Today, Explained - One man’s crusade against Roe v. Wade

Episode Date: May 4, 2022

Indiana lawyer Jim Bopp has spent most of his life chipping away at Roe v. Wade. His incremental approach to overturning the Court’s decades-old precedent appears to have paid off. This episode was produced by Jillian Weinberger, edited by Katherine Wells with Matt Collette, fact-checked by Laura Bullard and Victoria Dominguez, engineered by Efim Shapiro, and hosted by Noel King. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

It's Today Explained. I'm Noelle King. A few weeks ago, I went to Indiana and I met a lawyer who has been trying to overturn Roe v. Wade for most of his adult life. I don't mean that idly, like he doesn't appreciate Roe and he's gone to certain protests or voted for certain people. I mean it literally. This man graduated from law school with Roe fresh in his mind, and he came up with a plan, and he hit the stacks. I would go to either the law school library or the Supreme Court library at the state capitol. And so I had to go find the books about the Supreme Court, the history of the Supreme Court, and particularly overturning

precedent. Overturning precedent. Not easy. But on today's show, we have the story of how his plan worked. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. James Bopp runs a law firm in his hometown, Terre Haute, Indiana. It's a corner building. It's kind of easy to miss if you're keeping your head down because the wind chill is about minus 70. Wait a minute. Noelle, we went the wrong way.

I think. Yeah, that's nine. We were there in March because we'd heard from a very well-informed law professor that Mr. Bopp is perhaps the main reason that Roe v. Wade was so imperiled. Is it true that you are the smartest man in Terre Haute? No. That's the rumor. No. Are you being modest?

No. Decades ago, Jim Bopp seized on a novel legal strategy with one goal, undermine that 1973 decision. And, well, here we are in 2022. Do you remember when you became aware of what abortion was, what it meant, what it involved? Yes, early on. My dad was a doctor, and he talked often to us about, you do no harm, and of course, abortion kills the unborn baby. The other thing that was really kind of just accidental was in my room, there was bookshelves above my head. At the very top shelf were all his medical books, and I was interested in becoming a doctor, like my dad

and uncle and grandfather. But one of the books was the embryology textbook, and it fascinated me. I was drawn to it. The embryology textbook. Exactly. The embryo and how it was developing from an embryo to a zygote. It's actually zygote to embryo? And the stages of development and what the characteristics were. I mean, it was kind of a thick book, so it had a lot of stuff in it. But the thing that impressed me that's related to the abortion issue is there was no question

that the unborn was a human life from conception. There was no debate about that. That was just simply a biological reality that doctors needed to know and would deal with. And when you couple that with a physician do no harm, the abortion issue was taking of an individual living human being. And that's what's at stake. And that's what makes it wrong, except in rare circumstances. Jim is a conservative. He has always been conservative, even back in the 60s, during which time he did not swing. Did you ever go through a rebellious phase as a teenager? Well, yes, but it isn't the normal one. My rebellion was, I was a conservative and a Republican whose teachers were liberal. My rebellion was organizing my high school for

Barry Goldwater in 1964. Barry Goldwater is calling for courage and integrity in meeting problems. He's calling for an end to do-nothing policies, for progress based on the dynamic principles of the republic. He's calling for a rebirth of individual freedom. I would remind you that extremism in the defense of liberty is no vice. We created a group in my high school. We were Republicans or believed in Goldwater and wanted to do things to advance his candidacy. When Barry Goldwater ran, he was running against the moderate-slash-liberal establishment that controlled and ran the Republican Party.

I mean, we were rebels. I mean, we were serious rebels. Goldwater had to overcome incredible odds to get the Republican nomination. I'm facing that electoral vote board. So I can tell you by moving those electoral votes in Wisconsin to the one column. According to a CBS vote profile analysis, Lyndon Baines Johnson has been elected president of the United States. His electoral vote has gone over the 270 figure by a single vote, 271. And the landslide has carried him in for his first term in office on his own right by his own election.

Goldwater lost the election by a lot, in fact. And Jim went away to college to become a doctor, but he did not excel at science. So he went to law school instead. And? I was at the University of Florida in Gainesville. And on January 22nd, when the opinion was handed down, I was driving from the law school to my apartment. This is as distinct a memory as I have in my life. It was noon, and on comes the noon news report.

And it announced what happened with Roe v. Wade. And I was just shocked and appalled and heartbroken. It's just like yesterday. And yeah, because I thought this was really important. I mean, I just don't think there's anything more important than government's responsibility to protect life. After graduation, he went to work for the Indiana Attorney General. Then he opened an office in downtown Indianapolis,

where he says he went broke for a few years. And then he got involved in National Right to Life, where there was this battle underway among people who were anti-abortion. The battle was between incrementalism and absolutism. Absolutism was, we would be morally complicit in Roe v. Wade if we accepted it as law. And therefore, the only thing that we can ever propose or support is pre-Roe v. Wade prohibitions on abortion, period.

