Meet the Lawyer Behind Alabama’s Abortion Ban

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Collin Hansen: Eric Johnston passed the bar exam and started practicing law in 1973, the same year the U.S. Supreme Court handed down its decision in Roe v. Wade legalizing abortion on demand. As the founder and president of Alabama Pro-Life Coalition, Johnston has spent much of his legal career fighting to end abortion in this country. Johnston helped to write the Alabama Human Life Protection Act, which makes providing abortion a felony, except in cases where there is a serious risk to the mother’s health. Many expect the new law signed by Alabama’s governor on May 15 to make its way to the Supreme Court where it could potentially overturn Roe v. Wade. Eric Johnston is an attorney in Birmingham, Alabama where he is a member of Briarwood Presbyterian Church. He joins me today on The Gospel Coalition podcast to talk about the legal fight for the right to life for all people.

Eric, thank you for joining me on The Gospel Coalition podcast.

Eric Johnston: Thank you very much. I’m glad to be here.

Hansen: How did you become involved in the effort to make abortion illegal in Alabama?

Johnston: Well, it goes back to not long after I started practicing law, I got interested in constitutional issues and abortion at that time was becoming a very hot topic of discussion. When Roe was first decided in ’73, there was not a lot of discussion about it. Frankly, most people didn’t know much about it. And particularly in Alabama, it was not something that was discussed or considered that much. So, when I got out of law school though, it was in two, three years, I got interested in constitutional issues in Roe and the decision that it made was one of the most significant things. It was then becoming important.

Hansen: So, there’s a lot of discussion, of course, including in recent days about the morality of abortion. But could you explain what’s wrong with Roe v. Wade from a legal standpoint?

Johnston: Well, Justice Thomas has said it several times and sums it up real well by saying simply there is no constitutional basis for Roe. And he’s right. Roe was a manufactured court decision that the justices on the court at that time, and there’s documentation to support this comment that they were saying, “We know there’s a right to abortion in the constitution, we just need to find it.” They were interested in creating this right to abortion and of course, the constitution does not mention abortion.

Unfortunately, it does not specifically define a person to include the unborn, so when the constitution was written, the unborn and abortion and those things were not an issue. But all through history, until ’73, except for you know, some limited number of people, the unborn child was considered a person. And when Roe made his decision, it basically said the unborn child is not a person entitled to the protection of the law in the United States Constitution.

Hansen: Fast forward then a couple of decades, Planned Parenthood versus Casey, a decision that many expected to perhaps overturn or at least curtail Roe and its companion decision Doe versus Bolton. How did that decision, Planned Parenthood versus Casey, how did that affect a legislative fight against abortion in the past three decades? Not just legislative I guess, but also judicial?

Johnston: Well, yes, and you know, it’s a combination of those things because every law that a legislature passes is subject to review by federal courts. And basically, all of them are. Casey was the culmination of what we believed would be 20 year strategy to reverse Roe v. Wade. There was a discussion among lawyers that you know, within 20 years we will reverse Roe and we will work toward that goal.

And in the late ’80s there were court decisions that we felt led us to believe that well, Roe is close to being reversed. And we thought that case would be Planned Parenthood v. Casey from Pennsylvania. There was a very strong pro-life governor. A very strong law attacking Roe. But when it was decided by the Supreme Court, we were surprised. Justice Kennedy and Justice O’Connor, both justices who were religiously conservative, Roman Catholic. You know, Catholics are very protective of life of unborn life, but they went the other way. And it was a fragmented opinion. It’s what’s called a plurality opinion. It was not real clear. A lot of different separate opinions written by the justices. But in the end, it confirmed, or rather, affirmed Roe and described laws that create an undue burden on the woman’s right to abortion would be unconstitutional. So we’ve been struggling under that “undue burden,” fighting for all these years, since ’92.

So when we worked up to ’92 and we thought we’d have it reversed and it did not, then it was necessarily a regroup and decide well, as long as the Supreme Court is constituted by the people that are on it are ones like them, there’s no point in attacking Roe again, we don’t wanna create another bad precedent.

So then we, in Alabama, you now, I can’t speak for the rest of the country, we formed the Alabama Pro-Life Coalition and it was actually formed in 1990 to participate in a reversal of Roe, which didn’t happen in ’92. So then we began to write laws that would regulate abortion for the purpose of improving the healthcare of women because of abortion clinics provide usually substandard health care and we’ve had that experience many times in Alabama and also for reducing the number of abortions. So we always introduced regulations that we thought were reasonable. Of course, federal courts always found problems with what would appear to be reasonable to the rest of us. But most of our laws were upheld and provided good care to women and reduced the number of abortions in Alabama and closed a number of the clinics here.

But coming up to last year, we saw, like a lot of other people around the country saw that there was change. They were two new justices and there were a number of factors and we can discuss those if you’d like. They led us to believe that maybe it’s now another time to have a realistic review of the Roe v. Wade decision.

