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--:-- Noel King: It's Today Explained. I'm Noel King. A few weeks ago, I went to Indiana, and I met a lawyer who has been trying to overturn Roe v. Wade for most of his adult life.
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--:-- Noel King: I don't mean that idly, like he doesn't appreciate Roe and he's gone to certain protests or voted for certain people. I mean it literally. This man graduated from law school with Roe fresh in his mind, and he came up with a plan, and he hit the stacks.
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--:-- Noel King: I would go to either the law school library or the Supreme Court library at the state capitol. And so I had to go find the books about the Supreme Court, the history of the Supreme Court, and particularly Overturning Precedent. Overturning Precedent. Not easy.
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--:-- Noel King: But on today's show, we have the story of how his plan worked.
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--:-- Noel King: Business and with AI agents working together autonomously, anyone in any department can focus on the work that matters most. I've never met an AI agent. Learn how ServiceNow puts AI to work for people at ServiceNow.com.
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--:-- Noel King: James Bopp runs a law firm in his hometown, Terre Haute, Indiana. It's a corner building. It's kind of easy to miss if you're keeping your head down because the windchill is about minus 70.
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--:-- Noel King: Wait a minute. Noel, we went the wrong way. I think. Yeah. That's ninth. We were there in March because we'd heard from a very well-informed law professor that Mr. Bopp is perhaps the main reason that Roe versus Wade was so imperiled.
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--:-- Noel King: Is it true that you are the smartest man in Terre Haute?
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--:-- Jim Bopp: No. That's the rumor. No. Are you being modest? No.
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--:-- Noel King: Decades ago, Jim Bopp seized on a novel legal strategy with one goal, undermine that 1973 decision. And, well, here we are in 2022.
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--:-- Noel King: Do you remember when you became aware of what abortion was, what it meant, what it involved?
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--:-- Jim Bopp: Yes, early on. My dad was a doctor, and he talked often to us about you do no harm, and of course, abortion kills the unborn baby.
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--:-- Noel King: The other thing that was really kind of just accidental was in my room, there was bookshelves above my head. At the very top shelf were all his medical books, and I was interested in becoming a doctor, like my dad and uncle and grandfather.
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--:-- Jim Bopp: But one of the books was the embryology textbook, and it fascinated me. I was drawn to it. The embryology textbook. Exactly. The embryo and how it was developing from an embryo to a zygote.
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--:-- Noel King: It's actually zygote to embryo. And the stages of development and what the characteristics were.
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--:-- Jim Bopp: I mean, it was kind of a thick book, so it had a lot of stuff in it. But the thing that impressed me that related to the abortion issue, is there was no question that the unborn was a human life from conception.
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--:-- Noel King: There was no debate about that. That was just simply a biological reality that doctors needed to know and would deal with, right?
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--:-- Jim Bopp: And when you couple that with a physician do no harm, the abortion issue was taking of an individual living human being. And that's what's at stake. And that's what makes it wrong, except in rare circumstances.
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--:-- Noel King: Jim is a conservative. He has always been conservative, even back in the 60s, during which time he did not swing.
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--:-- Noel King: Did you ever go through a rebellious phase as a teenager?
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--:-- Jim Bopp: Well, yes, but it isn't the normal one. My rebellion was, I was a conservative and a Republican whose teachers were liberal.
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--:-- Jim Bopp: My rebellion was organizing my high school for Barry Goldwater in 1964.
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--:-- Noel King: Barry Goldwater is calling for courage and integrity in meeting problems. He's calling for an end to do-nothing policies, for progress based on the dynamic principles of the republic.
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--:-- Jim Bopp: He's calling for a rebirth of individual freedom. I would remind you that extremism in the defense of liberty is no vice.
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--:-- Noel King: We created a group in my high school. The Republicans believed in Goldwater and wanted to do things to advance his candidacy.
