Interviews, calls — constant since about 10:00 this morning. It’s been all day long. Three different BBC’s called. I asked ‘em, I said, don’t you guys work together? They said, well, we do, but there’s bunches of us. So, I did three different Skype interviews with BBC — all different people. It’s about this bill, so —

Yeah, it’s been an unusual day. I hope tomorrow — well, no, tomorrow is going to be some more of this, I understand.

We do. It sounds like you’re having a bit of a day there.

Well, I know, we know each other now.

Good, good, good. Just to start with, should I address you as Mr. Johnston, or should I address you as Eric? What do you prefer?

So, I’m going to play you part of this interview I did yesterday with this lawyer from Alabama.

Today, Alabama has adopted a law that would criminalize nearly all abortions and make the penalty for providing one up to 99 years in prison. Why the man who wrote the law knew it was unconstitutional and did it anyway.

Which reaffirmed Roe. And then we changed our whole approach to how we would deal with the issue.

Legislation. And what we did in 1990 and ‘91 is we were bringing legislation in the Alabama legislature which would have addressed Roe v. Wade. Those bills did not pass, but it was actually in 1992 that Planned Parenthood v. Casey was decided.

The way the system works in Alabama — and all states are somewhat different, but probably similar in a lot of ways — there is a bill writing service for the legislature. In effect, they serve as the legislature’s lawyer. Legislative Reference Service, it was called then, was very open to taking —

And what do you mean when you say work with the legislature?

Well, in 1990 was when I began working with the legislature and have worked with the legislature every year after that.

So, it sounds like once this does become a hot issue after the 1980s, conservatives like Johnston see a path to potentially overturning Roe v. Wade with some kind of challenge.

So, what many constitutional scholars will tell you is that this is a case that rests on slightly legal shaky ground because the way the court ruled in Roe, they based it on this idea that there was a constitutional right to privacy. That it wasn’t about equality, it wasn’t about equal rights, it was really about privacy. But the problem with that was that there wasn’t a direct and explicit right spelled out in the Constitution for privacy. Essentially, they were interpreting based on a reading of the Constitution, and that left an opening for conservatives who argued that, look, this doesn’t really hold water legally.

What does he mean here when he talks about the constitutional deficiencies of Roe v. Wade?

After several years of practice, when I became more accustomed to what I was doing, I focused on the abortion issue, and I realized that was a pretty significant case. I became interested in it at that time, and it was partially because I believe that life — God ordained life, and life begins in the womb. Scripture talks about that. But, as a lawyer, I was reading cases and I was seeing the constitutional deficiencies of Roe and realizing that it was a mistake.

Right. And that timeline lines up with what Johnston told us.

So, it really wasn’t in the beginning. You had various Catholic groups that were very much opposed to abortion, but that was not mainstream. You didn’t hear any really organized opposition to this big change. The opposition grew slowly over time, and it started, really, with a group of conservative thinkers who realized that abortion was the way that they could bring evangelicals into the electorate. So, they sold this vision to Ronald Reagan, he believed it, he ran with it. And by the 1980s, you had abortion as this big political issue.

Johnston says he had just started practicing law when Roe was decided. In fact, he was admitted to the bar the exact same year — 1973 — that the case was ruled. So, why would that have not been a big deal to a conservative lawyer in Alabama?

Abortion was not — Roe v. Wade was decided in ‘73, and I was just begun practicing law. And, initially, there was not a lot of impact by the Roe decision. It was not really any thing that was talked about very much.

Right, which is why we wanted to talk to him. But I wanted to get your take on this conversation we had, given how closely you’ve been covering what’s going on at the state level across the United States when it comes to abortion rights.

Yes. He is the lawyer at the center of the Alabama abortion bill. He’s right in the middle of it. It’s a really big week for him.

So, Sabrina, yesterday I talked to this lawyer in Alabama, Eric Johnston. I’m sure by this point you know he is.

sabrina tavernise

So, this was a really big case for someone like Johnston. Because what happened was everybody expected that this would mean the end of Roe. That was the expectation going into Casey, but the court really surprised everyone. The court said, no, Roe is firm — abortion is legal in the United States. But it brought in a caveat — states can regulate up to viability — generally around 24 weeks, so, until a baby is viable outside the womb — as long as they do not place an undue burden on the woman in doing so. So, what happened was this opens the door for state legislatures around the country to basically become legally very inventive in how to regulate this thing. They want to regulate it.

michael barbaro

And tell me what you mean by inventive. What can they suddenly regulate?

sabrina tavernise

So, for example, one popular method was to say, O.K., you’re an abortion clinic, but we think probably you’re unsafe as an abortion clinic, so you need to have very special doorways, hallways, you need to be built like a hospital. You need to have a doctor who’s on call at all time who has admitting privileges in a local hospital. And if you don’t have those things, then you can’t keep operating as a clinic in our state. And that started to really change the picture for abortion access in the United States.

michael barbaro

Because it’s going to make it harder to run an abortion clinic.

sabrina tavernise

That’s right. And that started in 1992 after Casey.

michael barbaro

And what was your change in approach?

eric johnston

Well, we would go from writing bills that would seek to reverse Roe to writing bills that would regulate the abortion procedure process to reduce the number of abortions.

michael barbaro

So, during this time, you give up on the idea that you can overturn Roe v. Wade — and I just don’t understand why. What made you decide that that wasn’t something worth trying to do?

eric johnston

Well, after Casey was decided, knowing the makeup of the Supreme Court and reading the Casey opinion, it was obvious to lawyers who were involved at that time that there was not a foreseeable case or opportunity for Roe to be reversed. It wouldn’t do any good just to go and pass laws that would say, abortion is illegal, because the U.S. Supreme Court would strike those laws down. It would be a waste of time.

sabrina tavernise

This begins the era of, let’s chip away — just little bits, little bits. We can take little bites out of it. So, you think viability is 24 weeks? What about 20? We’re going to regulate it at 20 and see how that goes.

eric johnston

That did not change until last year.

michael barbaro

And what happened last year that made that change?

eric johnston

Well, there were the prospects of new justices on the U.S. Supreme Court — Gorsuch and then Kavanaugh. There was a Justice Department who was more favorable to the sanctity of life. Now, it looks like this may be the time to do it. And, of course, I have no crystal ball. I don’t know that it’s the time to do it. But if you look around, I’m not the only one thinking this — or the Alabama Pro-life Coalition is not the only one.

sabrina tavernise

When Kavanaugh was confirmed, there was one thing in my mind, which was, this is going to be a huge fight.

michael barbaro

What do you mean?

sabrina tavernise

You know, this was the first time a serious challenge to Roe would be possible.

michael barbaro

Because of the math.

sabrina tavernise