Overruling Roe - Part I

MARY REICHARD, CO-HOST: Back in 1983, a young nurse was left to care for a baby who was miscarried at 15 weeks gestation. A baby whose parents very much wanted a child, and had lost many prior pregnancies in this way. Fifteen weeks was the furthest along the mother had been able to carry. Devastating to go through it again. The baby emerged still alive. A turning point in the life of that nurse.

BECKY CURRIE: You know, it felt like eternity, but I'm talking a good 15 minutes, you know, we, I sat there with her and, you know, prayed and, and sang Jesus Loves Me. And, you know, I was, I was with her when she came, I was with her when she left, you know, and so 15 weeks was where I wanted to get.

Remember that 15 minutes with the 15 weeks gestation baby that miscarried. The young nurse’s short time with that child stayed with her. Even years later when she became a Mississippi state legislator who would make a law that would change the legal landscape of the country.

THEME:

I Clarence Thomas...I Sonya Sotomayor...I Neil M. Gorsuch...I John G Roberts...I Elena Kagan...I Samuel Alito, Jr….I Steven Breyer...I Ruth Bader Ginsburg...I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]

Welcome to Legal Docket, I’m Mary Reichard.

And I’m Jenny Rough. This podcast is from the creative team at WORLD Radio.

MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!

JENNY ROUGH, CO-HOST: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

MARSHALL: All persons having business before the honorable Supreme Court...

MR: Today, the backstory of how that nurse and others in the pro-life movement worked together in the state of Mississippi to directly confront nearly 50 years of Supreme Court precedent.

MARSHALL: God save the United States and this honorable court.

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MR: Less than 10 years after the US Supreme Court decided Roe versus Wade, a young woman graduated from nursing school in Mississippi.

CURRIE: Okay, I'm Becky Currie, and I'm a registered nurse. Long time as a nurse. Graduated in 1979. I still work. I can't do 12 hour shifts anymore, so I moved over to Home Health, and now I take care of the elderly. And, you know, I love taking care of people.

JR: Whether those people are in the earliest stage of life or in the final stage, Currie cares for the weak and vulnerable. Since 2008, she’s also been a Mississippi state representative.

CURRIE: I'm in my fourth term. Four, four-year terms. My state representative retired, and I had always worked on other people's campaigns. And I just decided to do it. I prayed about it and prayed about it. And you know, sometimes, we, and I hope other people do this, sometimes you wonder if it's you or God talking. So I would say, “Okay, I will set this meeting up with this campaign manager. And Lord, if this is my ego, and this is not what you want me to do, just let this meeting go badly.”

JR: But the meeting didn’t go badly. And that’s why she’s still in office today. She hadn’t forgotten that baby miscarried at 15 weeks gestation.

CURRIE: And then, you know, we write this bill and the court changes and when you look back and how it played out, it's all a God thing. It is just all God's thing.

MR: “The bill” she’s talking about is House Bill 15-10, the Gestational Age Act. She helped write it. It said no woman in Mississippi could get an abortion after 15 weeks’ gestation, except for medical emergency or severe fetal abnormality.

That year in 2018, the US Supreme Court bench had 5 justices committed to Roe vs. Wade and only 4 likely against. If that bill became law and someone challenged it all the way to the high court with that balance of justices, Mississippi’s abortion law wouldn’t stand a chance.

JR: But Currie couldn’t worry about that. She focused on her state and her allies to get this bill to the governor’s desk for signature. One ally was co-sponsor of the bill, Representative Andy Gipson. He chaired the crucial House Judiciary B Committee and presented the bill in the Mississippi House of Representatives. Gipson described an earlier effort at unborn protections:

ANDY GIPSON: In 2014, we came up with a bill that had been successfully adopted in other states, and that was the 20 week abortion ban. The actual ban had very limited exceptions for the unborn at 20 weeks gestation. That was a fight to get that passed, but it did make it through the House and the Senate and then signed into law by the governor. It was never challenged. It was never challenged. We were shocked.

