In this final episode of the Choosing Life podcast, we speak with those at the center of the headlines related to Dobbs v. Jackson, the landmark Supreme Court decision that legalized abortion in Mississippi in 1973. In this episode, we hear from those in the spotlight of the case, including Mississippi Attorney General Lynn Fitch, whose bravery helped bring this landmark decision down, and Kristen Wagner, President and General Counsel of Alliance Defending Freedom, who partnered with the state in crafting the legal argument for the case.
00:06:50.400What's your emphasis of study and how does your work relate to the Dobbs case?
00:06:55.080Well, I'm a senior legal fellow here in Heritage's Meese Center for Legal and Judicial Studies.
00:07:00.640And I was very closely following the Dobbs case because I recognized that this was an opportunity
00:07:08.040to once and for all put sort of the nail in the coffin of Roe versus Wade.
00:07:13.040Now, personally, I've been involved in the pro-life trenches for many, many years.
00:07:19.320In fact, my first introduction to public policy and to politics was at 14 when I testified in front of the Wisconsin Assembly on a parental notification bill designed to limit a minor's ability to get an abortion without involving her parents.
00:07:37.080So, this is something about which I have been extremely passionate.
00:07:41.620We were involved as a family in the early fight in the late 70s, early 80s.
00:08:00.920So, I have experienced sort of that journey of what it's like to be a mom as well.
00:08:06.100And so, I had a great deal invested both emotionally and legally because I did recognize that this was sort of the culmination of a decades-long battle to finally overturn what many of us considered to be one of the worst precedents in the American Supreme Court jurisprudence.
00:08:25.520I'd love to touch on your last comment there.
00:08:28.320Throughout our journey documenting the history of abortion over the last several months, we've heard a lot of people criticize the legal decision-making in Roe.
00:08:36.640What made it such a legal train wreck?
00:08:41.220It really was a decision that established a right to abortion very much out of thin air.
00:08:47.520And many liberal scholars, as well as conservative scholars, have criticized it for precisely that.
00:08:52.480In fact, it gave no impression of being a constitutional decision.
00:08:56.900Even John Hart Ely, who was an extremely liberal law professor who taught at Harvard for some time, has said specifically it was not a constitutional decision and didn't actually make an attempt to be.
00:09:09.380Justice Blackmun decided that there was a right to abortion.
00:09:13.020He sort of saw the seas changing tide a little bit when it came to the women's liberation movement and to feminist advancements.
00:09:20.420And so he truly found, by way of the Ninth Amendment, a right to privacy applied to the states through the Fourteenth Amendment to the Constitution.
00:09:31.380And by the time we've seen sort of the iterations of that, it expanded what the court had never before considered, which is where those applications of privacy begin and where they end.
00:09:46.020But to say that the right to an abortion emanates from a right to privacy and is applied to the states by way of the Fourteenth Amendment was really the thinnest veneer of legal reasoning.
00:10:02.740It was more about political commentary than it was about law.
00:10:07.040And people have roundly criticized the decision for precisely that.
00:10:11.120Unfortunately, we were left with the stain of Roe when, in fact, in 1992, in Planned Parenthood v. Casey, the Supreme Court was again asked to consider whether or not they wanted to overrule Roe v. Wade.
00:10:24.820And their response was, no, we want everyone to essentially adhere to this as the finalized law of the land.
00:10:33.700And we are affirming, Roe's, what they called essential holding, that there is a constitutional right to abortion.
00:10:41.660And so many of us were waiting with sort of bated breath.
00:11:19.040Now, when I say it was a little bit of both, the Roe Court was not what I would call an originalist court.
00:11:24.960So the court that we have now, the composition of those Supreme Court justices, in large part is an originalist court.
00:11:31.440And they are guided by history, structure, text, and tradition.
00:11:35.740And they look first to the text of the Constitution.
00:11:37.940And there is a difference between enumerated rights and unenumerated rights.
00:11:42.060Now, of course, we know, for example, the First Amendment right to freedom of speech, religion, petition, assembly, and press.
00:11:48.520We recognize those as being enumerated rights.
00:11:51.640But the unenumerated rights are where it gets tricky.
00:11:55.680And this was a consideration stemming from an unenumerated right.
00:12:00.320Well, we find that in something called substantive due process, which is a fancy descriptor for essentially saying, listen, we think based on where history was at the time and what the founders wanted and what is essential to a component of ordered liberty.
00:12:16.060That, in fact, this is a right that should be protected, that was intended to be protected.
00:12:23.560But it's specious to say that when the Constitution was ratified, of course, there was ever the assumption that there would be a protected right to abortion.
00:12:32.640And in fact, for a lot of people, particularly for a lot of liberal scholars, they were up in arms after the Dobbs decision because Justice Clarence Thomas, in his separate concurring opinion, pointed out that substantive due process is a very tricky line of reasoning.
00:12:51.180And it actually has formed the basis of quite a number of sort of these unenumerated rights determinations, including, among other things, a right to contraception, a right to same-sex marriage from Obergefell versus Hodges, a right to interracial marriage.
00:13:08.260And so people read this concurring opinion and were suddenly terrified, determining that they, of course, would now see all of these rights that they've relied on for so many years suddenly rolled back.
00:13:22.300But what I will say to that is that Justice Thomas has correctly, accurately identified that there is a trickiness in when we begin to expand the scope of constitutional rights outside what its original founders and framers intended them to be.