Hansen: Yeah. Let’s talk about some of those other factors. You mentioned Casey, back in 1992, you mentioned O’Connor and Kennedy both appointed by Republicans and it was a five-four decision, correct? So either one of them having taken the different view could potentially have overturned Roe v. Wade. Help us to understand some of those factors that play into this situation. Now, I had a colleague asked me yesterday about Justice Kavanaugh in particular with the presumption that Kavanaugh was only voted for by at least one pro-choice Republican because she expected or was perhaps even promised that he would not vote to overturn Roe v. Wade. So help us to understand a little bit of some of those other factors that led you guys to make this decision now.

Johnston: Yeah, well, Kavanaugh did tell the senator from Maine that Roe was settled law, but when you’re discussing law before the U.S. Supreme Court, nothing is ever settled. Cases and issues are always possible for further review, which frequently happens because there’s so many details or facets to cases into issues that bring them back to the court. And just last week, the Supreme Court reversed a very long-held opinion that they had rendered. O’Connor and Casey, her reason for not wanting to reverse Roe, well, it was precedent and we don’t want to make the court look bad and reverse ourselves, which is not a really good reason not to do the right thing.

I think if she had done the right thing, probably she would have said, you know, Roe was bad law and notwithstanding the fact that it’ precedent, it was done by some liberal jurists who are on a hunt to find the right to abortion that didn’t exist in the constitution.

So when we had Kavanaugh appointed, I don’t know what commitments or what he said privately to some of the people, some of the senators, but I think he was pretty clear in his testimony. One way or the other you could not judge whether he would reverse Roe or affirm Roe. I think, and Gorsuch it’s the same way. There’s not a track record for either of them about how they might rule on Roe. Chief Justice Roberts, that seems to be the weakest link in the chain that we worry about has written though opinions that seem to suggest that he does not agree with Roe.

Anyway, we now have a court after 46 years from Roe, and since 1992 with Casey that possibly might review Roe. And so we think that….And then unique to Alabama is, in the regular session of the legislature last spring they passed a proposed constitutional amendment and it was affirmed by the people overwhelmingly in Alabama in November in the general election. They said that the unborn child is entitled to all the rights and privileges and protections of Alabama law. It made no exceptions for anything it just said the unborn child is a person.

We have a justice department that’s favorable to pro-life issues. And not that this is a federal issue as such, but in these kinds of issues, the justice department often joins in with an amicus brief and sometimes even as a part of the whole argument. Also, you see a number of states passing heartbeat laws on the one hand, and you have states like New York and others considering, but New York did pass a law saying you could have an abortion throughout the entire nine months.

So people are seeing that there’s something, you know, in the wind, something is changing on this. And we believed here that yeah, something is changing. Probably the most significant things that change the makeup on the Supreme Court because until that happened, and you had jurists that you thought might reverse Roe, then there was no point in attacking Roe. But I think now that we believe that and we hope our statute will become a case and be reviewed by the Supreme Court,

Hansen: The fear was Roberts is the same as it was with O’Connor, right? That he seems to have some view of the court’s responsibility in continuity with its past and precedent, or are there other concerns with Roberts? That’s the one I’ve heard most often.

Johnston: Yeah, that’s correct. And he’s also like Kennedy who turned out to be the swing vote on many social issues. And so, you know, there’s a lot of fear that Chief Justice Roberts, you know, wants to try to make peace and just work through the issues that the court gets and not create problems. And like, you know, people may say, “Well, Justice Clarence Thomas is always ready for a fight.”

You know, I think Supreme Court justices have to disregard what they think is popular and do the right thing. And sometimes we may disagree and that’s why we have cycles through the court of Conservative and liberal jurist. And you know, Kennedy actually on social issues turned out to be one of the most liberal.

Hansen: Yeah. How did they explain themselves with that view of precedent when you consider that everyone would argue the Supreme Court has made mistakes in the past. You don’t have to look further than Dred Scott or Plessy v. Ferguson in that case. You could go much further with that. But how do they make the case with Plessy? I mean, I understand that there’s a certain respect to that historic decisions. I’m a conservative so I can relate to that argument. But then we have clear decisions that were wrong that have been overturned much to everybody’s appreciation. Can you explain that at all?

Johnston: Well, I think with the abortion issue, there’s a dynamic there that I have not seen in anything except in racial issues. You’re right, you know, Dred Scott v. Sandford was in 1856. You know, we still have racial issues in this country. We still have cases decided in the ’50s and ’60s and the Civil Rights Act of 1964 trying to address the improper view of African American people from 1856 and prior to that time. Abortion is an issue that has not gone away. It has increased in intensity over the years. There’s no middle ground on abortion. You’re either a person or you’re not a person. So that’s why the sides are polarized as they are. And that’s why they’re so different. But because of the, I think all the dynamics of Roe, the justices have been very sensitive to reversing it because I guess they think it will create an upheaval in the country.