JR: Shocked, because 20 weeks is before what’s considered viable, around 24 weeks or so these days. Roe said no restrictions on abortion prior to viability. That is, before a child could survive outside the womb.

So, pro-life legislators kept bringing new bills to the floor; sometimes they’d become law, sometimes they wouldn’t. Gipson, Currie, and many others you’ll hear from put their heads together and made a plan.

GIPSON: So from our perspective, it was not a major step to say let's go from 20 weeks to 15 weeks. I think to the average citizen, that's not a major step. But we knew we were crossing that Roe versus Wade viability threshold and we knew it could be challenged at the supreme court…We were, we were almost guaranteeing to spark a debate whether this baby could live outside the womb for sure or not at 15 weeks, where it might not have been a debate at 19 or 20…So I think it was more medical calculation, medical analysis to go from 20 to 15 to tee that up for the court.

MR: “We” includes the speaker of the house at the time, Philip Gunn. He told me about the big shift in the state legislature a few years before.

PHILLIP GUNN: Since 1876 until 2012, Democrats controlled the Mississippi House. That's not to say that some of our Democratic friends are not pro life, in fact, many of them are. But the emphasis on pro life legislation, in my opinion, did not really reach a focal point or a level of importance until Republicans took over in 2012.

But all the back and forth and heated debates and failed bills had taken a toll on pro-life legislators.

GUNN: And I remember the discussion surrounding this is like, you know, we were tired of this. We have brought forward a number of these bills. They seem to go nowhere. The Supreme Court is not aligned favorably to take these bills up. And we're just beatin’ our head against the wall. And every time we bring one of these bills out, we gotta endure a three hour debate. We just kind of rather not do it. Well, that presented a challenge for us to once again go to the Caucus and say look, we do not need to grow weary of doing good. We’re pro life people, we believe in fighting the pro life cause.

Enter Jameson Taylor, then a lobbyist focused on life, family, and religious freedom.

JAMESON TAYLOR: And so I've been watching this, and I've been talking a bit to our leadership, we had a strong coalition of churches in Mississippi…

JR: By 2017, Taylor had an eagle’s-eye view of what strategy to pursue on the ground.

TAYLOR: And I had a very good feel for what the legislature's appetite was. There's kind of cycles that legislatures go through. For instance, they may do a big education package. Well, you know, right after you do a big education package, it's not the time to bring up another education bill. So that you know, there's just kind of a rhythm to the legislature. And I had an intuition more than anything, that this was the time to do a big pro life bill.

JR: By this point, Donald Trump was president. As a candidate, Trump had presented a list of high-powered conservative judges from which he’d select Supreme Court nominees as vacancies arose. Within weeks of his swearing in… in January 2017… he stepped up the podium.

PRESIDENT DONALD TRUMP: When Justice Scalia passed away suddenly last February, I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court. I promised to select someone who respects our laws...Months ago as a candidate, I publicly presented a list of brilliant and accomplished people to make the American electorate and pledged to make my choice from among that list. Millions of voters said this was the single most important issue to them when they voted for me for president.

MR: President Trump appointed Judge Neil Gorsuch who laid out his judicial philosophy.

JUSTICE NEIL GORSUCH: In our legal order it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives.

JR: So by the time Mississippi started its 2018 legislative session in which the Gestational Age Act bill came up for debate, Judge Neil Gorsuch had become Justice Neil Gorsuch.

MR: But that move was one conservative to replace another and the balance of the high court was still against them, 5-4.

TAYLOR: We were focused on doing something a little bit more incremental. And in particular, with this law, which is a ban on abortion after the first three months of pregnancy. The idea was to challenge the Roe/Casey viability standard.

Taylor got to work keeping the pro life coalitions together to support the Gestational Age bill. It wasn’t always easy to do. Some groups wanted an all-out ban on abortion. This bill didn’t do that. It permitted abortion during the months when around 95% of abortions are done, in the first three months of pregnancy. Elective abortions, not done for reasons of medical emergency or fetal abnormality. Still, Taylor had his reasons.