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--:-- Jim Bopp: When Barry Goldwater ran, he was running against the moderate-slash-liberal establishment that controlled and ran the Republican Party.
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--:-- Noel King: I mean, we were rebels. I mean, we were serious rebels.
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--:-- Jim Bopp: Goldwater had to overcome incredible odds to get the Republican nomination.
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--:-- Noel King: I'm facing that electoral vote board, so I can tell you by moving those electoral votes in Wisconsin to the one column, according to CBS vote profile analysis, Lyndon Baines Johnson has been elected president of the United States.
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--:-- Jim Bopp: His electoral vote has gone over the 270 figure by a single vote, 271. And the landslide has carried him in for his first term in office on his own right by his own election
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--:-- Noel King: And Jim went away to college to become a doctor but he did not excel at science
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--:-- Jim Bopp: So he went to law school instead.
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--:-- Jim Bopp: I was at the University of Florida in Gainesville. And on January 22nd, when the opinion was handed down, I was driving from the law school to my apartment.
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--:-- Noel King: This is as distinct a memory as I have in my life.
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--:-- Jim Bopp: It was noon, and on comes the noon news report, and it announced what happened with Roe v. Wade, and I was just shocked and appalled and heartbroken.
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--:-- Noel King: Specifically, the court today overturned laws in Texas and Georgia and ruled the government has no right to enter into a decision which should be made by the mother and her doctor.
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--:-- Jim Bopp: During the second three months of pregnancy, it ruled a state may... It's just like yesterday.
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--:-- Noel King: And, yeah, because I thought this was really important. I mean, I just don't think there's anything more important than government's responsibility to protect life.
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--:-- Noel King: After graduation, he went to work for the Indiana Attorney General. Then he opened an office in downtown Indianapolis, where he says he went broke for a few years.
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--:-- Noel King: And then he got involved in National Right to Life, where there was this battle underway among people who were anti-abortion.
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--:-- Jim Bopp: The battle was between incrementalism and absolutism.
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--:-- Jim Bopp: Absolutism was we would be morally complicit in Roe v. Wade if we accepted it as law. And therefore, the only thing that we can ever propose or support is pre-Roe v. Wade prohibitions on abortion, period.
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--:-- Noel King: The incrementalists understood, I mean, you got to learn what fights to fight and what hills to die on, right?
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--:-- Jim Bopp: No one has ever confused me with the Don Quixote, all right?
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--:-- Noel King: So the reality is the pronouncements of the Supreme Court are the law of the land and will be followed by all judges.
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--:-- Jim Bopp: And so you have to accept that and work within it. That is not a hill to fight on. It's foolish.
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--:-- Noel King: They wanted to fight on that hill. And what that would have meant was, if the only laws we would ever support are complete prohibitions on abortion, few of those would pass, if any.
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--:-- Jim Bopp: None of them would ever survive the most modest court challenge.
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--:-- Noel King: And what was threatened by that approach was that the abortion issue would be taken off the public agenda.
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--:-- Jim Bopp: Okay? So there would be no prospect of anything about Roe v. Wade ever happening.
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--:-- Noel King: So it's sort of like Roe v. Wade. That decision exists. But we're not going to wave a magician's wand and make it disappear.
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--:-- Jim Bopp: So we have to, like, drill little holes in it where we can. Right.
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--:-- Noel King: And that is, of course, the traditional strategy that has been employed by people who wanted to overturn precedent, is that they understood that to overturn a precedent, it requires a series of cases where the precedent is undermined.
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--:-- Jim Bopp: So the big thing in your mind is to get these individual cases to the Supreme Court.
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--:-- Noel King: Yes, because... You're smiling. Exactly.
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--:-- Jim Bopp: If they don't take up a case, they can't be asked to or consider overturning the precedent.
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--:-- Noel King: And if they uphold the law without overturning the precedent, we now have a law that is likely to save lives.
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--:-- Noel King: Where did you get the idea for this chipping away at Roe strategy?