And I think, you know, at 46 years there will be change and there will be things to be addressed. And I think at that point, the pro-life community will need to turn its attention to helping women who more narrowly may have gotten an abortion, who now cannot get an abortion, to give them support, to help them medically, financially, emotionally to do everything they can to help women through adoption, through, you know, providing a home from the living and whatever it takes. Pro-life community will need to step up and do that. But you know, it’s all part of the whole big issue of abortion which is so sensitive and so difficult.

Hansen: Yeah, I would say it’s certainly possible and I would expect that there would be maybe a pendulum swing in popular opinion of Roe v. Wade is overturned. Perhaps a lot of states that even were banning abortion before 1973 might reverse course since then and then make it possible. Yet at the same time, I would argue that what we have right now is upheaval. If anybody expected Roe v. Wade to make the issue go away, it certainly has not. I think it remains the number one moral issue in our political discourse today whether we want it to be that way or not.

Another question, just legally speaking here, so many different laws that you’ve pointed out here that could amount to challenges to Roe v. Wade. Is it possible for more than one of these laws to make it before the Supreme Court? Might they all be sort of thrown together in one sort of significant challenge or how do you perhaps anticipate some of these next steps to look like?

Johnston: Yeah. Okay. On the issues like the Supreme Court may take two or three cases. As you mentioned a moment ago, when Roe was decided in ’73, there was a companion case, Doe v. Bolton. The cases that are out there now, the heartbeat cases, and there are several of those laws that had been passed, they are like the Alabama bill or law in that they prohibit abortion prior to viability. That is when the child can live outside the womb, which is about 20 weeks for some several week margin of error. Heartbeat goes down to like 8 or 10 weeks, maybe some say 6. I don’t know that you can really get a good heartbeat at six, although there is a heartbeat, but normally it’s not detectable enough where you could, you know, maybe set a standard to keep the abortion from happening. Our bill probably would go down to maybe two weeks and I’ll explain in a moment why it’s about two weeks.

But all of those are pre-viability prohibition bills which are not permitted. Roe and Casey. The state can only regulate or prohibit abortions at some point after viability. So a combination of these cases could go to the U.S. Supreme Court and probably would, we just don’t know which one. It may not be Alabama. It may not be Georgia. It may not be Ohio. We just don’t know. But I think the question is significant enough, and I think that there are probably four justices on the Supreme Court now that would agree to review. And that’s one of the factors I failed to mention. It only takes four justices to agree to review a case.

Hansen: I did not know that. I did not know that.

Johnston: It does not take five. It takes five to reverse, but four. If four want to grant certiorari, the discretionary review by the Supreme Court, then the court would review it. So now we think we’ve got four votes there to do that. And that’s one of the reasons why now appears to be a time after all these many years.

Hansen: So the thought there is you don’t know if it might be Roberts or Kavanaugh or Gorsuch, but at least one of them or two of them.

Johnston: Yeah. Two of the them, plus Alito and Thomas. I don’t think there’d be any question about them joining in with it.

Hansen: Yeah, no doubt. Right.

Johnston: So, yeah, I mean you got three others to choose from and then you know, there’s some degree of certainty or hope with the amount of surety that, you know, two of those guys will join with the other two and we’ll get a review.

Hansen: Right. Certainly, one of the more controversial aspects to Alabama’s law is the lack of exceptions for rape and incest. You just explain your perspective on why it doesn’t include those exceptions?

Johnston: That is a very difficult issue. And that question came up in both the house and the Senate during the passage of the bill and then we explained on multiple occasions and tried to sense, but there seems to be a deafness about it when you try to tell it to people. And you have people like Trump and Kevin McCarthy and Pat Robertson and others saying, “Well, it just goes too far. You got to have those exceptions.” If they understood the issue, they would understand why the exception should not be there. And that’s why it passed in Alabama without the exception. Although we did have a few Republicans and then all the Democrats, you know, they were voting against the bill anyway. But we are saying that the unborn child is a person under our amendment two. Not that it’s controlling law, but it says “unborn child.” It doesn’t say “unborn child except those born of rape or incest.” It just says “unborn child.”

The science and the biology of it is that the unborn child regardless of how it’s conceived is a person. Whether it’s by consent, whether it was by accident, whether it’s by rape, incest or artificial insemination. When the child is conceived and grows, it as a person. And so we couldn’t put an exception in there and then at the same time argue legally that on one hand, it’s a person, but one hand, it’s not a person. That probably would have killed the bill probably and probably would’ve killed, even if it had passed any oral arguments that we could make to the judges when the judge says, “How come it’s a person here but not here?” If it’s a person, it’s a person. And if it’s a person, it’s entitled to the equal protection of law under the 14th amendment. So in effect, what we’re gonna have, if the argument holds, is a reversal of Roe.

