The Daily - A Direct Challenge to Roe v. Wade in Alabama

Episode Date: May 17, 2019

Alabama has adopted a law that would criminalize nearly all abortions and make the penalty for providing one up to 99 years in prison. The man who wrote the law knew it was unconstitutional — and did it anyway. We asked him why. Guests: Eric Johnston, a lawyer in Alabama who has spent more than 30 years trying to ban abortion, and Sabrina Tavernise, a national correspondent for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.Background reading: States across the country are passing some of the most restrictive abortion legislation in decades, setting up court battles that could profoundly reshape abortion access in America.On Wednesday, Alabama’s governor signed into law a measure to ban most abortions in the state. Here’s what’s likely to happen next.Among residents of Alabama, opposition to abortion is widespread.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, Alabama has adopted a law that would criminalize nearly all abortions and make the penalty for providing one up to 99 years in prison. Why the man who wrote the law knew it was unconstitutional and did it anyway.

It's Friday, May 17th. Friday, May, good. I think he is awaiting us. Okay, hold on. Thank you. Eric Johnston. Hey, Mr. Johnston. Michael Barbaro from The Times. Yes, Michael. How are you? Oh, I'm good. How are you? Good, good, good. Just to start with, should I address you as Mr. Johnston or should I address you as Eric? What do you prefer?

Oh, Eric's fine. Okay. People I don't know call me Mr. Johnston. Well, we just met. Well, People I don't know call me Mr. Johnston. Well, we just met. Well, I know. We know each other now. We do. It sounds like you're having a bit of a day there. Yeah, yeah.

It's been an unusual day. I hope tomorrow I get—well, no, tomorrow's going to be some more of this, I understand. And when you say this? Interviews, calls, constant since about 10 this morning. It's been all day long. Three different BBCs called. So I asked them, I said, don't you guys work together? And they said, well, we do, but there's bunches of us. And so I did three different Skype interviews with BBC, all different people about this bill. So. So, Sabrina, yesterday I talked to this lawyer in Alabama, Eric Johnson.

I'm sure by this point you know who he is. Yes. He is the lawyer at the center of the Alabama abortion bill. He's right in the middle of it. It's a really big week for him. Right, which is why we wanted to talk to him. But I want to get your take on this conversation we had. But I want to get your take on this conversation we had, given how closely you've been covering what's going on at the state level across the United States when it comes to abortion rights.

A lot is changing at the state level. Abortion was not, Roe v. Wade was decided in 73, and I had just begun practicing law. And initially, there was not a lot of impact by the Roe decision. It was not really anything that was, you know, talked about very much. — Johnson says he had just started practicing law when Roe was decided. In fact, he was admitted to the bar the exact same year, 1973, that the case was ruled. So why would that have not been a big didn't hear any really organized opposition to this big change. The opposition grew slowly over time, and it started really with a group of conservative thinkers who realized that abortion was the way that they could bring evangelicals into the electorate. that they could bring evangelicals into the electorate. So they sold this vision to Ronald Reagan. He believed it. He ran with it.

And by the 1980s, you had abortion as this big political issue. Right, and that timeline lines up with what Johnston told us. After several years of practice, when I became more accustomed to what I was doing, I focused on the abortion issue, and I realized, you know, that was a pretty significant case. I became interested in it at that time, and it was partially because, you know, I believe that life, God ordained life, and life begins in the womb. Scripture talks about that, but as a lawyer, I, you know, was reading cases, and I was seeing the constitutional deficiencies of Roe and realizing that, you know, it was a mistake. What does he mean here when he talks about the constitutional deficiencies of Roe v. Wade? So what many constitutional scholars will tell you is that

this is a case that rests on slightly legal shaky ground because the way the court ruled in Roe, they based it on this idea that there was a constitutional right to privacy, that it wasn't about equality, it wasn't about equal rights, it was really about privacy. But the problem with that was that there wasn't a direct and explicit right spelled out in the Constitution for privacy. Essentially, they were interpreting based on a reading of the Constitution. And that left an opening for conservatives who argued that, look, this doesn't really hold water legally. really hold water illegally. So it sounds like once this does become a hot issue after the 1980s, conservatives like Johnston see a path to potentially overturning Roe v. Wade with some kind of a challenge. That's right. And the challenges come pretty quickly. Well, in 1990 was

when I began working with the legislature and have worked with the legislature every year after that. And what do you mean when you say work with the legislature? The way the system works in Alabama, and all states are somewhat different, but probably similar in a lot of ways, there is a bill-writing service for the legislature. In effect, they serve as the legislature's lawyer. Legislative Reference Service, it was called then, was very open to taking... Outside ideas. ...legislation, yeah. And what we did in 1990 and 91

is we were bringing legislation in the Alabama legislature which would have addressed Roe v. Wade. Those bills did not pass. But it was actually in 1992 that Planned Parenthood v. Casey was decided. Which reaffirms Roe v. Wade. Which reaffirmed Roe.