The incrementalists understood, I mean, you've got to learn what fights to fight and what hills to die on, right? No one has ever confused me with Don Quixote, all right? So the reality is, the pronouncements of the Supreme Court are the law of the land and will be followed by all judges. And so you have to accept that and work within it.

That is not a hill to fight on. It's foolish. They wanted to fight on that hill. And what that would have meant was if the only laws we would ever support are complete prohibitions on abortion, few of those would pass, if any. None of them would ever survive the most modest court challenge. And what was threatened by that approach was that the abortion issue would be taken off the public agenda.

Okay? So there would be no prospect of anything about Roe v. Wade ever happening. So it's sort of like Roe versus Wade. That decision exists, but we're not going to wave a magician's wand and make it disappear. So we have to like drill little holes in it where we can. Right. And that is, of course, the traditional strategy that has been employed by people who wanted to overturn precedent, is that they understood that to overturn a precedent, it requires a series of cases where the precedent is undermined. So the big thing in your mind is to get these individual cases to the Supreme Court. Yes. You're smiling. I got it. If they don't take up a case,

they can't be asked to or consider overturning the precedent. And if they uphold the law without overturning the precedent, we now have a law that is likely to save lives. Where did you get the idea for this chipping away at Roe's strategy? The NACP. Presley versus Ferguson. Exactly. Presley versus Ferguson leading to Brown versus Board of Education. Explain the whole thing. Oh, my goodness. I mean, when I got involved with National Right to Life,

one of my first tasks was to develop a strategy to overturn Roe v. Wade. I mean, and tableman that strategy. And so I read all about the NACP strategy because it has been well covered. It was very conscious. I mean, Thurgood Marshall put it together and implemented it. The president should have shortly after the decisions, or at least by now, have gotten on a television network or radio and spoken as the chief executive of this government to the good people of the south urging them to support the decision of the supreme court is the law of the land whether they believed in it or not all the elements of what you could see

in prior cases other instances where precedent had been overturned, all the elements that the NAACP recognized had occurred in all these cases and then implemented successfully were all there, all right? They're identifying individual cases, the NAACP, they're saying if we get this in front of the Supreme Court, the Supreme Court could make a decision on this particular case that would overturn Plessy v. Ferguson. Right. And they keep doing that. And they keep doing that, but they do it even in a more sophisticated way. How so?

They were dealing with Plessy v. Ferguson, and the doctrine was separate but equal. And they said, well, we've got to undermine. Remember the words undermine, because what you need to do is undermine the precedent by getting the courts to question it, explain it or change the doctrine, distinguish it until they're finally ready to jettison it by overruling it. So they started with a medical school. Quick correction, it was a law school. The rest of this story is accurate. And the reality of a separate school for Blacks that would be equal to the white is preposterous, okay? And of course didn't exist in the real world. And of course said, no, the Black school is not equal, right? And they struck it down.

And then they just kept working their way down, okay, until they got to the Topeka, Kansas elementary school. Ruling in five cases in which five Negro children sought the right to go to the same schools as white children, the court said separate educational facilities are inherently unequal. So this was now the incrementalist strategy. Bring abortion case after abortion case before the Supreme Court that the court has to rule on and try to undermine the precedent of Roe.

I set out to advance the conservative cause to make it a majority, not to live in the minority. What was a fringe idea, which was conservative ideas, you know, has become a mainstream. That's huge. Thank you. is the corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, R-A-M-P dot com slash explained. Cards issued by Sutton Bank.

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a sportsbook worth a slam dunk and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Back with Today Explained. Okay, so Jim Bopp started applying the incrementalist strategy. He brought case after case after case. He assisted with lawsuits in Ohio, in Missouri, in Massachusetts. The point was to undermine Roe bit by bit until the justices were ready to overturn it.

And then in 1992 came a big one. The case was called Planned Parenthood v. Casey. The Supreme Court heard arguments on the constitutionality of Pennsylvania's abortion law today. The law is considered one of the strictest in the nation. It requires a married woman to notify her husband... This could be the culmination of our strategy. We may have the votes for them to actually overturn it.

The case is considered the most direct challenge to date of the Supreme Court's 1973 Roe v. Wade decision, which legalized abortion. The state of Pennsylvania had tried to add a few restrictions to abortion, not to make it illegal per se, but to make it harder in a few ways, to chip away at it. Now, this was an incrementalist's dream situation, not to mention eight out of the nine justices on the court had been appointed by Republicans. The restrictions at issue were as follows. Parental notice. If a kid under 18 wants to get an abortion, the doctor has to inform the parents. Informed consent, waiting period. If you want an abortion, you have to sit through informational presentations and then wait a certain amount of time before the procedure.