00:13:39.680He identified these rights from which we've pulled from this 14th Amendment, substantive due process, jurisprudence.
00:13:47.760And basically, he said it's formed the basis of too many of these opinions.
00:13:53.360What we need to do is give these issues to the states to determine for themselves.
00:14:01.580In fact, even Justice Kavanaugh, who himself wrote a separate concurrence in that opinion, said specifically, listen, we're not going to revisit all of our 14th Amendment cases.
00:14:14.420And in fact, the majority in writing the opinion, Justice Alito taking the pen, said this is only concerning the right to abortion.
00:14:22.600I think the court rightly recognized that there would be a fair amount of hysteria and flag waving about losing these fundamental social rights that these individuals have relied on for so long.
00:14:35.280But it is very limited to the issue only of abortion.
00:14:39.440Let's talk a little bit about that hysteria and flag waving.
00:14:41.960For the last year, many on the left have loudly proclaimed that if Roe was overturned, that literally any unenumerated right, I mean, same-sex marriage, contraception, a host of others, that those could all be in the chopping block.
00:14:59.640Well, and I think because Alito's majority opinion was so careful to limit it and to make the pronouncement that it was related only to abortion and to no other unenumerated rights, that we can take comfort in the fact that they're not going to revisit this 14th Amendment jurisprudence.
00:15:16.760And in fact, in his separate concurrence, Kavanaugh disagreed with Clarence Thomas and said, regardless of any perception of the 14th Amendment jurisprudence on which we've relied for so many years, we are not going to revisit that now.
00:15:33.120And I will tell you, I don't think Justice Thomas, much as I love his jurisprudence and his particular legal writing, has the votes to take up a case that would determine that these particular rights needed to be eliminated.
00:15:47.560This itself was related to abortion because the decision itself, Roe v. Wade, was so poorly written, it was so poorly reasoned, and it truly was reliant on the thinnest of all constitutional bases.
00:16:05.280It really was, if you've read the opinion, a desperate grasping at straws.
00:16:09.420It was a justice who was keen to sort of move with the social tide, not away from the social tide.
00:16:15.720Right. And unfortunately, it took us 49 years to finally see the court put that mistake right.
00:16:22.660For those who might not be familiar with the details of Dobbs, what were the facts of the case and what was the majority opinion of the court?
00:16:28.920So the case centered on the constitutionality of Mississippi's Gestational Age Act, which put the actual state in between sort of, I would say, a rock and a hard place.
00:16:40.580But in fact, it was correctly and brilliantly positioned to take the issue of viability head on.
00:16:48.720Now, viability, of course, when we know that an unborn child can live outside the room, whether with or without medical help.
00:16:55.900But in drafting the bill and in passing it into law, it was the only law at the time that took specifically into consideration this notion of viability.
00:17:07.020The court from 1973 forward had never considered the issue of viability head on and why they plucked that determination specifically out of thin air.
00:17:18.780Why could a woman get an abortion before a child was viable, but could be subject to certain government restrictions after a child was viable?
00:17:28.360Well, because this took precise aim at why they set that as the dividing line, it was perfectly positioned to take Roe head on.
00:17:37.360And in fact, in open court, the arguments from Mississippi Solicitor General Scott Stewart, he mentioned, among other things, the fact that viability is sort of a moving target.
00:17:49.820In fact, we've now seen that unborn preemies as early as 21 can live with medical assistance.
00:17:58.140So with technological advancements and with the knowledge we have now of fetal development, their pain, what we know about neurological processing, their physiological functions, the advent of 3D ultrasounds,
00:18:12.960we are in such a different phase now in American science and in the pro-life field that they couldn't arguably uphold viability as the appropriate standard, that it was inappropriate and therefore unconstitutional because it did not rely on a foundation that was ultimately solid.
00:18:35.220The response for Elizabeth Prelogger, who is the solicitor general for the United States, who joined with the attorney for the abortionist Jackson Women's Health Organization, basically said, listen, and I will say I have to chuckle at this, very little commentary on law, lots of commentary on social policy, both from Elizabeth Prelogger and the attorney for the women's health organizations.
00:19:04.660Both of them, both of whom could not justify Roe's essential holding, its constitutional basis, its insightful legal reasoning.
00:19:13.180Instead, their arguments were ultimately sort of weighted upon a reliance interest.
00:19:20.540Women have relied on this for too long.
00:19:24.380It's going directly to the issue of women's advancements.
00:19:27.140And in fact, it was one of my favorite justices, Justice Amy Coney Barrett, herself, a mother of many children who understands what it is to be a constitutional scholar and a mom, was very quick to point out that there are safe haven laws in all 50 states in the union where a woman can relinquish her newborn without any fear of criminal prosecution whatsoever.
00:19:54.280And so, in fact, when the solicitor general and the attorney for the abortionist both argued it's too much of a reliance interest, her response was, well, it's really simply that reliance interest that only goes to the issue of carrying a pregnancy to term.
00:20:10.700It doesn't have to do anything with ultimately women's advancement, their opportunity for economic freedom, their ability to move forward in the workforce or their educational opportunities.
00:20:22.600We're simply talking about the period of a few months.
00:20:26.200And if that's sufficient to find a right in the Constitution, then ultimately we have no Constitution at all.
00:20:33.380Justice Kavanaugh had a brilliant line of reasoning describing more than 50 years of precedent that had overturned prior what was considered bedrock precedent.
