Birmingham attorney Eric Johnston, who has drafted more than 12 anti-abortion laws for Alabama, including an almost total ban passed earlier this year, said today his plan to overthrow Roe vs. Wade was right on time.
This morning, U.S. District Judge Myron Thompson issued an injunction to prevent Alabama’s protection of life law from coming into force on November 15.
“We expected that to happen,” said Johnston. “It’s part of a process. When we passed this law, people said, “Don’t you know it’s unconstitutional?” Under Roe, it’s unconstitutional. We know that we will be enjoined at the appeal level. Then it’s up to the Supreme Court to decide whether it wants to hear this case. It is completely normal and normal. Justice Thompson, whatever his predilections on the issue of abortion, is required by law to find it unconstitutional.
Johnston, chairman of the Alabama Pro-Life Coalition, has been one of Alabama’s most prolific law drafters for the past three decades, working with conservative lawmakers to pass laws such as the Act of parental consent to the practice of abortion on minors of 1987, the law of abortion of the viable unborn child of 1997, the law of 2002 on the right of the woman to know, the law of 2011 on the protection Alabama Pain-Altering Unborn Child, Federal Abortion Warrant Withdrawal Act of 2012, End of Ectopic Pregnancy Act of 2012 Act of 2013 Women’s Health and Safety and the Dignity of Unborn Life Act 2016.
This was all aimed at making abortion laws in Alabama more stringent. With Alabama’s Protection of Life Act, Johnston set out to overthrow Roe v. Wade. Rep. Terri Collins sponsored the bill in the state House of Representatives.
New Supreme Court Justices
What has encouraged Johnston and the lawmakers he works with is the appointment of two new U.S. Supreme Court justices, Brett Kavanaugh and Neil Gorsuch, since President Donald Trump was elected in 2016.
“The catalyst was putting Kavanaugh on the pitch,” said Johnston. “With Gorsuch, you still didn’t have a 5-4 vote. (Anthony) Kennedy, an abortion rights advocate, has retired. Kavanaugh took his place. So, then, there is a possibility of five votes. So, for the first time in 46 years, we have the possibility of Roe being examined in a meaningful way.
Johnston focused on the issues raised in the majority opinion in Roe v. Wade, authored by Judge Harry Blackmun, which found that a woman’s right to abortion was protected by a constitutional right to life. private, based on fetal viability.
“For the very first time we have to get Roe looked and examined this about Blackmun, if science can prove he’s a person then we have to protect his rights,” said Johnston. “This is what we are looking for.”
Johnston ignored other laws that spoke of a detectable heartbeat as the start of viability. “Once the fertilized egg is implanted, it’s in the uterus,” Johnston said. “It doesn’t make any difference if it’s viable.”
When life begins
Johnston defined early life as the implantation of the fertilized egg into the uterine wall.
“You can prove it,” said Johnston. “You can prove that it was a fertilized egg that was implanted. You cannot prove that an egg and a sperm go together. We’ve all seen movies about what’s going on, but it’s in a petri dish with a microscope. “
Implantation of a fertilized egg makes it a scientifically provable point to establish the start of life, Johnston said. He said the efforts of other states to pass “heartbeat” laws are not a good basis for overthrowing Roe v. Wade, because the timing of a heartbeat is not precise and detecting a heartbeat relies on equipment that can vary.
“It doesn’t make him a person anymore because of a heartbeat,” said Johnston. “They didn’t understand the need to allege and prove that the unborn child is a person, because that’s the basis of Roe. If you do the heartbeat, it doesn’t even talk about personality. It speaks of a heartbeat. This means that you can stop the abortion after this period. This does not apply to Roe v. Wade. Roe v. Wade talks about sustainability. And if you want to talk about viability and pre-viability, then that’s the whole area, not just half, not just 10 weeks. The unborn child is either a person or it is not a person at that time. “
The science surrounding pregnancy has made spectacular progress since 1973.
