- michael barbaro
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.
So, I’m going to play you part of this interview I did yesterday with this lawyer from Alabama.
- sabrina tavernise
Mm-hm.
- speaker
Eric Johnston’s office.
- michael barbaro
Hey, it’s Michael Barbaro from the New York Times, how are you?
- speaker
I’m fine, how are you?
- michael barbaro
Good, good, good. I think he is awaiting us.
- speaker
O.K., hold on.
- michael barbaro
Thank you.
- eric johnston
Eric Johnston.
- michael barbaro
Hey, Mr. Johnston, Michael Barbaro from the Times.
- eric johnston
Yes, Michael.
- michael barbaro
How are you?
- eric johnston
Oh, I’m good. How are you?
- michael barbaro
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?
- eric johnston
Oh, Eric’s fine. People I don’t know call me, Mr. Johnston.
- michael barbaro
Well, we just met.
- eric johnston
Well, I know, we know each other now.
- michael barbaro
We do. It sounds like you’re having a bit of a day there.
- eric johnston
Yeah, it’s been an unusual day. I hope tomorrow — well, no, tomorrow is going to be some more of this, I understand.
- michael barbaro
And when you say, this?
- eric johnston
Interviews, calls — constant since about 10:00 this morning. It’s been all day long. Three different BBC’s called. I asked ‘em, I said, don’t you guys work together? They said, well, we do, but there’s bunches of us. So, I did three different Skype interviews with BBC — all different people. It’s about this bill, so —
- michael barbaro
So, Sabrina, yesterday I talked to this lawyer in Alabama, Eric Johnston. I’m sure by this point you know he is.
- sabrina tavernise
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.
- michael barbaro
Right, which is why we wanted to talk to him. But I wanted 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.
- sabrina tavernise
A lot is changing at the state level.
- eric johnston
Abortion was not — Roe v. Wade was decided in ‘73, and I was just begun practicing law. And, initially, there was not a lot of impact by the Roe decision. It was not really any thing that was talked about very much.
- michael barbaro
Johnston 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 deal to a conservative lawyer in Alabama?
- sabrina tavernise
So, it really wasn’t in the beginning. You had various Catholic groups that were very much opposed to abortion, but that was not mainstream. You 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. 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.
- michael barbaro
Right. And that timeline lines up with what Johnston told us.
- eric johnston
After several years of practice, when I became more accustomed to what I was doing, I focused on the abortion issue, and I realized that was a pretty significant case. I became interested in it at that time, and it was partially because I believe that life — God ordained life, and life begins in the womb. Scripture talks about that. But, as a lawyer, I was reading cases and I was seeing the constitutional deficiencies of Roe and realizing that it was a mistake.
- michael barbaro
What does he mean here when he talks about the constitutional deficiencies of Roe v. Wade?
- sabrina tavernise
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.
- michael barbaro
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 challenge.
- sabrina tavernise
That’s right. And the challenges come pretty quickly.
- eric johnston
Well, in 1990 was when I began working with the legislature and have worked with the legislature every year after that.
- michael barbaro
And what do you mean when you say work with the legislature?
- eric johnston
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 —
- michael barbaro
Outside ideas.
- eric johnston
Legislation. 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.
- michael barbaro
Which reaffirms Roe v. Wade.
- eric johnston
Which reaffirmed Roe. And then we changed our whole approach to how we would deal with the issue.
- sabrina tavernise
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.
- michael barbaro
And tell me what you mean by inventive. What can they suddenly regulate?
- sabrina tavernise
So, for example, one popular method was to say, O.K., 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.
- michael barbaro
Because it’s going to make it harder to run an abortion clinic.
- sabrina tavernise
That’s right. And that started in 1992 after Casey.
- michael barbaro
And what was your change in approach?
- eric johnston
Well, we would go from writing bills that would seek to reverse Roe to writing bills that would regulate the abortion procedure process to reduce the number of abortions.
- michael barbaro
So, during this time, you give up on the idea that you can overturn Roe v. Wade — and I just don’t understand why. What made you decide that that wasn’t something worth trying to do?
- eric johnston
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.
- sabrina tavernise
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.
- eric johnston
That did not change until last year.
- michael barbaro
And what happened last year that made that change?
- eric johnston
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 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.
- sabrina tavernise
When Kavanaugh was confirmed, there was one thing in my mind, which was, this is going to be a huge fight.
- michael barbaro
What do you mean?
- sabrina tavernise
You know, this was the first time a serious challenge to Roe would be possible.
- michael barbaro
Because of the math.
- sabrina tavernise
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 for the anti-abortion side, this was something that they’d been working for and hoping for for 40 years.
- archived recording 1
The essential function of government is to protect the most vulnerable among us — those who do not have a voice.
- sabrina tavernise
So, in January, what you’re seeing is a bunch of states.
- archived recording 2
We believe in the sanctity of life.
- sabrina tavernise
Having this new type of bill called a fetal heartbeat bill.
- archived recording 3
We believe that it cannot be denied that once a heartbeat is detected, that there is a life growing within the womb.
- sabrina tavernise
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.
- michael barbaro
You said earlier, right, that Roe establishes the period as 24, 26 weeks.
- sabrina tavernise
That’s right — viability. So, it’s way before viability. So, this is a direct constitutional challenge.
- archived recording 4
I understand that some oppose this legislation. I realize that some may challenge it in a court of law, but our job is to do what is right, not what is easy.
- sabrina tavernise
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.
- archived recording 5
I’m signing H.B. 481 this morning to ensure that all Georgians have the opportunity to live, grow, learn and prosper in our great state.