00:20:45.280Chief among them, I give you Plessy v. Ferguson, which instituted the now fallacious separate but equal that was overturned by the Seminole Brown v. Board of Education,
00:20:56.600and desegregating all American public schools, really a triumph for the Supreme Court, multiple cases like that have been decided by the Supreme Court.
00:21:09.540And, in fact, stare decisis, which is Latin for let the decision stand, something by which the justices are generally bound, it is an opening salvo.
00:21:19.600It is not exactly where they end up if they determine that a previous iteration of their constitutional law is, in fact, incorrect, fallacious, was not constitutional.
00:21:33.220They are wholly within their right to actually overturn that precedent.
00:21:37.760And that's what they decided to do in Roe v. Wade.
00:21:41.100Justice Alito's majority opinion, which, of course, we know now, was leaked in May, differed very little from that leaked opinion in the two months between the leak and the final concretized opinion.
00:21:55.700And, in fact, I believe was brilliantly written.
00:21:58.020He went through 150 years of American history to describe the fact that this was never a right that was intended to be protected, not only just by the framers of the Constitution, but by anyone in a seat of power in government and administration, state by state at the time.
00:22:15.740In fact, there were criminal prosecutions for many women who took steps to end their own pregnancies.
00:22:21.860So to say it was an element of our ordered liberty to give a woman a right to have an abortion was simply wrong.
00:22:29.580His opinion went on to address the fact that there was no constitutional basis for Roe, that they were only addressing the issue of abortion, and that they were, in the end, sending the issue of abortion back to the people and their elected representatives, where they could be debated in the state houses and in an open forum,
00:22:48.920and where those difficult, moral, philosophical, and cultural questions were going to ultimately be answered.
00:22:56.360And that just seems to be something that the current dialogue about Dobbs is missing.
00:22:59.920Every day I see pundits and memes and one-liners about how the court's decision sets women's rights back by decades, but what does the decision actually do to the issue of abortion?
00:23:11.680In fact, by sending this back to the people's representatives, it's really going to be a question that allows answers from the common public in an open forum.
00:23:23.480And, of course, Congress has certain enumerated powers, limited enumerated powers, to decide particular questions of law.
00:23:31.620For example, under the tax and spend clause, it has the opportunity to pass legislation like it did with the Hyde Amendment that eliminates taxpayer funding for abortion.
00:23:42.300So it, too, will have a role to play in this.
00:23:44.820But the primary source of this particular sort of legislative response will indeed be in the states.
00:23:51.380And it will also be with the state constitutions, where now we will see people debate and we will see the courts in the states determine ultimately what their own constitutions mean.
00:24:04.840It's a tremendous opportunity to really vote your values, which I know has been ultimately relied upon for fundraising in the Democratic Party going into the midterm season.
00:24:17.140They've seen a boon to their fundraising platform as well, simply because these are issues that are hotly debated.
00:24:24.640They have always been sort of sacred cows for the left when it comes to the issue of advancement and women's rights.
00:24:32.000But now having an opportunity to ultimately elect people who represent your perspective and to go out to vote on, for example, constitutional referenda that will appear on some midterm ballots.
00:24:46.360Six lawsuits are currently pending right now across the country on particular state constitutions that, in one way or another, either protect life or protect a right to abortion.
00:24:57.780Ten constitutions in total protect the right to abortion as written into the Constitution, some of which are a function just of when those constitutions were ratified because they were so many years, for example, after our own federal United States Constitution.
00:25:15.060But now we're going to have a chance at the most granular level to have an impact to vote specifically, not only for these referenda, but for individuals who represent our perspective.
00:25:28.540It is not just a win for the cause of life, but I consider the Dobbs decision to be also a win for the democratic process.
00:25:36.520Yeah, it strikes me that in contrast to the claim that Dobbs strips rights away from women, it seems to me like Dobbs, maybe in its most fundamental sense, actually gives the power back to the people.
00:25:49.000Yes, it does. It does. And I will say of the three branches, right, the executive, the legislative and the judicial branch, we've seen the judicial branch finally admit its constitutional error and say we were wrong from the beginning.
00:26:01.100We're sending it back to the legislative bodies. Now, we have seen an increase in efforts from the executive.
00:26:06.900We know, for example, that President Biden has utilized something called EMTALA, which is the Emergency Medical Labor and Treatment Act, to try to treat as an emergency abortions and force emergency room doctors to perform elective abortions.
00:26:22.960But the history of EMTALA and the fact that this is ultimately a funding provision for hospitals that take place in Medicare and Medicaid platforms is simply illegal.
00:26:35.260We know it's subject already to one federal court loss. Another is pending as well.
00:26:41.280So we'll see sort of a scrambling, I think, on the part of the executive while the current president remains in office to somehow protect, to crystallize what is left of any semblance of a federal right to abortion when, in fact, none exist.
00:26:57.280And we've made sure in previous iterations of federal law, for example, like the Hyde Amendment, which specifically goes to that congressional power on spending and interstate commerce, they will have already made their pronouncements.
00:27:12.180But I anticipate going into the election season, this is going to be a significant hot-button issue.
00:27:19.540There are going to be numerous attempts, many of which I think will fail federal constitutional muster or an originalist or textualist reading of these statutes as they were passed by Congress.
00:27:32.700But long story short, I think for these battles, many of them, most of them will transpire in the voting booths in November.
