There’s a pitched battle happening in the pages of the Idaho Statesman, where a Republican elected official and a right-wing legal activist have been carving out time to try to dunk on local newspaper columnists. It now involves a cursed combination of denied abortions, “civility” discourse, and, somehow, Elon Musk.
On April 26, the Supreme Court will hear Idaho v. United States, a case about whether Idaho’s abortion ban violates the Emergency Medical Treatment and Active Labor Act, or EMTALA, a federal law that requires hospitals to provide stabilizing care, including abortions, when necessary. After the Biden administration sued the state, arguing that the exceptions in its abortion ban are too narrow to comply with EMTALA, Republican Attorney General Raúl Labrador enlisted the right-wing Christian legal organization Alliance Defending Freedom to help argue this case, and another relating to a ban on gender-affirming care for minors.
Labrador caught a lot of shit for the move, given that ADF isn’t just any law firm, but an advocacy group on a crusade to ban abortion nationwide, gut civil rights laws, and terrorize trans people. ADF lawyers helped overturn Roe v. Wade in 2022, represented the Colorado website designer in the sham case that was 303 Creative v. Elenis, and is behind reams of anti-trans model legislation for lawmakers in Republican-controlled states to push. The contract Labrador signed also seeks to shield communications between the AG’s office and ADF from the state’s public records law, and gives ADF approval power over public statements about the case. And as Chris Geidner reported at Law Dork, ADF is not charging the state for its services.
This partnership isn’t just weird—it’s alarming. James Tierney, former Maine attorney general and current lecturer at Harvard Law School, told Geidner that a state using an advocacy organization as its lawyers is “a very bad practice,” even if it’s free. “They will represent their true client, the advocacy group, not the state,” Tierney said.
A Boise attorney decided the AG shouldn’t have the last word on the matter. Tom Arkoosh, a former Democratic candidate for Idaho AG, wrote a Statesman op-ed on March 4 responding to Labrador’s pathetic little blog, and the headline is truly a knockout: “Alliance Defending Freedom isn’t representing you, but Christian Nationalism broadly.”
In the column, Arkoosh argued that the partnership with ADF is not only breaching the separation of church and state, but is also ignoring the views of Idaho residents. “During his campaign, Labrador promised to be the lawyer for the people of the state of Idaho. As it turns out, Labrador has made ADF our lawyer,” he wrote. “And the ADF is not ‘for’ the people of the state of Idaho, but instead, the ADF is for the ADF, imposing private religious dictates on all Idahoans.” (Arkoosh also links to the SPLC page on ADF, but doesn’t cite the org by name.)
Bursch after arguing R.G. & G.R. Harris Funeral Homes v. EEOC, a case in which he argued that federal law does not protect LGBTQ people from discrimination at work. Bursch lost, lol. (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)
The piece was quite satisfying, and it clearly pissed off ADF. About two weeks later, one of their own lawyers published a retort, also in the Statesman, explaining that the firm is definitely not the Kool-Aid Man busting through the wall separating church and state. John Bursch, a senior ADF lawyer, accused Arkoosh of lobbing “baseless character assassinations” rather than engaging in a genteel policy debate of bygone “civilized days.”
Bursch glibly summarizes the upcoming EMTALA case as “guard[ing] against the Biden administration’s overt attempt to override Idaho’s Defense of Life Act.” This is an evasive, lawyerly way of saying that the administration sued the state so women don’t have to be on death’s door before an emergency room doctor can end their pregnancy. The headline of his piece is “Baseless attacks on the Alliance Defending Freedom won’t help fix real Idaho issues.” Personally, I think it’s a “real issue” that, when the Supreme Court let Idaho’s abortion ban take effect in January, ER doctors were sending people experiencing miscarriages to other states like Utah in order to avoid getting arrested.
Bursch, a former solicitor general for the state of Michigan, says it’s totally normal for state AGs to bring in “outside legal experts” like “respected Supreme Court advocate Alliance Defending Freedom,” as if ADF were a collection of the last names of long-dead law firm partners and not a dark-money juggernaut with a mission to reshape life in the U.S. and abroad. And he says that it’s good, actually, that his advocacy organization isn’t charging any money, calling it “something most taxpayers would celebrate.” Given that 58 percent of Idaho residents say they want less strict abortion laws than the one on the books, this prediction seems unlikely.
And now we get to the pièce de résistance of Bursch’s essay: To back up the characterization that the SPLC isn’t credible, he cites a recent tweet from Elon Musk calling the organization a “scam.” It’s quite something for a person who kicks off his op-ed by lamenting the decline of civil public discourse to later approvingly cite an addled billionaire whose antisemitic posts had advertisers running for the hills. But no, Elon is right and SPLC is wrong, and so is Arkoosh, who, Bursch says, “demean[s] mainstream American views on the dignity of life and God-given freedoms as ‘Christian Nationalism.’ That’s ridiculous.” What’s ridiculous is ADF claiming that its views on abortion anything other than retrograde policy it’s trying to shove down the throat of every American through, yes, Christian nationalism.
The whole thing gives off a vibe of a man and an organization desperate to deflect from their larger, horrifying project by gaslighting people into thinking they’re fighting for you, too. They are doing no such thing. Take the gender-affirming care ban, for example: Where’s the freedom for Idaho parents who want their trans child to get the healthcare they need for a dignified life? It doesn’t exist. Same goes for women who don’t want to die for the sake of an unviable fetus. When Bursch touts ADF’s record of winning Supreme Court cases that “protect foundational freedoms like free speech and religious liberty,” he is omitting all the work the organization has done to impose its preferred religion on everyone else—and all the “freedoms” ADF has whittled away in the process.