TAYLOR: Frankly, I don't just work on pieces of legislation with the idea that while we hope this gets challenged in court, and maybe some judge somewhere will uphold it. Rather, my approach is this good policy for the state of Mississippi? And doing that makes the legal defense easier because what we're defending is a legitimate policy. And in this case, a policy aimed at protecting women from the dangers of late term second and third trimester abortions. So I want to point to that that first element of Mississippi being strategic and also being kind of incremental in its approach toward limiting abortion.

One thing a lobbyist like Taylor knows is networking. So he made some calls.

TAYLOR: I had this sense in 2017, leading up to the 2018 legislative session, that it was time to do something big on pro life. And I wasn't quite sure what that should be. So I called up my friends at the Alliance Defending Freedom…

MR: Whose lawyers in turn vetted the bill’s language to ensure the fewest legal hurdles possible. That strategy made sense to nurse and state rep Currie, who talked it over with House speaker Andy Gipson.

CURRIE: He said, you know, we need to do, you know, push, push the envelope here. Two years prior, and in 2016, we had done the 19 week bill, and he said, you know, let's move that down. And let's just, you know, go for it. And we were discussing when do we want to do this, you know, and I had a story about that! And I picked 15 weeks.

15 weeks, the same age as that miscarried baby girl sent to the lab still alive all those years ago. Meanwhile, Alliance Defending Freedom had already been strategizing. Lawyer Kristen Waggoner was among the ADF attorneys who helped with that:

KRISTEN WAGGONER: In about 2016, we decided it was time to make sure that we were putting our strategy to overturn Roe in writing. And so we began that process that included identifying jurisdictions, identifying state officials and legislators where legislation could be passed that would challenge Roe and Casey and then executing that plan with the help of so many others.

JR: The big picture. And the smaller picture, but no less important…talking through the language of the bill:

WAGGONER: And we went through a number of iterations trying to get it right. We also brought in other allies, those who are in private practice, those who are in State Attorney General's offices to talk about what is the best, most sound legal way to protect human life. And so the final plan had a lot of input. We thought initially, we might need to do it in a two step process where, you know, initially, the 15-week law is upheld, and then come back to the court with another law. But we did ensure that there was a footnote draft in that petition for cert that said that the court may need to overturn Roe to uphold the law...

MR: Everything meticulously planned as far as possible; the i’s dotted, the t’s crossed. So that’s how the bill came to be in a prolonged collaborative effort. But it still had to be debated in the state legislature.

JR: Let’s listen to portions of that debate on the Mississippi House floor in early 2018. Currie and Gipson are in the hot seats. You’ll first hear Representative John Hines address Gipson:

REPRESENTATIVE JOHN HINES: I just, I just don’t, I just don’t, I don’t think that men who can go get a vasectomy, who can do what they want to with their body, have the right to tell women what they can do with their body. This is the first time since you have been chairman, I've actually seen you allow a female participate in debate about this subject. And this is very interesting to me.

JR: Gipson referred the question to Currie, the obvious female, but Hines said he wasn’t directing the comment to her. Gipson reminded everyone that this bill protected the mother as well as her unborn child.

HINES: So you feel the need to tell a woman what she should do with her body, with her body.

GIPSON: What I would suggest to you a woman having carried a child for three months to the point the child has a heartbeat, can move, that can be felt to move. You know, those decisions are decisions that certainly could be made earlier and at less risk to the mother.

Gipson followed that up with hard data about risks of abortion to a mother later in the pregnancy:

GIPSON: The science is clear. The risk of maternal mortality increases by 38% with every week after eight weeks gestation. According to the Guttmacher Institute, the risk of a mother dying as a result of an abortion rises more than 2000, get this, 2,200% between eight weeks and 18 weeks of her pregnancy. And in abortions performed after 15 weeks, there's a higher risk of requiring hysterectomy, other reparative surgery or blood transfusion. The state of Mississippi has a legitimate interest in protecting the health of the woman considering abortion. And this is a common sense law.

MR: Gipson went on to say the 20 week ban already the law in Mississippi at the time had not been challenged. That bill contained the same exceptions as this bill: when the life of the mother is at risk and when there is severe fetal abnormality.