00:27:41.520And in that respect, I think it really has allowed these particular women, both pro-life and pro-abortion, to be more involved in the democratic process, giving these women, even those who believe abortion is their fundamental right,
00:27:57.780an opportunity to have an opportunity to have a say, again, at the most sort of microcosmic level, at the place closest to where individuals are led by their government agencies, I think ought to be an encouragement for all of us.
00:28:12.140We don't want the judicial branch plucking a perceived constitutional right out of thin air.
00:28:18.600I think that sends us in a very dangerous direction as a country.
00:28:22.060So now that we're a few months into a post-Obs world, have any of the apocalyptic scenarios come true?
00:28:29.300Because if you go back just a couple months, people were claiming that we were going to be entering a world reminiscent of something like The Handmaid's Tale.
00:28:37.000You know, back alley abortions, women in danger of increased medical risks and death, subordinating women to men's whims and power.
00:28:45.900Did any of these predictions come true?
00:28:47.960Well, I think you've rightly identified the wailing and gnashing of teeth from the collective left over this.
00:28:53.460Again, abortion being the sacred cow, we anticipated that there would be this level of hysteria coming from the left.
00:29:00.060They would be sort of scrambling to figure out how to take any scrap of a federal abortion right and make sure that it was secure when, in fact, they were going to have to get themselves more involved, sort of at the very grassroots level.
00:29:15.320But there are some messy consequences to a democratic decision.
00:29:20.860And in that, I think we need to take heart because our constitutional republic is run in such a way that ultimately an abortion will be easier to acquire in a state like New York or California.
00:29:33.060But it will be harder, for example, in Texas and Mississippi.
00:29:36.420That is the nature of representative government.
00:29:39.600We want the states to ultimately be able to make their determinations about these particular moral and philosophical questions, the big issues that will affect them closely.
00:29:51.320But there will be a differing sort of patchwork of abortion laws.
00:29:56.300There has been more interstate travel.
00:29:59.660Now, I will say for individuals who have attempted in the state houses to restrict interstate travel through the particular legislation that they've passed, that, too, will not pass constitutional muster.
00:30:12.040The Supreme Court's been very clear on a 14th Amendment right to interstate travel as part of that ordered liberty that we've talked about.
00:30:20.400But we also want to make sure that we clarify ectopic pregnancies and miscarriages are absolutely not a part of this discussion.
00:30:29.120And any hysteria on the left to describe those as being tantamount to a failure to provide abortion services is specious.
00:30:38.020It actually misrepresents both the science, the reality of medicine and simple common sense.
00:30:44.020So these have not been sort of the apocalyptic scenarios that we were told they were going to be.
00:30:51.800They are differing from state to state, appropriately so.
00:30:55.780And I think what they're going to ultimately determine is how passionate are individuals about their particular rights, their perceived rights, or what they believe ought to be a moral duty on the part of someone else.
00:31:11.500Well, you have an opportunity to weigh in in November, and I think that's where these dialogues ought to be had.
00:31:18.920If it requires interstate travel, if it requires a different doctor in a different facility who doesn't, for example, have a conscience objection, these are the difficult decisions that are going to be made.
00:31:33.160And yes, it is a messy outcome, but it's the appropriate democratic response.
00:31:38.660I think that mention of messiness is interesting because I think oftentimes when people think of government, they think, you know, big bureaucratic systems that don't change.
00:31:48.200They don't really think of mess or working things out.
00:31:51.600And, you know, what do you mean when you say that messiness is actually a feature rather than a bug and that perhaps the messiness of getting the voters and states involved is actually a good thing?
00:32:02.820Well, I think the reason that it feels as though they have had no direct impact on the way that their lives are run and the way the government does things is because we're precisely in the crosshairs of an administrative state run by an agency that fully believes bigger government is better government.
00:32:24.820When, in fact, the framers and their brilliance have given us the 10th amendment, all powers not specifically relegated to the federal government are for the states to determine.
00:32:35.160And one of those chief among them is health, safety and welfare.
00:32:39.880The Supreme Court's also said explicitly that medicine is precisely under that welfare state police power, those powers that emanate from the 10th amendment.
00:32:50.640This is a Supreme Court that is what I would describe as a pro-federalism court.
00:32:55.800In other words, the power really ought to be the state's first and only if the Constitution permits the federal government to exercise it should we allow them to do so.
00:33:05.880So I feel as though this is a consequence of an administration that has grown the administrative state, that has grown the executive agencies, that has glutted them with more regulations than we've seen in the past three presidential administrations that can't stop spending money.
00:33:24.940And growing, I give you 180,000 new IRS agents who will be apparently doing what we don't yet specifically know.
00:33:35.560But there is a certain point at which we want the government to begin to minimize itself, to recognize its own limitations, to identify its constitutional import and say this ultimately is a question for the states to consider.
00:33:53.560And in that way, while it is a messy outcome, while Dobbs sends this question largely back to the citizens of the United States, and while there will be disparate responses, and we'll see everyone trying to take a heartbeat or better approach to a third trimester abortion approach, this is precisely the way it ought to go.
00:34:15.720It's what the Constitution anticipated, and it's what these Supreme Court justices have rightly recognized is an appropriate structure to our federalist system of government.
00:34:26.880So if you take this Dobbs decision from the national level discussion and boil it down to a more personal level, how is the Dobbs decision impacting women in the unborn?
00:34:37.920What sort of impacts have we seen so far from the court's ruling?