And then we changed our whole approach to how we would deal with the issue. So this was a really big case for someone like Johnston. Because what happened was everybody expected that this would mean the end of Roe. That was the expectation going into Casey. But the court really surprised everyone. The court said, no, Roe is firm. Abortion is legal in the United States. But it brought in a caveat.

States can regulate up to viability generally around 24 weeks. So until a baby is viable outside the womb, as long as they do not place an undue burden on the woman in doing so. So what happened was this opens the door for state legislatures around the country to basically become legally very inventive in how to regulate this thing. They want to regulate it. And tell me what you mean by inventive. What can they suddenly regulate? So, for example, one popular method was to say,

OK, you're an abortion clinic, but we think probably you're unsafe as an abortion clinic, so you need to have very special doorways, hallways. You need to be built like a hospital. You need to have a doctor who's on call at all time, who has admitting privileges in a local hospital. And if you don't have those things, then you can't keep operating as a clinic in our state.

And that started to really change the picture for abortion access in the United States. Because it's going to make it harder to run an abortion clinic. That's right. And that started in the United States. Because it's going to make it harder to run an abortion claim. That's right. And that started in 1992 after Casey. And what was your change in approach? Well, we would go from writing bills that would seek to reverse row to writing bills that would regulate the abortion procedure process to reduce the number of abortions. So during this time, you give up on the idea that you can overturn Roe v. Wade.

And I just want to understand why. What made you decide that that wasn't something worth trying to do? Well, after Casey was decided, knowing the makeup of the Supreme Court and reading the Casey opinion, it was obvious to lawyers who were involved at that time that there was not a foreseeable case or opportunity for Roe to be reversed. It wouldn't do any good just to go and pass laws that would say abortion is illegal because the U.S. Supreme Court would strike those laws down. It would be a waste of time. This begins the era of let's chip away. Just little bits, little bits. We can take little bites out of it. So you think viability is 24 weeks? What about 20? We're going to regulate it at 20 and see how that goes. That did not change until last year.

And what happened last year that made that change? last year. And what happened last year that made that change? Well, there were the prospects of new justices on the U.S. Supreme Court, Gorsuch, and then Kavanaugh. There was a Justice Department who was more favorable to the sanctity of life. Now it looks like, you know, this may be the time to do it. And of course, I have no crystal ball. I don't know that it's the time to do it. But if you look around, I'm not the only one thinking this or the Alabama Pro-Life Coalition is not the only one.

When Kavanaugh was confirmed, there was one thing in my mind, which was, this is going to be a huge fight. What do you mean? You know, this was the first time a serious challenge to Roe would be possible.

Because of the math. Because the math in the Supreme Court had changed. So it was a really big moment because we all thought, oh, my God, it's going to happen. And, you know, for the anti-abortion side, this was something that they'd been working for and hoping for for 40 years. working for and hoping for for 40 years. The essential function of government is to protect the most vulnerable among us, those who do not have a voice. So in January, what you're seeing is a bunch of states

having this new type of bill called a fetal heartbeat bill. We believe that it cannot be denied that once a heartbeat is detected, that there is a life growing within the womb. And what that bill does is it bans abortion once a fetal heartbeat is detected. And that's around six to eight weeks of pregnancy. And that's very early. You said earlier, right, that Roe establishes the period as 24, 26 weeks. That's right, viability. So it's way before viability.

So this is a direct constitutional challenge. I understand that some oppose this legislation. I realize that some may challenge it in the court of law. But our job is to do what is right, not what is easy. And these laws used to be extremely rare. States didn't pass them because they knew it would be politically useless. It would be irrelevant. The bill would die.

It was a waste of time. waste of time. I'm signing HB 481 this morning to ensure that all Georgians have the opportunity to live, grow, learn, and prosper in our great state. And suddenly in January, you start seeing these things passing. The signing of this bill today is consistent with that respect for life and the imperative to protect those who cannot protect themselves. So I'm proud to be here today to sign this bill and make a statement on behalf of the state of Mississippi that we are pro-life. We believe in protecting that child, and we're going to do everything we can within our power to do so. So we have Kentucky, we have Ohio, we have Mississippi, and we have Georgia. We are called to be strong and courageous.

