Kobach hires firm that helped overturn Roe v. Wade to represent Kansas in abortion case

The Alliance Defending Freedom, a conservative firm that played a key role in overturning Roe v. Wade, is representing Kansas in an effort to defend abortion laws facing a court challenge from clinics.

Kansas Attorney General Kris Kobach, a Republican, hired ADF to help represent Kansas in a case challenging a law dictating what information clinics must provide women receiving abortions.

The case, filed in Johnson County District Court by the Center for Reproductive Rights on behalf of two Kansas providers, marks the first new challenge to Kansas abortion laws since federal protections were overturned last year and Kansas voters opted to retain state-level rights to the procedure.

The move marks a shift in strategy for abortion cases in the Kansas attorney general’s office which under Kobach’s predecessor, former Republican Attorney General Derek Schmidt, traditionally used in-house staff to defend abortion laws passed by the Legislature.

The ADF has played a key role in litigation central to abortion and America’s culture wars in recent years.

The conservative firm helped draft the Mississippi law that led to the overturn of federal abortion protections in Roe v Wade. ADF’s attorneys, including Erin Morrow Hawley who is married to Republican Sen. Josh Hawley of Missouri, are leading an effort to end the Food and Drug Administration’s approval of mifepristone, the first of two drugs used in a medication abortion.

Though a federal judge in Texas said mifepristone’s approval was invalid the U.S. Supreme Court blocked enforcement of the ruling as the case is appealed.

Last month, the U.S. Supreme Court ruled in favor of a web designer represented by ADF who argued the first amendment allowed her to refuse to create websites for same-sex weddings.

“When activists sue to overturn our validly passed laws, Kansans deserve the best defense possible from the best attorneys they can get,” Dan Burrows, chief deputy attorney general, said in a statement to The Star. “On this issue, there’s probably not a better set of lawyers in the country.”

Kobach’s office, Burrows said, would lead the case but “will be relying on the expertise and assistance from ADF attorneys.”

Julia Payne, one of the three ADF attorneys working on the Kansas case, said the firm takes cases protecting “pro-life laws” in U.S. states pro bono. The firm decides which cases to take on a case-by-case basis, she said.

The brief ADF and Kobach’s office filed last week in the case includes more than 300 pages of expert testimony and credentialing seeking to argue the information in Kansas’ law is true and necessary.

While the brief briefly suggests the 2019 ruling establishing abortion as a right may no longer be “good law” after the overturning of Roe, the state focused on arguing that the law did not impede upon a right to an abortion.

“This law doesn’t say that women can’t have abortions, it says that women should be told certain information before they have abortions,” Payne told The Star.

ADF’s involvement in the case is likely to draw controversy.

Emily Wales, president of Planned Parenthood Great Plains, said the hiring of ADF was a signal to plaintiffs that Kobach’s office was looking to “make a huge public splash.”

“Kansas was the first state in the country to get to exercise the opportunity to vote on abortion rights issues and abortion access in the state. By an overwhelming majority they voted to protect patients and to ensure that access continued,” Wales said. “Now we have that same anti-abortion organization here, technically representing the state. There is something deeply concerning and extremely, openly, antidemocratic about what’s happening.”

But Payne, the ADF attorney, said the organization’s interests were consistent with the state Legislature.

“ADF believes in defending lives from the moment of conception. Here the Kansas Legislature elected by the people has decided to achieve that goal by fully informing women about the abortion procedure,” she said.

Burrows said the attorney general’s office believes the Kansas Supreme Court’s precedents on abortion were incorrect but that the current case was straightforward.

“There’s no need to overturn anything.”

For some, the decision to rely on ADF’s assistance has raised questions over staffing in Kobach’s office.

Stephen McAllister, who served as Kansas solicitor general for more than a decade, said that, from the time Paul Morrison took over as Attorney General in 2007 the office set a goal of keeping a staff capable of handling any case that didn’t require specialized expertise or a conflict of interest.

Kobach’s decision to hire ADF, McAllister said, was reminiscent of Republican Attorney General Phill Kline, who used his office to aggressively investigate abortion providers from 2003 through 2007. Kline, McAllister said, frequently went to national firms because state level attorneys didn’t want to work with or for his office.

“He’s very, what shall I say, partisan and strident,” McAllister said of Kobach. “He wanted somebody who was out there for them.”

“They’ll be very good and very intense,” he added. “ADF is quite capable and they have a lot of resources and a lot of good attorneys. They have a definite perspective and I think that’s probably what the AG wants.”

Kobach told lawmakers in February his office was struggling to recruit staff, with 23 unfilled attorney positions. The office cited pay as the primary reason, pointing to higher starting salaries for state prosecutors in Oklahoma, Colorado and Missouri.

Rep. John Carmichael, a Wichita Democrat and ranking minority member on the House Judiciary Committee, said he believed the decision to include ADF was an indication of continued staffing challenges. The result, Carmichael said, would likely be high amounts of legal fees paid to the plaintiffs, represented by the Center for Reproductive Rights.

“If you’re hiring lawyers based upon their own personal zealotry for a cause you’re probably not hiring the best lawyers to represent you, or in this case, the state,” Carmichael said.