00:34:40.280Mississippi alone, and remember Mississippi, their gestational age act, was right in the crosshairs of the Supreme Court's opinion in Dobbs.
00:34:49.640We've already seen a saving of 180,000 unborn lives.
00:34:54.480This is an opportunity for crisis pregnancy centers and nonprofits, many of which who are religiously organized, really step up to the plate.
00:35:03.260There are more crisis pregnancy centers in the country, significantly more so than there are abortion clinics.
00:35:10.360This is really a chance to stand in the gap, to use what we know are the resources that are coming predominantly from religiously affiliated nonprofits.
00:35:21.140Most of the charitable work in the country, Pew Research tells us, is performed by religiously affiliated nonprofits.
00:35:28.280I give you the Fulton v. City of Philadelphia case and Catholic Social Services in Philadelphia, who desperately wanted to participate in the foster care program but was eliminated by the city of Philadelphia specifically because of their beliefs on traditional human sexuality and marriage.
00:35:46.760These are opportunities for groups like that to finally do what they have wanted to do for so long and to welcome these women with open arms, to encourage them to choose life.
00:35:58.840And that's ultimately what we're already seeing at the state level.
00:36:02.320Wow. And that's just in Mississippi since Dobbs.
00:36:05.400In just the last few months, over 180,000 children's lives have been spared.
00:36:26.460So, Sarah, as we conclude this conversation, what would you leave audiences with?
00:36:31.820Whether it's a woman with an unplanned pregnancy or people just interested in learning more about the pro-life movement, what would you leave with listeners?
00:36:39.340Well, I would say there are three primary points that I would leave people with.
00:36:43.940First of all, this is a victory for the democratic process.
00:36:47.920You have an opportunity in November to be active.
00:36:50.840Perhaps you've never been active before, and this will encourage you to go out and register to vote.
00:36:56.120Perhaps your state has a constitutional referendum that is currently under consideration.
00:37:00.100Perhaps there's a particular individual that represents your perspective that's on the ballot in November.
00:37:06.200That would be my encouragement would be to go out and vote because this is really a tremendous opportunity to be involved in the democratic process.
00:37:14.360And on an issue that has really engendered so much controversy and so much discussion for the past 49 years, no matter what the Roe Court said, it was never settled law.
00:37:27.180It wasn't settled law in 1992 in Planned Parenthood v. Casey.
00:37:31.280And the Supreme Court finally admitted it now in 2022.
00:37:35.640So I would say go out, participate in the democratic process.
00:37:39.240I would say also, number two, is that there are resources available to women who find themselves sort of stymied by this unwelcome or sort of unanticipated significant consequence in their lives.
00:37:58.000In fact, among them, I would encourage them to go to heritage.org, where we work with a number of organizations who are similarly advancing the cause of life.
00:38:56.080Thank you again, Sarah, for your incredible work and your insights into the Dobbs decision and the look ahead at what it means to build a culture of life.
00:39:06.420That was our conversation with Sarah Parshall Perry of the Heritage Foundation.
00:39:10.180Coming up next, we'll be talking to President of Alliance Defending Freedom, Kristen Wagner, with more analysis of Dobbs and the work that she and her organization did to help the state of Mississippi craft the legal argumentation to win this historic victory.
00:39:22.200And after that, our exclusive interview with Mississippi Attorney General Lynn Fitch, who was the strategist behind it all.
00:39:29.340But first, a word about creating lasting cultural change.
00:39:37.360Rose overturning was an historic victory, but abortion is still legal in many states.
00:39:43.500And the only way we'll truly see lasting cultural change is by changing the hearts and minds of pro-abortion people.
00:39:50.560Live Action is the most prominent pro-life online group in America, reaching millions of young men and women with the truth about the killing of pre-born children.
00:40:01.440No other organization reaches as many people online as Live Action.
00:40:05.780Its content has proven to transform opinions from pro-abortion to pro-life.
00:40:11.640Most pro-choice people don't know what abortion actually entails.
00:40:15.260When they see the brutality it inflicts on pre-born children, they rethink their stance.
00:40:21.720You can save the lives of countless children by making a donation today at liveaction.org slash dailywire.
01:00:36.180Alliance Defending Freedom in the United States is largely known for its work in the courtrooms.
01:00:40.840We also work in the legislatures, and we were able to help Mississippi draft this 15-week bill
01:00:47.020and to get it to the United States Supreme Court.
01:00:50.240But I don't think the solution at this point is in the law necessarily.
01:00:55.160Now, we're busier than we've ever been, to be candid, you know, defending, helping states to defend their pro-life laws.
01:01:02.160We're in over a dozen states already in litigation since Dobbs.
01:01:05.900Helping states, we're also helping states pass life-affirming laws.
01:01:09.780But this is now a cultural issue largely, and we need to be able to persuade the culture that pro-life people are there.
01:01:17.960We're there for those mothers that, again, the vast majority of mothers who are considering abortion are doing so not because they don't want to parent,
01:01:28.540And we shouldn't be making decisions out of fear.
01:01:31.940We have lots of policy options and private options that we can provide, and we should be voting pro-life as well and speaking up on it, as you've already referenced.
01:01:41.460I think we want to be a voice not only for the unborn, absolutely that's critical because it's their very life that is at issue, but a voice for women as well.
01:01:51.820So what sort of practical impacts have we seen since the Dobbs decision on a state-by-state level?