And if that happens, the possibility exists…states like New York, their laws of abortion through nine months won’t be enforceable.

But there’s one caveat we always got to keep in mind. You cannot predict what courts are going to do. And so they may go off on a tangent, they may go off on a really small issue and not decide it at all and send it back for more review. There’s just a variety of things that could happen. But you know, we think the best scenario is they will find it a person and then all 50 states and their territories will be under that requirement to protect the unborn lives of children.

Hansen: Yeah. It seems like the intent of the arguments about rape and incest are emotive. And likewise, another one of those arguments you hear is that the law was passed by “25 white men.” Explain response to that characterization of the legislation as well?

Johnston: Well, the primary sponsor of the bill was a woman who is a mother and who provided her own testimony before the committees as well as her advocacy as a legislator. The majority of the people in the Alabama legislature are men. And so we can’t help it if they are men there. It is not men telling women what to do. The other side gets quite vociferous about that and argumentative about it and aggressive about it, but you know, it’s the way the makeup and you know, women are just now coming in more significant numbers to the U.S. Congress. So I don’t think it’s a man and a woman issue. You know, the whole issue is very emotional for everyone, particularly on the rape and incest exception. And again, they are for those kinds of instances, we don’t disagree with the opposition how terrible it is, but rather than compound the problem with taking one’s child’s life and making it pay the penalty for the criminal act, we need to help those women. And we need to help those children. Whether we’re men or women doing it. We all need to work together to do that.

Hansen: You mentioned that if, say Roe v. Wade is overturned, then the pro-life movement needs to focus on those mothers to help them to carry the children to term and to take care of them themselves or to put them up for adoption. But I wonder in some ways, doesn’t that play into the critique of the pro-life movement that the pro-life movement doesn’t care about those women, at least right now, that they only care for that child right now, but it actually seems like there are… I mean, that work is already happening. I don’t know that we need to wait or that people are waiting for a decision on Roe v. Wade to be able to do that work. So can you help to understand what you’re seeing in Alabama and elsewhere related to helping women to make this decision for life even now, regardless of Roe v. Wade?

Johnston: We do need to step up. We do need to have more money made available through the government. And there was a lot of criticism that came from Democrats who opposed this bill saying we don’t give enough money for Medicaid and other things for needy people. That’s another issue and there’s a lot of other dynamics involved in it that are totally unrelated to the abortion issue, but it’s true. We need to help the poor. The poor will always be with us as Jesus said. We need to help the poor and make that part of our mission.

The pro-life community though has not been missing in action though on helping women. Back in the ’80s, I helped form the Save a Life Ministries, which are crisis pregnancy centers or care centers that have provided services for decades now to women who are having problems. And women can go there, there are no charges. And I think it was 2016 in Alabama over $3.5 million worth of services was provided by the pregnancy care centers here. They gave counseling to over 53,000 women and their families on the problems they were facing. They did over 15,000 pregnancy tests, free of charge, all that free of charge. They provided counseling, free medical advice and services.

That will expand. I mean, those ministries are there to help women and they’re all over the country. And they are more of them in this part of the country than there are some of the other parts which are more condoning of abortion. But I think these types of efforts by nonprofit organizations, probably some commercial organizations will get involved, and certainly the government to step up and provide all that is needed to take care of the women in these bad circumstances.

Hansen: Well, Eric Johnson has been my guest on The Gospel Coalition podcast. Founder and president of Alabama Pro-Life Coalition. I just wanna say, thank you. Thank you as a fellow resident of the state of Alabama and on behalf of The Gospel Coalition, I just wanna say thank you for your advocacy. And would you mind if I prayed here to end?

Johnston: No, not at all.

Hansen: Pray for your work? Let’s pray together.

Heavenly father, we thank you for life. We thank you for granting us that most treasured privilege and we pray, Lord, that that gift of life would be extended to all, all of those creatures, all men and women made in your image. We thank you for this recent decision, this recent law here in Alabama. We pray, Lord, that it would carry through to overturn Roe v. Wade. But more importantly than anything else, God, we pray that you would give us in this country for your sake, a culture of life throughout life that we would take care of all who are made in your image for your sake and for your glory. So Lord, thank you for Mr. Johnston’s work and for all others who are on the front lines of seeing that happen. We pray, Lord, for even those men and women right now, those mothers especially making these decisions, Lord, help them to choose life and surround them with supportive communities, especially the body of Christ, your church to be able to help them to care for these precious little ones. In Jesus’ name, we pray. Amen.

Johnston: Amen. Thank you.

Hansen: Well, thank you so much. Again, we appreciate your work and thanks for joining me on The Gospel Coalition podcast.

Johnston: Thank you very much for having me.