And spousal notice. If a married woman wants to get an abortion, she has to inform her spouse. And then what the hay happened? Our obligation is to define the liberty of all, not to mandate our own moral code. I was in the court. I'm sitting where the lawyers sit, right in front of the justices. You're wearing a tie, presumably, suit and tie. Well, yeah. It's the Supreme Court. Black socks as opposed to my normal white socks. After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the rule of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability.

Instead of winning, we lost five to four. What went through your head? I was very disappointed, tragically disappointed. And the three justices that we didn't get, that we had hoped to get, we didn't get for different reasons, right? But they joined together in one opinion where they did two things. They reaffirmed that the right to abortion is fundamental, but they also changed Roe v. Wade, okay, to make reasonable regulations on abortion much easier to uphold. It was definitely not a total loss.

As I'm walking out, I'm immediately thinking, okay, the court has given us, obviously, a new analysis that will allow for more extensive regulation on abortion, and that's what we've got to turn our mind to. I don't want to put thoughts in your head, but had I been you, I think the thing going through my head at that moment would have been, this is not a total loss. And also, I would really like to change the composition of that court. Well, we've always known that the constitution of the court

is a critical element in this. I mean, let's be real here. I was born at night, but not last night. Okay? And so I understand that justices are human. I understand that they change over time. They are affected by their life experiences. They're affected by their context in which they're living and making decisions.

I'm an optimistic person. I've always understood politics is a process, not an event, and that we were in it for the long haul, and that we believed we had a strategy that could ultimately succeed. But only if they had sympathetic judges. There were four Reagan appointees on the court in that Casey decision, and they'd let Roe stand. So Republican presidents would have to nominate a specific kind of judge.

Leonard Leo is executive vice president of the Federalist Society, which advances the cause of limited constitutional government. The Federalist Society started on college campuses. It was kind of a club for very conservative young people. That group created a pipeline that went from law schools to clerkships to the federal bench. He organized conservative support for Clarence Thomas and John Roberts and Sam Alito. But his role increased dramatically when candidate Trump asked him to draw up a list of potential nominees. Now, it's worth noting here, Jim Bopp insists the Federalist Society

is not that big a deal. I really was under the impression that when the Federalist Society, quote unquote, endorsed a judge, that judge was understood to be somebody who would vote to overturn Roe versus Wade. And you're saying there's no guarantee of that. I've been in the leadership of the Federalist Society. I've been inside of this. And that's not the case. We do not ask those questions of a prospective nominee. You know, like, even the question, what do you think about Roe v. Wade? We would never ask the question, would you vote to overturn it? That would be totally unethical. It would be wrong for us to ask, wrong for the judge to answer. I don't know what the liberals do, but I know that that's what we do. Any lawyer that would tell you that judges don't matter, then you have a fool

for a lawyer, and you ought to change lawyers, okay? Because judges do matter, because they're human beings. And so there's no question that the fight over judges is understandable, particularly when you have judges like liberal ones that vote based upon their policy views, not what the Constitution provides, in my opinion now, okay? So judges matter. I want somebody that'll faithfully interpret the Constitution based upon its meaning at the time it was adopted. Liberals want somebody that will reinterpret that language based on society's current needs, and that's a problem. After the Supreme Court draft opinion on Roe leaked, I called Jim Bopp. This is Jim Bopp. Mr. Bopp, hello. Can you hear me?

I can. He's been working a case in Richmond. Oh, yeah, I'm taking back. Getting ready to have my first beer here in a little bit. It's been decades. Do you feel vindicated today? Not yet. Not until we get a majority opinion overturning Roe v. Wade. I mean, you know, we got so close in 1992. Do you take credit for where we are today? And I don't mean today in the broad sense. I mean today, right now, this afternoon. The only thing I would take credit of is being persistent. And my motto always has been, you don't lose until you give up. Everything else is just a temporary setback or maybe a temporary dance, whatever. And you don't lose until you give up. It's the way it is. And so I've never given up.

And I'm not going to give up. And, you know, I can say I've done that because I've been persistent. And maybe, and I just hope one of these days, you know, bears the ultimate fruit. Jillian Weinberger co-reported and produced today's episode. Matthew Collette and Catherine Wells edited it. Afim Shapiro engineered it. And Laura Bullard and Tori Dominguez fact- Wells edited it. Efim Shapiro engineered it. And Laura Bullard and Tori Dominguez fact-checked it. I want to shout out law professor Mary Ziegler. She was in fact the person who brought Mr. Bopp to our attention. She's the author of a terrific book called

Dollars for Life, the Anti-Abortion Movement and the Fall of the Republican Establishment. I read it on the plane on the way to Indiana. And hey, here's a thought. It is a cray news cycle, and we want to know what you would like explained. Whether it's about Roe versus Wade, or about abortion more broadly, or about where this country is headed on this issue.

We have a hotline. Sean monitors it. If you want to leave us a message, please do. Call us at 202-688-5944. I'm Noelle King, and this is Today Explained. Thank you.