01:01:57.220Different states have approached the issue differently.
01:02:00.280I think your decision is driving at the resources as opposed to pro-life laws that would touch on abortion specifically.
01:02:07.300So when we're looking at resources, we've seen more and more pregnancy resources be able to expand the services that they're providing.
01:02:16.380It can be anything from pre-counseling to post-counseling to providing resources in diapers and tangible supplies to counseling to job training, you name it.
01:02:30.820There are a number of private solutions.
01:02:32.620There are over almost 3,000 pregnancy resource centers nationwide that are standing in the gap.
01:02:38.540One of the things that the states can do is to help direct funding to those resource centers that are offering the choice of life and that are then supporting that choice in very practical ways.
01:02:52.740Mississippi is actually a great example where they are helping to shift funds to provide funds to women who are in need.
01:03:00.760And there are a number of state programs that can be adjusted to provide additional health care, to help women in these instances, and federal solutions as well.
01:03:11.840We just need some courageous legislators and some courageous individuals to put pressure on those legislators to say, let's do this.
01:03:19.400Let's do it right and actually create a family-friendly state and family-friendly public policy.
01:03:25.140And what's the statistical breakdown currently between pro-life versus pro-abortion states?
01:03:31.360How many states either have pro-life legislation on the books or are in the process of passing those laws versus states that have begun pushing for even more extreme pro-abortion laws?
01:03:43.300We have about 25 states that have pro-life legislation on the books, and that is a variety of measures, I would say.
01:03:54.400Some are heartbeat pieces of legislation.
01:03:57.740Others have to do with eugenics, meaning that you can't abort a child because of the child's race or gender or because of a disability.
01:04:06.120So these protections vary in terms of their scope, but there are about half of the states that have them.
01:04:13.580And many of those states are involved in litigation right now because the abortion industry is fighting so hard to be able to continue to make a profit.
01:04:21.220We also are litigating against the Biden administration because they also are trying to take this right away from communities and states and allow the abortion industry to keep making a profit off of women.
01:04:34.000So I ask this a little tongue-in-cheek.
01:04:37.660Because many of us celebrated with the release of the Dobbs decision, but does that mean that the pro-life movement can rest on its laurels, or is there still work to be done?
01:04:47.420Alliance Defending Freedom has a concept called generational wins, and we pursue generational wins because we believe it's up to each generation to protect freedom.
01:04:58.140We have not accomplished the generational win of protecting life.
01:05:04.980But one major milestone in that beginning was reversing Roe versus Wade and Casey.
01:05:11.660It is the decision of a generation and should give us all hope and faith that nothing is impossible if we commit to it, if we show up, if we speak, and if we persist.
01:05:25.440That tenacious spirit should see us through not only in this issue as we are returning to the states, but on the other issues that we're facing across this nation right now.
01:05:35.500So in that vein of looking forward and preparing for the next battles or the next actions that we should be taking as people who are in the pro-life movement, what should your average pro-life American be thinking, doing, and preparing for?
01:05:49.420They should be ensuring that they are knowledgeable about these issues, that they learn about the humanity of the unborn, the science behind it, because the science is on our side.
01:06:01.780They should be volunteering or giving to pregnancy centers.
01:06:06.340They should be urging their state legislators and their federal members of Congress to ensure that funds are being directed to community health centers, not to the abortion industry, which requires also that we be knowledgeable about who we're voting for, that we vote pro-life.
01:06:23.980And I think more than anything else, I mean, all of these things are important, but what I think about in my own family is we have to have these conversations at our dinner tables with our own children so that we are helping to create a culture of life and that they are understanding the importance of these issues for purposes of protecting life and freedom for the next generation.
01:06:47.720Yeah. Building a culture of life really doesn't start and end with the current generation of adults. It really starts with how we're talking about it with our children and preparing them to think about and discuss these issues with their peers when the issue comes up. It's really powerful.
01:07:03.840Well, we need to realize other people are doing that from the other side. So we can't sit that out. We have to have those discussions with our kids.
01:07:12.200And in order to have those discussions and to help them understand, we have to understand it ourselves. And I'm hopeful about the next generation. I'm hopeful that we're at this stage that I think is something that two generations have worked for in all different areas of life.
01:07:28.340If you think about it, we are defending students on campuses, their right to be able to speak freely about life. We defend sidewalk counselors who have literally saved lives for two generations outside of abortion clinics. If you think about legislators like the nurse that I spoke about who passed the Mississippi law, we all have a role to play wherever we have been placed in protecting life.
01:07:51.740So how can people learn more? How can we learn more about the various battles that are beginning to appear post the Dobbs decision? And how can people become more involved?
01:08:00.400They can go to our website at adflegal.org. We have an entire litigation team and a legislative team that are focused on life issues. I have to say they've never been busier. We have been able to prevail in 14 Supreme Court cases in the last 11 years with Dobbs being one of them.
01:08:17.320And ultimately, I do need to say it was the Mississippi Attorney General's decision to go for the gold in terms of asking for Roe to be overturned. And that was a courageous decision, which again, I think underscores the role that we all play in wherever we've been placed.
01:08:33.340So that's a place you can get resources is at our website. You can certainly call us. And like I said, it's important to protect free speech so that we can speak about this right to life so that pregnancy resource centers can ensure their message gets out so that women know they have resources.
01:08:49.260It's important for sidewalk counselors. It's important for the church and just different religious organizations to be able to protect life.