“In the 46 years since Roe’s decision, there have been tremendous advancements in medical science,” said Johnston. “These developments include ultrasound, (detection) of fetal heartbeats, capable of feeling pain. We passed a (law) capable of suffering because there was evidence that the unborn child could recoil because of the pain. All of these factors, we hope, can prove what Blackmun was talking about, that the unborn child is a person. “
On the wall of his US office 280, Johnston displays an image of Congress debating the Compromise of 1850, a package of five bills passed to defuse a confrontation between slave and free states over the status of territories acquired during the Mexican-American war.
For Johnston, the abortion issue is the current version of the slavery debate, a defining moral issue of the time.
No rape, except for incest
Johnston, a constitutional law scholar, has urged state lawmakers that no exceptions for rape and incest be attached to the definition of life.
“We wanted a clean bill,” he said. “We didn’t need any amendments on this. It brought up this whole rape and incest business. It would be inconsistent to say that an unborn child is a person within the meaning of the Constitution, if it is conceived by consent or by artificial insemination, but it is not a person if it is conceived by rape, incest or accident. They just don’t make sense. It’s a person, no matter how it’s designed. We explained this to the members of the Legislative Assembly. The rape and incest exception is very moving, people just got pissed off about it, and we said we sympathize with you, and at some point in the future if the United States Supreme Court- United cancels Roe but she allows this exception, then you can reconsider it. But at this point we needed a clean invoice. We had to present proof directly to the court that the unborn child is a person. If we have to try to explain it as a child conceived through rape is not, it might hurt the whole effort. They could rule it out and say it’s inconsistent. I do not know if the Supreme Court will consider any of these elements. It’s discretionary.
The next step
After the passage of the comprehensive abortion ban in Alabama, the next step awaited Thompson’s decision today. The law is now before the 11th United States Court of Appeals for review.
“He’s going to go to the 11th circuit, and they’ll find it unconstitutional, which they are required to do,” said Johnston. “It’s an attack on Roe. That’s the whole point. The goal is to stop the abortion. The process to do this is to pass a law that will get there and that will confront Roe’s reasoning. So I hope Roe will be reversed.
Johnston, an evangelical Christian who attends Briarwood Presbyterian Church, is biding his time for a direct legal attack on Roe.
“The issue of abortion has never receded,” he said. “It’s discussed as much now as at any other time. Both parties are well anchored in their arguments. On both sides, they are very serious, attached to their convictions. But if medical science proves the personality problem, and it resolves, it is not a woman’s right to privacy at this point. It is a question of protecting the rights of the unborn child. “
He knows there is no guarantee that his strategy will work, that the US Supreme Court will reconsider Roe.
“If they take it, we don’t know how they’re going to rule, if they’re going to do something piecemeal, if they’re going to do something unexpected, or if they’re just going to reverse Roe and say that it’s a person, ”said Johnston. . “You don’t know when the Supreme Court will decide that an issue should be considered.”
The Alabama law has drawn contempt from abortion rights advocates across the country.
“If our law is the purest law to attack, then it is the greatest threat to them,” said Johnston.
Abortion as a crime
Alabama law would make it a Class A felony to perform an abortion, unless a process is followed that establishes the medical need for an abortion based on the health of the mother. “First offense is 10 years in prison,” said Johnston. “And so you’re not going to have your regular doctors here giving you abortions because it will be in the best interest of the woman to do it, it will be a document in her file, reviewed by another doctor before she goes.” it’s not over. And so, it will be real medicine, real health care for women, and not just paying a fee for someone to abort your child and put you back on the streets.
High volume political debates don’t mean much at this point, Johnston said.
“It’s out of politics now, it’s in court,” he said. He does not believe that Supreme Court judges will be influenced by public opinion. He believes that Roe v. Wade is a weak decision, and enough judges agree.
“I think it’s because the unborn issue isn’t just a problem for America, it’s a problem for everyone,” Johnston said. “The question of what a person is is common to all places.”
What Johnston hopes is that the law he drafted will give the Supreme Court the impetus and opportunity to thoroughly review Roe v. Wade.
“A meaningful review will hopefully remove it,” said Johnston. “Because what they will see is the humanity of the child.”