GIPSON: But in addition to that, this bill protects the life of the unborn child with a beating heart who can move, hear, taste, see and feel pain. The State of Mississippi has a compelling interest in protecting the lives of the unborn and of the mother.

Representative Adrienne Wooten echoed a much-repeated objection concerning gender:

WOOTEN: I don't think that we should be discriminating about what gender we're going to pass legislation and say that you should and shouldn't do this or that.

Representative Dan Eubanks sought clarification on the core contention of her opposition to the bill:

EUBANKS: Lady, I've been trying to follow you on your logic and I'm having a hard time understanding. Are you saying that if a child is not wanted their life has no value?

WOOTEN: That's not what I'm saying. Are you gonna let me answer your question? 

EUBANKS: Yes, ma'am. 

WOOTEN: That's not what I'm saying. I think that I'm very clear about what my logic is as it relates to this. My logic is that this legislation is not about whether or not children's lives are precious. This, my logic is that this bill is about you all trying to control what takes place in someone else's household.

JR: Representative Sonia Williams-Barnes faulted the legislature because in her view, it emphasized the welfare of the pre-born over the born. Another common objection to pro-life legislation:

WILLIAMS-BARNES: Have we as a body passed legislation to fully fund public education for children? That's the welfare of children. Do we not kill bills that would allow childcare for mothers who have children and work? We kill those bills. That's the welfare of children.

She likely didn’t intend any irony with the word “kill” in that context, but the word hung in the air anyway. Representative Wooten turned to Currie again:

WOOTEN: And so are you aware that babies that are born at 22 weeks, either die or suffer serious disabilities like blindness, deafness, or cerebral palsy? Are you aware of that?

CURRIE: By law, medical professionals have to do resuscitation after 20 weeks due to the, technology has improved. And that was a Supreme Court ruling. So yes, I am aware that they do have problems, but you'll find a lot of parents that whether their child is, has problems or not, they still want that child. 

MR: Wooten asked what right has the state to force a woman to birth a child she doesn’t want? Currie:

CURRIE: Lady, I do believe that life is precious.

WOOTEN:  believe that also.

CURRIE: And I do believe that children are a gift from God.

WOOTEN: I believe that also.

CURRIE: And I think that if you have a child and you don't want it, that there's somebody else that does want it and will love it.

Wooten came back with a sorry fact about the state of Mississippi.

WOOTEN: I think we should talk about the fact that Mississippi currently has 6,000 children in foster care. Now, why do you think that those children are still in foster care? The lady said that somebody would want the children that you're forcing a woman to have. Well, if somebody wants them, how is it that 6000 children at this date and time remain in foster care. So now you tell me how this is going to resolve these issues? It's going to further worsen the issues.

Representative Christopher Bell asked a technical question of Currie:

BELL: What are the steps, the processes, that have to take place before one has an abortion?

JR: Currie layed out the steps: a woman misses a few menstrual cycles; she has three months to learn she is pregnant and decide whether to terminate the pregnancy.

CURRIE: If you decide you want to terminate your pregnancy, you make an appointment with an abortion clinic. You go in, they go through all of your paperwork with you. You sign and and have an abortion.

BELL: Don't we already have this in law?

CURRIE: Not this, gentleman. It's 20 weeks. We're only reducing it to 15 weeks.

MR: Well. There’s the hitch in the pro-choice side of the debate. They didn’t stop the 20 weeks’ gestation bill, which reads just like this one… except five weeks earlier in the pregnancy. On what principle would legislators decide 20 weeks gestation is worth protecting, but 15 weeks gestation isn’t? Each is pre-viability.

JR: One side arguing about the sanctity of life. The health of both mother and child. The other side arguing logistics and poverty. And arguing over what really matters here. Representative Hines and Speaker Gipson:

HINES: Maybe you can explain this to me how we're gonna cherry pick? How we're gonna protect women's rights, or we just don't choose to do what y'all deem necessary as best for women. Which one we're gonna, we're gonna do it for real or we're gonna play the game?