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--:-- Jim Bopp: The NACP.
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--:-- Noel King: Plessy versus Ferguson. Exactly.
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--:-- Jim Bopp: Presley versus Ferguson leading to Brown versus Board of Education.
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--:-- Noel King: Explain the whole thing.
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--:-- Jim Bopp: Oh, my goodness. I mean, when I got involved with National Right to Life, one of my first tasks was to develop a strategy to overturn Roe v. Wade.
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--:-- Noel King: I mean, and to implement that strategy.
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--:-- Jim Bopp: And so I read all about the NACP strategy because it has been well covered.
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--:-- Noel King: It was very conscious.
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--:-- Jim Bopp: I mean, Thurgood Marshall put it together and implemented it.
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--:-- Noel King: The president should have shortly after the decisions, or at least by now, have gotten on a television network or radio and spoken as the chief executive of this government to the good people of the South, urging them to support the decision of the Supreme Court as the law of the land, whether they believed in it or not.
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--:-- Jim Bopp: All the elements of what you could see in prior cases, other instances where precedent had been overturned, all the elements that the NAACP recognized had occurred in all these cases and then implemented successfully were all there.
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--:-- Noel King: They're identifying individual cases, the NAACP. They're saying if we get this in front of the Supreme Court, the Supreme Court could make a decision on this particular case that would overturn Plessy v. Ferguson.
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--:-- Jim Bopp: Right. And they keep doing that. And they keep doing that, but they do it even in a more sophisticated way.
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--:-- Jim Bopp: They were dealing with Plessy v. Ferguson, and the doctrine was separate but equal.
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--:-- Noel King: And they said, well, we've got to undermine, remember the words undermine, because what you need to do is undermine the precedent by getting the courts to question it, explain it or change the doctrine, distinguish it until they're finally ready to jettison it by overruling it.
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--:-- Jim Bopp: So they started with a medical school. Quick correction, it was a law school.
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--:-- Noel King: The rest of this story is accurate.
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--:-- Jim Bopp: And the reality of a separate school for Blacks that would be equal to the white is preposterous. Okay. And of course, it didn't exist in the real world.
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--:-- Noel King: And of course, said no, the black school is not equal right.
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--:-- Jim Bopp: And they struck it down.
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--:-- Noel King: And then they just kept working their way down, okay, until they got to the Topeka, Kansas Elementary School.
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--:-- Jim Bopp: Ruling in five cases in which five Negro children sought the right to go to the same schools as white children, the court said separate educational facilities are inherently unequal.
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--:-- Noel King: So this was now the incrementalist strategy. Bring abortion case after abortion case before the Supreme Court that the court has to rule on and try to undermine the precedent of Roe.
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--:-- Jim Bopp: I set out to advance the conservative cause to make it a majority, not to live in the minority.
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--:-- Noel King: What was a fringe idea, which was conservative ideas, you know, has become a mainstream. That's huge.
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--:-- Noel King: Support for today's show comes from Adio. What is Adio?
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--:-- Jim Bopp: Adio is an AI-native customer relationship management system built specifically for the next era of companies.
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--:-- Noel King: They say it's extremely powerful, adapts to your unique data structures and scales with any business model.
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--:-- Jim Bopp: According to Adio, Adio takes less than a minute to set up, and within seconds you will have your email and calendars synced.
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--:-- Noel King: You'll see all your relationships in a fully-fledged platform, they say, all enriched with that actionable data.
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--:-- Jim Bopp: And they say you can build AI-powered automations and use its research agent to tackle some of your most complex processes to seize so that you can focus on what matters, building your company.
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--:-- Noel King: You can join industry leaders such as Flatfile, Replicate, Modal, and so much more.
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--:-- Noel King: That's A-T-T-I-O dot com slash todayexplained.
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--:-- Noel King: Thank you.
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--:-- Noel King: You can manage your wealth your way at Schwab. Visit schwab.com to learn more.