And we will not back down. We will always continue to fight for life. And all of these so-called heartbeat bills, they're in direct violation, deliberately, of Roe v. Wade. That's their intent. Roe v. Wade. That's their intent. Okay, so you see this opportunity to do, as you said, a substantial review of Roe.

The justices have changed. The administration has changed. The kind of political climate has changed. And so what do you do? Well, I spoke with a legislator last year at the end of the session in April, and we discussed the possibility of a bill that would prohibit abortion in Alabama. He had the same idea. And what was the idea? The idea was to do a bill to make abortion a crime, to prohibit it, to say that if you perform an abortion on someone, then it's a crime and there's a criminal penalty for it. I think having a pure, direct approach saying the unborn child is a person is the only way you can really attack Roe because Roe is based on the idea that the

unborn child is not a person. Heartbeat is evidence of personhood, but it doesn't say it's a person. So you were trying to make a stronger statement with this bill that would establish the personhood of a fetus. I don't know if the stronger would be the adjective I would use. It would be a clearer statement. Okay. And that's why we didn't want a rape or incest exception on the bill, because that is contrary to the idea that the unborn child is a person.

So this Alabama bill goes farther than any other bill that is passed toward confronting Roe. It's a direct ban on abortion, right? You know, it's a declaration of war. It says our state is not going to live by the laws of the land. It's really, in a way, a social movement that has decided that it is time. And, you know, there are a number of lawyers who are on the anti-abortion side who think this is a big mistake. They're wrong. It's not going to happen like this. But we've gotten to this point in the emotion of the thing where we can't stop. These things are just passing and it's happening.

The most radical anti-abortion bill in the country is still making its way through the Alabama state legislature due to come up for a final vote next week. Happening today, Alabama's abortion ban is heading toward a committee vote. The vote could be on the Senate floor by tomorrow. Let's just bring you some breaking news. We're just hearing that Alabama's state Senate has approved a bill to outlaw nearly all abortions, even in cases of incest and rape. The Alabama State Senate passed the measure 25 to 6. Sending the bill now to Governor Kay Ivey's desk. It's an extreme law and they want to challenge Roe versus Wade. But my humble view is that this is not the case we want to bring to the Supreme Court because I think this one will lose. Breaking news just moments ago, Alabama Governor Kay Ivey, a short time ago, signing the most restrictive abortion law in the nation.

You certainly cannot deter your efforts to protect the unborn, even if it means going to the Supreme Court. the unborn, even if it means going to Supreme Court. So by the time Thursday morning rolls around, we have the news that the state has criminalized abortion. So it is a really big deal, but not for the reasons you think. Because the law itself, there's no chance that it will go into effect in Alabama. And all of the legislators voting for it know that very well. And that's kind of the plan. If this law goes into effect in Alabama and it says abortion is a crime,

that is in conflict with Roe's interpretation and application of the U.S. Constitution. So the law is unconstitutional. and application of the U.S. Constitution, so the law is unconstitutional. Once it is passed, before it can go into effect, a lawsuit is expected to be filed. You're expecting to be sued? Of course. He passes a bill that he knows, and they have intentionally designed to be unconstitutional. Right.

And the Planned Parenthoods and the ACLUs of the world, they have to respond. Because if they don't, then, you know, it becomes the law of the land in Alabama. Well, you could put it that way, but I wouldn't put it that way. What I would say is the goal is to protect the lives of unborn children, but I realize that we can't do that without this law being held constitutional. Got it. And then what happens once there's a lawsuit? Well, it goes to the trial court. There'll be evidence by doctors and expert evidence on, you know, the humanity of the unborn child. That court will find it unconstitutional. It will then go to the 11th Circuit Court of

Appeals in Atlanta, where it will also be held unconstitutional. Those intermediate judges, lower court and intermediate appellate judges, don't have any latitude or authority in finding something constitutional, which the U.S. Supreme Court has already said is unconstitutional. So after that, we will ask the U.S. Supreme Court to review the case, which is discretionary with them. They may or may not review the Alabama law. They may review a law from another state. Oftentimes, with cases like this, they'll take two or three cases and look at them and then, you know, render an opinion. But none of us can predict what will happen or whether it will be the law that we're working on will be the vehicle that results in the decision. So you're marching your way up every step of the

appellate court system all the way, theoretically, to the Supreme Court. Right. Who's health? Our health! Who's health? Our health! Who's health? Our health!