GIPSON: Let me be very clear. We're not cherry picking anything. …later…But I do think it's interesting that that America, the United States of America is one of only four countries in the world that allows unfettered abortion after 12 weeks. Two of the other four are China and North Korea. Do we really want to be in the company of these folks?

JR: Currie’s closing statement directed to Representative Wooten was blunt:

CURRIE: So all those children that were born in an unhappy situation? Do you actually think that they would have been better off dead?

No answer came to that question. It was time for a vote:

GUNN: OK, let the house come back to order. It's time to vote on the bill. Question occurs on House Bill 1510. Open the machine Madam Clerk, If you favor the bill, vote aye. If you're opposed vote Nay. Is everyone voted? Has everyone voted? Close machine Madam Clerk. Vote of 79 yeas 30 nays. The bill passes.

JR: But it still had to go to the senate for further debate. Senators proposed amendments, such as removing criminal penalties for abortionists. That one passed. State senator Joey Fillingane defended the bill when viability questions arose:

JOEY FILLINGANE: So the the viability question really is not what the US Supreme Court is concerned with anymore. They're concerned with whether this places an undue burden on women obtaining a lawful abortion.

The opinion in Planned Parenthood versus Casey in 1992 abandoned the viability standard laid out in Roe v Wade. That’s the “undue burden” opinion Fillingane mentioned. He handled the objections, citing science, health, and the law.

Some senators wanted an exception added for cases of pregnancy that resulted from rape or incest, which this bill does not contain. When answering that proposed amendment, Fillingane homed in on this particular bill and what it already allows:

FILLIGANE: This bill does not need to speak to that and does not speak to that because during the first 15 weeks, even under the language of this bill, you can get an abortion as a pregnant mother for any reason, or no reason at all. You don't have to give a stated reason. You don't have to explain your reasons for that. And so this this amendment, obviously, is being offered to try to muddy the waters of this particular piece of legislation. It was not in the 20 week bill, which is current law in the state of Mississippi. And it doesn't need to be in the 15 week bill again, because you can get an abortion for any reason through the 15th week.

JR: Pushback came from Senator Deborah Dawkins.

DEBORAH DAWKINS: And I know that I'm not the only one that had someone in their high school class, walking around in a winter coat about mid March, because she didn't want anybody to notice she was pregnant. Because she didn't want to tell she was pregnant, because she was, she didn't, she had just made the transition into noting that she had to do something, but she just hadn't done it yet. And that's the girl that I'm standing up here for. It's not me, someone else that that really, you know, the 15-week deadline is just not, she is just not going to make it.

Still, the reality of the unseen other couldn’t be ignored. Senator Angela Burks Hill took up that:

ANGELA BURKS HILL: But when you take a baby, and you have to crush the skull and take it apart, piece by piece, to get it out of a woman's uterus, and you have to catch the remnants in a suction cup and then go to the sink and count them out and make sure you have two hands, two feet, a skull, a spinal cord. That's just wrong. It's inhumane.

MR: Debate time ran its course and it was time to vote. Speaker Gunn announced the senate tally:

GUNN: By vote of 35 yeas 14 nays, the bill is passed.

JR: So, HB 15-10, the Gestational Age Act bill, started in the house, went to the senate where it was amended, the house concurred in the amended version and finally the bill arrived on the governor’s desk for signature.

GUNN: Phil Bryant was our governor at the time, another pro life champion. And he was quick to sign it. Obviously, it got challenged immediately by the pro choice crowd and the Federal Court struck it down.

MR: “Challenged immediately” is an understatement. Jameson Taylor:

TAYLOR: And after the law passed, as the governor predicted, Phil Bryant, the governor joked that we would probably be sued in about half an hour. I think it was closer to about three hours after the bill signing.

JR: The Jackson Womens’ Health Clinic and its abortionist Sacheen Carr Ellis sued to block the law. The named defendants were the state officials responsible for enforcing the law. At the time, the state had a Democrat Attorney General who was obligated to defend the new law in court. Again, Jameson Taylor:

TAYLOR: Now he was pro-life, as are many Democrats in Mississippi. But could he have given the law a better defense? I think so. So we lost at the federal district court level, and then we lost also at the Fifth Circuit Court of Appeals. But we had something interesting happen.