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--:-- Noel King: Back with Today Explained.
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--:-- Noel King: Okay, so Jim Bopp started applying the incrementalist strategy.
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--:-- Jim Bopp: He brought case after case after case. He assisted with lawsuits in Ohio, in Missouri, in Massachusetts.
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--:-- Noel King: The point was to undermine Roe bit by bit until the justices were ready to overturn it.
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--:-- Noel King: And then in 1992 came a big one. The case was called Planned Parenthood v. Casey.
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--:-- Noel King: The Supreme Court heard arguments on the constitutionality of Pennsylvania's abortion law today.
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--:-- Noel King: The law is considered one of the strictest in the nation. It requires a married woman to notify her husband.
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--:-- Jim Bopp: This could be the culmination of our strategy. We may have the votes for them to actually overturn it.
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--:-- Noel King: The case is considered the most direct challenge to date of the Supreme Court's 1973 Roe v. Wade decision, which legalized abortion.
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--:-- Noel King: The state of Pennsylvania had tried to add a few restrictions to abortion, not to make it illegal per se, but to make it harder in a few ways, to chip away at it.
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--:-- Noel King: Now, this was an incrementalist's dream situation, not to mention eight out of the nine justices on the court had been appointed by Republicans.
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--:-- Noel King: The restrictions at issue were as follows. Parental notice. If a kid under 18 wants to get an abortion, the doctor has to inform the parents.
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--:-- Noel King: Inform consent. Waiting period. If you want an abortion, you have to sit through informational presentations and then wait a certain amount of time before the procedure.
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--:-- Noel King: And spousal notice. If a married woman wants to get an abortion, she has to inform her spouse.
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--:-- Noel King: And then what the hay happened?
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--:-- Jim Bopp: Our obligation is to define the liberty of all, not to mandate our own moral code.
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--:-- Noel King: I was in the court. I'm sitting where the lawyers sit, right in front of the justices.
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--:-- Jim Bopp: You're wearing a tie, presumably, suit and tie.
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--:-- Noel King: Well, yeah. It's the Supreme Court. Mm-hmm. Flax socks as opposed to by normal white socks.
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--:-- Noel King: After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court and the rule of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability.
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--:-- Noel King: Instead of winning, we lost 5-4.
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--:-- Jim Bopp: I was very disappointed, tragically disappointed.
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--:-- Noel King: And the three justices that we didn't get, that we had hoped to get, we didn't get for different reasons, right?
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--:-- Jim Bopp: But they joined together in one opinion where they did two things. They reaffirmed that the right to abortion is fundamental, but they also changed Roe v. Wade. to make reasonable regulations on abortion much easier to uphold.
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--:-- Noel King: It was definitely not a total loss.
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--:-- Jim Bopp: As I'm walking out, I'm immediately thinking, okay, the court has given us obviously a new analysis that will allow for more extensive regulation on abortion, and that's what we've got to turn our mind to.
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--:-- Noel King: I don't want to put thoughts in your head, but had I been you, I think the thing going through my head at that moment would have been this is not a total loss.
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--:-- Jim Bopp: And also I would really like to change the composition of that court.
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--:-- Noel King: We always knew that the Constitution of the court is a critical element in this. I mean, let's be real here.
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--:-- Jim Bopp: I was born at night, but not last night. Okay? And so I understand that justices are human. I understand that they change over time.
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--:-- Noel King: They are affected by their life experiences. experiences that are affected by their context in which they're living and making decisions.
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--:-- Jim Bopp: I'm an optimistic person. I've always understood politics is a process, not an event, and that we were in it for the long haul and that we believed we had a strategy that could ultimately succeed.
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--:-- Noel King: But only if they had sympathetic judges.
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--:-- Noel King: There were four Reagan appointees on the court in that Casey decision, and they'd let Roe stand.