01:08:57.980And so we all, again, have a role to play. And that's an exciting thing, I think, to be at this point in our history.
01:09:03.760It really is an incredibly exciting moment in our history. I'll be honest.
01:09:07.720I never really expected that I would get to experience the overturning of such a disastrous ruling as Roe v. Wade, something that I kind of in the back of my mind thought would probably exist my entire life.
01:09:17.620And I would just like to thank you, Kristen, for the incredible work that you and Alliance Defending Freedom did, both in the Dobbs case, working with Mississippi to craft a winning case, and for the work that you have undertaken over the last couple decades fighting for freedom across our country.
01:09:34.200So thank you so much. And thank you so much for this incredible conversation.
01:11:17.620And I feel like we've been very positive and served those across our state on so many different levels.
01:11:25.260Amazing. Thank you so much for serving the people of Mississippi.
01:11:28.700And I think there's a segue here because you've been able to, by serving the people of Mississippi, end up creating legal changes that now are in turn serving the people of the entire country.
01:11:40.280Can you tell us a little bit about the Dobbs decision and what your objectives were?
01:11:44.960Absolutely. This is an opportunity for Mississippi to lead on this case.
01:11:50.420We were selected, of course, by the United States Supreme Court.
01:11:57.260We were so excited because we knew this was a truly a journey for people across our state and across our country who had prayed for this, who had waited for the option to get in front of the United States Supreme Court.
01:12:11.020And so we embraced this. And as we prepared, again, an amazing team, writing the brief, preparing for the oral argument, and then making the argument.
01:12:22.360Again, we looked at it from a holistic perspective in the sense that we should talk about empowering women and promoting life, that this wasn't an either-or situation, that for 50 years it had been wrongly decided.
01:12:39.800And so when we got the question, then we turned around and put in our brief, the very hard question, overturn Roe v. Wade.
01:12:48.000We felt like that was important. And as we did that and we posted it up, certainly our friends, our partners, the coalitions, everyone came on board.
01:12:58.420And it, of course, proved to be very successful.
01:13:00.940I think in a world often prone to hyperbole, I can say with zero hyperbole that very successful might actually be the understatement of the decade in terms of the long-term impact and the protection of life that this decision leads to.
01:13:14.720Can you explain for audiences in more detail how you built this case?
01:13:19.280What were the arguments you and your team were making and how did that tie into overturning Roe v. Wade?
01:13:24.600Right. This was an appellate decision that we moved forward that involved a 15-week abortion law here in the state of Mississippi.
01:13:34.780That case was already here and we opted to petition for a surge in the United States Supreme Court.
01:13:44.680We embraced on how we would write this on all the levels, including asking the hard question to overturn Roe v. Wade.
01:13:52.680We felt like it was an important time to bring this forward.
01:13:57.300And as we got there, certainly the justices, we made the argument that this was a rule of law case that should always be decided by the people.
01:14:07.760It was important to look at it from the perspective that Roe was never a good decision, legally or morally.
01:14:16.620It had certainly stunted the political debate on the vital issue of life.
01:14:21.300And quite frankly, on how we serve women when they're most vulnerable.
01:14:34.660Roe had really locked up abortion policymaking behind the bench.
01:14:37.960So now the people of each state should have the opportunity to make decisions about abortion policies that they want to pass.
01:14:47.400Certainly it will look different in every state as we've seen.
01:14:50.820Some states have already essentially codified Roe v. Wade.
01:14:54.240Some states like mine in Mississippi, we have very strong laws to protect life that have finally taken effect.
01:15:02.000And so we're now enacting new laws to support women and their children.
01:15:07.760You just mentioned that Roe was not just a bad moral decision, but just plain bad lawmaking as well, which both of our previous interviewees also touched upon.
01:15:17.800Can you unpack that and explain it in more detail?
01:15:23.780So for 50 years, it had been determined the other way and was based on the Constitution, when in fact there was nothing in the Constitution, in the text, that would provide that this was a true constitutional right.
01:15:39.680So if you look all the way through, even back to Justice Ginsburg, she thought so too.
01:16:22.440Well, it did great damage to the court.
01:16:25.000It stunted a debate that the American people needed to have.
01:16:29.080And so the Dobbs decision, the Mississippi Dobbs case, set things right.
01:16:33.280So if the court that decided Roe wasn't using history or good legal reasoning to arrive at their decision, how did they arrive at a decision?
01:16:41.480Well, at that point, you can see it became fairly political.
01:16:44.900They had a stretch on how they tied it in what they thought was a constitutional connection, when, in fact, as we've just discussed, it's not.
01:16:56.680So this, again, allowed us to lay it out completely, to talk about the arguments of a rule of law and how a rule of law question should be returned to the people.
01:17:08.320Because the people should always be able to elect their legislators, their governors, and then if you don't like the policy and the decisions they're making,
01:17:16.740then you can certainly choose to have them replaced by someone else who supports your policies and your decision making.
01:17:24.860What the original case did, it created this right back in 1973 in the Roe case that was truly never supported by the Constitution.
01:17:34.320Right. And I'd like to go back to a slogan you just brought up a moment ago.
01:17:38.540Your slogan has been, empower women and promote life.
01:17:42.700And I love that because so many people in the pro-choice movement often claim that Dobbs strips women of their rights.
01:17:48.600Can you talk about your slogan and why it directly contends with the pro-abortion lobby?
