent working relationship with ADF attorneys. We value their expertise and experience in solving complex issues. Attorney General Labrador has complete control and final say over all public statements and communications related to our office's litigation.”

Yavapai County's compact — part of a successful effort to revive the 1864 abortion ban in the state Supreme Court — is more aggressive. It says the county attorney “agrees to allow ADF to control interaction and communication with the media, in consultation with the client.”

The contract further states: “During the Representation, the Client agrees not to record or make public statements regarding the subject matter of the Representation orally, in writing, through social media or any other form of electronic communication without prior notice and consultation with the ADF. Following the conclusion of the case, ADF strongly recommends that the Client continue to consult with him before making such statements to avoid undermining positive decisions or future disputes that may arise on the same or similar issues.”

This explains why, when the news media Bolts contacted the county attorney's office about whether to seek to enforce the 1864 abortion ban, an official said they were “directed” to postpone all investigations into the ADF.

“Legal cases are directly affected not only by what is said in court but also by what is said outside court. It is standard practice for lawyers, co-lawyers and clients to consult public statements before they are made,” says Ray, the ADF spokesman.

“What you're seeing is the wholesale outsourcing of the entire legislative, judicial and legislative 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 the Accountability Court. “The same billionaires who have taken over the Supreme Court are working behind the scenes with these red state legislatures to design extremist policies that will survive judicial review because they know that the justices they have put on the bench are susceptible to these outcomes . It is a terrifying result for democracy and justice.”

Brenna Ehrlich provided additional reporting.