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--:-- Noel King: So Republican presidents would have to nominate a specific kind of judge.
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--:-- Noel King: Leonard Leo is executive vice president of the Federalist Society, which advances the cause of limited constitutional government.
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--:-- Noel King: The Federalist Society started on college campuses. It was kind of a club for very conservative young people.
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--:-- Noel King: That group created a pipeline that went from law schools to clerkships to the federal bench.
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--:-- Noel King: He organized conservative support for Clarence Thomas and John Roberts and Sam Alito.
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--:-- Noel King: But his role increased dramatically when candidate Trump asked him to draw up a list of potential nominees.
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--:-- Noel King: Now, it's worth noting here, Jim Bopp insists the Federalist Society is not that big a deal.
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--:-- Noel King: I really was under the impression that when the Federalist Society, quote unquote, endorsed a judge, that judge was understood to be somebody who would vote to overturn Roe versus Wade.
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--:-- Leonard Leo: I've been in the leadership of the Federalist Society. I've been inside of this. And that's not the case.
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--:-- Leonard Leo: We do not ask those questions of a prospective nominee.
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--:-- Leonard Leo: You know, like, even the question, what do you think about Roe v. Wade? We would never ask the question, would you vote to overturn it? That would be totally unethical.
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--:-- Leonard Leo: It would be wrong for us to ask, wrong for the judge to answer.
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--:-- Noel King: Any lawyer that would tell you that judges don't matter, then you have a fool for a lawyer.
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--:-- Noel King: And you ought to change lawyers, okay? Because judges do matter, because they're human beings.
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--:-- Leonard Leo: And so there's no question that the fight over judges is understandable, particularly when you have judges like liberal ones that vote based upon their policy views not what the constitution provides in my opinion now okay so judges matter i want somebody that will faithfully interpret the constitution based upon its meaning at the time it was adopted liberals want somebody that will reinterpret that language based on you know society's current needs, and that's a problem.
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--:-- Noel King: After the Supreme Court draft opinion on Roe leaked, I called Jim Bopp.
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--:-- Noel King: This is Jim Bopp. Mr. Bopp, hello, can you hear me?
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--:-- Noel King: He's been working a case in Richmond.
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--:-- Noel King: Oh, yeah, I'm taking back, getting ready to have my first beer here in a little bit. It's been decades.
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--:-- Noel King: Do you feel vindicated today?
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--:-- Jim Bopp: Not yet. Not until we get a majority opinion overturning Roe v. Wade.
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--:-- Noel King: I mean, you know, we got so close in 1992.
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--:-- Noel King: Do you take credit for where we are today?
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--:-- Jim Bopp: And I don't mean today in the broad sense. I mean today, right now, this afternoon.
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--:-- Jim Bopp: The only thing I would take credit of is being persistent.
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--:-- Noel King: And uh and my motto always has been you don't lose until you give up everything else is just a temporary setback or maybe a temporary advance whatever uh and uh you you don't lose until you give up it's the way it is and uh so i've never given up and i'm not going to give up and you know I can say I've done that because I've been persistent and maybe, and I just hope one of these days, you know, bears the ultimate truth.
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--:-- Noel King: Thank you.
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--:-- Noel King: Shout out law professor Mary Ziegler. She was in fact the person who brought Mr. Bopp to our attention.
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--:-- Noel King: She's the author of a terrific book called Dollars for Life, the anti-abortion movement and the fall of the Republican establishment.
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--:-- Noel King: I read it on the plane on the way to Indiana.
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--:-- Noel King: And hey, here's a thought. It is a Cray news cycle, and we want to know what you would like explained, whether it's about Roe versus Wade or about abortion more broadly or about where this country is headed on this issue.
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--:-- Noel King: We have a hotline. Sean monitors it. If you want to leave us a message, please do.
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--:-- Noel King: Call us at 202-688-5944.
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--:-- Noel King: I'm Noelle King, and this is Today Explained.
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