MR: That “something interesting” entered the picture in 2019: the first Republican attorney general since Reconstruction in Mississippi. Lynn Fitch wasn’t considered the most pro-life candidate in the race for attorney general. But as she told me:

LYNN FITCH: Well, this was a huge opportunity. When I took office, this law had already been passed, the Gestational Age Act. It had failed at the district court and even at the Fifth Circuit. So when I got to the office, this case was sitting here waiting on me as the attorney general. …We didn't hesitate, we jumped right in.

Her office filed a writ of certiorari with the Supreme Court to defend the law against the abortion facility that sued to stop it. Fitch’s defense of the law had two prongs. First, the brief.

FITCH: And we had to go straight to the question: we had to ask, overturn Roe v. Wade. We couldn't hesitate; we had to jump right in and make that very clear that that was going to be the nexus of our brief. We had to message early on that we knew we had this special opportunity.

Prong two? Careful messaging:

FITCH: And so we knew that, as we argued, as we prepared our brief as we message that certainly abortion diminishes the dignity of women, of children and of life itself. So what we wanted to do was start right there and talk about uplifting women, and not taking advantage of them when they're most vulnerable.

JR: That message meant tackling head on the challenges brought up by the pro-choice crowd:

FITCH: But there had been that stigma that we didn't have an interest after the children were born. So we had to look at it from a whole different approach. So messaging, strategy, all went into that together, you know...We had to write our brief, we had to prepare our argument, and the key was to empower women and promote life…

JR: In May 2021, the Supreme Court accepted the case for review, after many delays and conferences by the justices.

FITCH: And so having that strong argument and we were prepared, we were ready. And then the whole messaging across our country about empowering women and promoting life. That just, that just blows me away. It just changed the whole narrative. It changed the way people talk about abortion.

MR: So, there you have it: How a coalition of pro-life workers worked together to do what seemed an impossible dream for a half century. Like minded people from different fields of work strategized, consulted with one another and collaborated to write sturdy legal language.

JR: Next week, we’ll bring you the battle at the Supreme Court along with perspectives from both sides of the abortion debate and expert analysis of the final opinion.We’ll end today with a prayer offered by Reverend W. Ross Blackburn with Anglicans for Life. You’ll hear more from him next week, as well.

W. ROSS BLACKBURN: Lord God, thank you for creating human life in your image. Thank you for my life and the lives of those I love. Thank you for teaching us through Scripture the value you place on life. Help me to uphold the sanctity of life in my church and community. Give me the strength to stand up to those forces that seek to destroy the lives of those most vulnerable, the unborn, the infirm and the elderly. Today I commit myself never to be silent, never to be passive, and never to be forgetful of respecting life. I commit myself to protecting and defending the sacredness of life according to Your will, through Christ our Lord. Amen.

MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.

JR: And I’m Jenny Rough.

MR: We’re the hosts each week, and we write the scripts.

JR: Our script editors are Nick Eicher and Paul Butler, who is also our producer. Lillian Hamman helped with audio.

MR: We want to thank the people who gave us their time for this part one of our Dobbs coverage. State of Mississippi officials, and I’ll use their titles at the time of HB15-10’s passage: Attorney General Lynn Fitch, House Speaker Philip Gunn; Representative and chair of the House Judiciary B Committee Andy Gipson, Senator Joey Fillingane; and Representative Becky Currie. Also, lobbyist Jameson Taylor and ADF attorney Kristen Waggoner. And the Rev. W. Ross Blackburn with Anglicans for Life.

JR: Finally, you’ve left us so many ratings and reviews that during season one, we made the top 10 on iTunes for our category just long enough to get a cup of coffee.

MR: Despite that short amount of time, we really were encouraged by it! We’re a tiny team of dedicated podcasters and we compete with some really big players! So, if you value this podcast, won’t you tell your friends and encourage them to leave a review, too!? And from the bottom of our hearts, truly, thank you for listening.

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