- sabrina tavernise
And suddenly, in January, you start seeing these things passing.
- archived recording 6
The signing of this bill today is consistent with that respect for life, and the imperative to protect those who cannot protect themselves.
- archived recording 7
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.
- sabrina tavernise
So, we have Kentucky, we have Ohio, we have Mississippi and we have Georgia.
- archived recording 8
We are called to be strong and courageous, and we will not back now. We will always continue to fight for life.
- michael barbaro
And all of these so-called heartbeat bills, they’re in direct violation — deliberately — of Roe v. Wade.
- sabrina tavernise
That’s their intent.
- michael barbaro
O.K., 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?
- eric johnston
Well, I spoke with my 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.
- michael barbaro
And what was the idea?
- eric johnston
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.
- michael barbaro
So, you were trying to make a stronger statement with this bill that would establish the personhood of a fetus.
- eric johnston
I don’t know that, stronger, would be the adjective I would use. It would be a clearer statement.
- michael barbaro
O.K.
- eric johnston
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.
- sabrina tavernise
So, this Alabama bill goes farther than any other bill that has passed toward confronting Roe. It’s a direct ban on abortion, right? 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 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.
- archived recording 1
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.
- archived recording 2
Happening today, Alabama’s abortion ban is heading toward a committee vote. The vote could be on the Senate floor by tomorrow.
- archived recording 3
Let’s just bring you some breaking news. We’re just hearing that Alabama state senate has approved a bill to outlaw nearly all abortions, even in cases of incest and rape.
- archived recording 4
The Alabama state senate passed the measure 25-6.
- archived recording 5
Sending the bill now to Governor Kay Ivey’s desk.
- archived recording 6
It’s an extreme law, and they want to challenge Roe v. 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.
- archived recording 7
Breaking news just moments ago — Alabama governor Kay Ivey, a short time ago, citing the most restrictive abortion law in the nation.
- archived recording 8
You certainly cannot deter your efforts to protect the unborn, even if it means going to the Supreme Court.
- michael barbaro
So, by the time Thursday morning rolls around, we have the news that the state has criminalized abortion.
- sabrina tavernise
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.
- eric johnston
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. Once it is passed, before it can go into effect, a lawsuit is expected to be filed.
- michael barbaro
You’re expecting to be sued?
- eric johnston
Of course.
- sabrina tavernise
He passes a bill that he knows and they have intentionally designed to be unconstitutional. And the Planned Parenthood’s and the A.C.L.U.s of the world, they have to respond. Because if they don’t, then it becomes the law of the land in Alabama.
- eric johnston
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.
- michael barbaro
Got it. And then what happens once there’s a lawsuit?
- eric johnston
Well, it goes to the trial court. There’ll be evidence by doctors and expert evidence on 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 the 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. Often times in cases like this, they’ll take two or three cases and look at them and then 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.
- michael barbaro
So, you’re marching your way up every step of the appellate court system all the way, theoretically, to the Supreme Court.
- eric johnston
Right.
- michael barbaro
Eric, we’ve already heard from groups who 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.
- eric johnston
Well, it’s expected. It’s necessary to follow that. There’s no way to get around it.
- michael barbaro
It kind of is essential as a step in this process for you.
- eric johnston
Yes.
- sabrina tavernise
So, you have this very strange —
- michael barbaro
Dilemma.
- sabrina tavernise
Yeah, dilemma, or kind of arms race, 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.
- michael barbaro
Which is, of course, the only place where an unconstitutional law can be made constitutional, because they can overturn Roe v. Wade.
- sabrina tavernise
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 were thinking.
- michael barbaro
Right. So, the hope for those who support abortion rights is the Supreme Court just doesn’t take the case.
- sabrina tavernise
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 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.
- michael barbaro
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?
- eric johnston
Of course.
- michael barbaro
Given how much abortion impacts women.
- eric johnston
46 years of having abortion is a very big obstacle to overcome. 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.
- michael barbaro
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?
- eric johnston
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 might be some defense or red herring the other side may want to throw up, but I don’t agree with that at all.
- michael barbaro
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?
- eric johnston
Two to three years. And there’s an old saying that the wheels of justice grind exceedingly slow, but exceedingly finally. And, so, we expect it 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.
- michael barbaro
So, you’re prepared to lose as much as you are prepared to win in your sense of it?
- eric johnston
Well, yes. I’m not called to win the war, I’m just called to go to the battle.
- michael barbaro
And if you lose, will you just take it up again?
- eric johnston
At an appropriate time, but I’m not going to joust at windmills.
- michael barbaro
Eric, thank you for your time. We appreciate it.
- eric johnston
Thank you very much.
- michael barbaro
Sabrina, thank you very much.
- sabrina tavernise
Thank you, Michael.
- michael barbaro
Next week, Sabrina talks to our colleague, Adam Liptak, about the legal vulnerabilities of Roe v. Wade.
We’ll be right back.
- michael barbaro
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 hard-line 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.
- archived recording (donald trump)
Please, Thank you.
- michael barbaro
And —
- archived recording (donald trump)
We’re here on this very beautiful spring day.
- michael barbaro
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.
- archived recording (donald trump)
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.
- michael barbaro
The so-called merit-based system would focus on immigrants who are proficient in English and have advanced education degrees.
- archived recording (nancy pelosi)
I want to just say something about the word that they use, merit. It is really a condescending word.
- michael barbaro
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.
- archived recording (nancy pelosi)
They’re saying family is without merit. Are they saying that 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? We certainly we want to attract the best to our country, and that includes many people from many parts of society.
- michael barbaro
That’s it for “The Daily.” I’m Michael Barbaro. See you on Monday.