Well, Alan, Planned Parenthood is one of those organizations that plans to fight Alabama's new abortion law. And as we have learned this morning that the ACLU of Alabama is planning to sue. We're going to go to court. I fully expect that we will be able to block this law before it takes effect. And we'll go to court in any state that tries to block it. Eric, we've already heard from groups that plan to challenge this law in court. And it sounds like, from everything you've told me,

that's in some ways kind of welcome news. Well, it's expected. It's necessary to follow that. There's no way to get around it. It kind of is essential as a step in this process for you. Yes. So you have this very strange kind of, you know... Dilemma.

Yeah, dilemma, or kind of arms race, you know, in which they pass this obviously unconstitutional bill. The other side has to step in and challenge it in court. And in fact, it achieves along the way his design and intent from the very beginning, which is get it up through the court system to the Supreme Court. That's what they wanted. And that's, in fact, exactly what's happening. Which is, of course, the only

place where an unconstitutional law can be made constitutional because they can overturn Roe v. Wade. That's exactly right. However, I mean, it doesn't mean that the court has to take the case. We don't necessarily believe that the court is going to take the case, but this is what they're thinking. Right. So the hope for those who support abortion rights is that the Supreme Court just doesn't take the case. And it doesn't really seem like it will, at least right away. It would be a hugely political move for the court in a way. And, you know, people who watch the court say that Chief Justice Roberts really wouldn't

want something like this. It would be a reputational thing. Better not to take it up. You probably know this, but there will be many people on the other side of this debate who see a man writing this law, handing it over to a group of other men, mostly, in the Alabama legislature, who are hoping that a group of five men on the Supreme Court, the conservative majority at the moment, will agree with you. Can you see how there would be very significant objections to that? Of course.

Given how much abortion impacts women. 46 years of having abortion is a very big obstacle to overcome. And yes, I do. I've gotten many very bad emails and phone calls today. And I realize on both sides of the issue, there are very strong feelings.

But that's the thing about the abortion issue. It has never gone away. It's never lost its intensity. But are you comfortable with the number of men in this chain of decision-making, given how intimately tied abortion is to womanhood, to a woman's body?

I have no problem with that because the people I work with, being a man or a woman, they still appreciate the parameters within which we are working. And because the Senate had more men in it yesterday, they're not looking down their noses at women and doing anything improperly.

That's maybe, you know, some defense or red herring the other side may want to throw up. But I don't agree with that at all. So finally, Eric, how long do you think that this process that you have started here will take, and how patient are you willing to be? Two to three years, and there's an old saying that the wheels of justice grind exceedingly slow but exceedingly finely. And so we expect it, you know, to work its way out one way or another, or the issue just may die. It may not be the appropriate time, and the Supreme Court may review none of these cases. So you're prepared to lose as much as you are prepared to win, in your sense of it.

Well, yes. You know, I'm not called to win the war. I'm just called to go to the battle. And if you lose, will you just take it up again? At an appropriate time, but I'm not going to, you know, joust at windmills. Eric, thank you for your time. We appreciate it. Thank you very much.

Sabrina, thank you very much. Thank you, Michael. Next week, Sabrina talks to her colleague, Adam Liptak, about the legal vulnerabilities of Roe v. Wade. We'll be right back. Here's what else you need to know today. On Thursday, President Trump told his acting defense secretary, Patrick Shanahan, that he does not want a war with Iran, an unambiguous message likely directed at his hardline advisors, like John Bolton, who may want a conflict with Iran. The president's statement comes amid rising tensions with Iran, including a finding by U.S. intelligence agencies

that Iran had placed missiles on small boats in the Persian Gulf, which it could use to attack U.S. forces, a finding that has been disputed by U.S. allies. Please. Thank you. And... We're here on this very beautiful spring day. In a speech from the Rose Garden, the president proposed a package of immigration reforms that would scale back the current system of family-based immigration,

which prioritizes admitting spouses and children of those already in the U.S. and would instead prioritize immigration by those with specialized skills. would instead prioritize immigration by those with specialized skills. We cherish the open door that we want to create for our country, but a big proportion of those immigrants must come in through merit and skill. The so-called merit-based system would focus on immigrants who are proficient in English and have advanced education degrees. I want to just say something about the word that they use, merit. It is really a condescending word.

The reforms developed by the president's son-in-law, Jared Kushner, face significant resistance in Congress. They would not reduce overall immigration to the frustration of conservatives and would not resolve the fate of millions of dreamers to the frustration of liberals. They're saying family is without merit. Are they saying most of the people who have ever come to the United States in the history of our country are without merit because they don't have an engineering degree? Certainly, we want to attract the best to our country,

and that includes many people from many parts of society. The Daily is made by Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. Special thanks to Sam Dolmick, Michaela Bouchard, Stella Tan, Julia Simon, and Samantha Hennig. That's it for The Daily. I'm Michael Barbaro. See you on Monday.