01:18:52.580It wasn't an either or anymore that you could embrace empowering women and promoting life and look at the great benefits to have both of those opportunities.
01:19:03.680And if I understand correctly, this isn't just some abstract concept that you pulled out of a textbook or out of thin air, but one that you've personally lived, right?
01:20:03.480We have to really be focused on what women need.
01:20:07.960You know, we have to be engaged in how we move forward.
01:20:12.520How do we help these women that are most vulnerable?
01:20:14.680Certainly we are supportive of our pregnancy centers.
01:20:18.160We need to be assisting them, encouraging people to give of their time, their treasures, their talent.
01:20:24.100But we need to be talking about some other hard issues that are important to women and their children.
01:20:29.120Because now we're in a post-Rowe world.
01:20:31.080So we need to talk about how we do things a little differently in the sense in how do we support these women and their children.
01:20:39.300I think there's some serious conversations and some action items that need to be held on child care.
01:20:45.280Making child care, quality child care, affordable and available for women.
01:20:51.520We need to look at workplace flexibility options.
01:20:55.260Again, we need to give women options as they raise their children and as they pursue their professional dreams.
01:21:01.840We need to have the fathers be equally responsible financially for their children.
01:21:08.980Because the women for too long have borne the burden of economic and financial hardship.
01:21:15.460And again, if we're going to empower these women, help them, they certainly shouldn't be penalized and the fathers should be invested.
01:21:22.140And there's a really good part if the fathers are invested with the child support, then odds are they're going to be invested in their child's life.
01:21:30.640We certainly need to be looking at how we streamline adoption and foster care.
01:21:35.580Because it's important to get these children into loving, thriving families as quickly as possible.
01:21:42.880That should always be our goal, again, as we look to empower women and to help their children along the way.
01:21:49.140You know, living on the margins, we should always be looking to uplift the entire family, the whole family, which includes the mothers and the children.
01:21:59.420Well, you've just laid out a list of important things that sound like the next steps now that this massive victory has been achieved in the courts.
01:22:06.040Now that it levels the playing field and returns us to a place where the people can decide what they believe is moral and can make their laws on a state-by-state basis.
01:22:15.260What are the next steps for a pro-life listener who wants to learn the next steps for how to support the movement practically?
01:22:20.960Well, there are so many good opportunities for people to serve.
01:22:25.020You know, we have to channel our energy, just like we did for the last 50 years, for overturning Roe v. Wade and look at ways we can certainly support these women and their children.
01:22:36.680Certainly, I would say assist your local pregnancy centers.
01:22:40.460Work with your churches to support women in your community who need help and their children.
01:22:45.380This can be anything from making donations for diapers and car seats or money to help a young mother with tutoring, help her to get her GED.
01:22:55.220Because we certainly want to see mothers upskilled to their best level.
01:23:00.980Again, they deserve that and we should be ready to help them.
01:23:05.040Second, I think we have to advocate for the laws that will support these women and their children.
01:23:09.080As we've talked about, you know, the child care, we've talked about flexible options, child support, adoption, and foster care system.
01:23:18.060Those are some hard topics, but we're ready.
01:23:45.160So let's take that same compassion and love and energy and make it a difference as we change the laws to truly empower women and their children.
01:23:54.440And finally, as you're well aware, our nation is divided.
01:23:57.800A lot of people celebrate the Dobbs decision, a lot of people oppose it, but I think there are a lot of people in the middle who just don't quite know what to make of it.
01:24:06.860What do you say to that woman who's facing an unplanned pregnancy, perhaps is scared and perhaps doesn't know where to go or where to turn?
01:24:18.760The common theme should always be, we're here for you.
01:24:21.140Our goal, our mission is to continue to serve these women and their children.
01:24:28.200And so certainly we have respect for all those making those decisions, but knowing that we're here for them, that we believe in them, we're here to uplift them, to serve them.
01:24:40.160And as I said earlier, you know, the way we serve the women and children now has got to be changed.
01:24:46.580We've got to look at these avenues on how we support them on every step of their journey.
01:24:51.680And so that involves changing hearts and minds and understanding that these are new opportunities for us to follow.
01:25:00.300And we certainly all believe in the dignity of women and children in all life.
01:25:05.740Yeah, like we've talked about both on this show before and in the documentary we released earlier this year, a massive victory was achieved for life in the Dobbs decision.
01:25:16.060But in a deeper, more fundamental way, the work for most of us is just beginning.
01:25:22.380The work to support women, their families, their children, both born and unborn, not just from the highest court in the land, but throughout all levels of our society and in our communities.
01:25:37.080So thank you so much, Attorney General Fitch.
01:25:39.340Thank you for your bravery in taking a stand on this issue.
01:25:42.580Thank you for the fight that you brought to the courts and for the work that you've done to protect life.
01:25:47.040And we really appreciate your time in this conversation today.
01:26:30.140One of the most ground-shaking, life-protecting decisions in our country's history was just recently handed down by the court.
01:26:36.580But on the other hand, our work in the pro-life movement is just now beginning.
01:26:41.020Because the truth is that now, more than ever, is the time that we, the average pro-life Americans, are most needed.
01:26:49.160The bravery, legal expertise, and strategy of people like Attorney General Fitch, Kristen Wagner, and the countless individuals we've interviewed for this series.
01:26:59.440Their expertise has brought us to the point where now we, the people, can advocate for and protect life in our communities, our churches, and in our states.