Samuelson is the president of Americans United for Life, a non-profit law firm that writes, lobbies for and defends in the courts model legislation for states like Mississippi that "incrementally" restrict abortion within the boundaries of the Supreme Court's landmark Casey decision. He admits that Americans are uncomfortable with the idea of "banning abortion outright," but believes that once they've considered lesser restrictions -- parental notice laws, abortion clinic regulations, informed consent requirements, and rights-of-conscience protection for medical professionals -- Americans will come to the conclusion that "maybe abortion isn't a wholly good thing." "What we do with incremental laws is we invite people to think about … the negative impact of abortion on women," says Samuelson. "[W]e think that's the best way to continue a national conversation and move forward … towards a consensus that says: 'Abortion is not a necessary thing. Abortion is something we can live without.'" This is the edited transcript of an interview conducted on Sept. 1, 2005.
So let's just start with what [Americans United for Life's] mission is.
Americans United for Life is a pro-life group. We believe in the dignity of every human life, and we work to protect it. We do that as lawyers through promoting life-affirming laws in state legislatures, state capitols, and defending them in court. … We watch what's happening in all of the states. We look for good ideas. We help draft model legislation that legislatures can implement. We then consult with individual legislators, with allied groups -- often more allied groups sometimes than legislators themselves, but with both. We help them customize that legislation to the political realities they face. If they want to modify it, amend it as they introduce it, they need advice on the constitutional aspects of it. They often need testimony before committees, and so we provide testimony or we find experts for them.
We help produce or sponsor, either write [it] ourselves or sponsor doctors and others to produce the academic literature that supports these arguments and these laws. Once they're passed and signed into law, they're almost always challenged in court, or frequently they are, and so we'll work sometimes as lead counsel defending them. Much more often we advise the lead counsel or we advise the attorney general in defending the laws in court.
So when you look across the country, what do you see in terms of [abortion legislation]?
I think overall what we see is just many, many legislators who have found that by promoting life-affirming laws they get re-elected, or they get elected in the first place. And I think that's true in almost every state. Certainly there are some states that are much more Democratic, much more pro-abortion, where that is not as true. [But] even in California this fall, there's a parental notice initiative where the public is very supportive of it. The public wants the parents involved when a minor girl is facing an abortion. The politicians in Sacramento have not wanted that, and so it's going through a public initiative instead.
When you go over to New York, one of the very large states, much more liberal and Democratic, there's been much less action there. But except for those two, every other state in the nation I think considers multiple laws every year and passes them and signs them. Even a Democratic governor in Arizona this year signed a ban on state funding for cloning and destructive embryo research because of public demand for that and public support for that approach in that measure. [And] in New York just a week or two ago, Gov. [George] Pataki vetoed a bill that would have made Plan B [emergency contraception] available over the counter. He did that to protect minors, to protect young women.
I'm curious how you actually work with the legislature and [groups like] Pro-Life Mississippi. So let's talk specifically about Mississippi. What's Mississippi like in your eyes?
In my eyes, Mississippi is a great state. They've been very receptive to life-affirming laws. They've tried many different approaches. Not all of them have succeeded, but the public there has been very receptive. The public has shown over and over again in public opinion polls and in electing pro-life Republicans and Democrats … [that] they want candidates who not only say they're pro-life, but who will enact pro-life measures. And so we see that as very encouraging in Mississippi.
Take me through step-by-step how you would work with someone like [Pro-Life Mississippi President] Terri Herring to get the legislature to pay attention to the laws that you guys think are life-affirming?
AUL has been working with Terri Herring and others down in Mississippi for well over a decade. … We've worked with her for several different generations of laws. Often it is much more that she is the one telling us what the state is ready for, what the politicians there are interested in, and then we help her by finding the right model language, by drafting the language. We put it together. We'll help some with strategy, some with talking points. But that's often much more dictated by the local politics, and that's where the local experts like her come into play.
We provide the constitutional advice: This is what the Supreme Court has said on this type of law, whether it's parental notice or clinic regulations or rights-of-conscience; this is the broad legal framework, and these are the options you have. We'll give her advice as pro-lifers who have thought through these issues as to perhaps the ideal type of law that we would like to see that remains constitutional.
AUL is very incremental. We want to see a law go into effect. We're not trying to get everything at once. We think we'd like to do what is possible and what the public will support. And so we'll draft an ideal bill, and then there's political discussions, and she talks to the legislators who will sponsor the bill. And if they want to change the bill, modify it, we'll help them with that, with that drafting. When they need testimony, we'll help them find the right person to testify. And then often the bills are challenged. In the last year and a half, we've been working with the Democratic attorney general [Jim Hood] there to help defend one of the laws that was challenged in court. And then ultimately the decision was instead of taking it up on appeal, it was better to go back to the legislature and just fix the concern the judge had expressed and address it through a new bill instead of trying to appeal it further through the courts. …
I know your ultimate goal is to have Roe v. Wade overturned. What are you doing between now and then to regulate abortion?
We think abortion is a great evil. It's just a great wrong that is in the country, and we, certainly as pro-lifers, look for the day and pray for the day when it will end. But the reality is right now that's just not going to happen given the current Supreme Court and given broad popular opinion.
The Supreme Court has created a situation where we have abortion on demand, and the public doesn't agree with that. That's a very different position [from] where broad public opinion is. The Supreme Court has also, through the [Planned Parenthood of Southeastern Pennsylvania v.] Casey decision, said that states have an interest and a right and an ability to regulate abortion. And so our strategy right now is just to respond to what the Supreme Court has done in Casey and to help states put in place very incremental life-affirming laws that will protect the woman, whether it's through clinic regulations to make sure she doesn't get injured by an incompetent doctor, or if there is just an unfortunate accident that happens in medical procedures that you have the right [to] highly qualified nurses and other medical equipment you need in the clinic; through informed consent, to make sure the woman is making an appropriate decision; and increasingly through ultrasound provisions, to make sure she has the chance to see an ultrasound of this baby before it's aborted; through parental notice laws.
Are these regulations decreasing the number of abortions that are performed? …
We certainly think the laws are having an impact and are effective in reducing the number of abortions. I think the reason it works is that as time goes on, more and more people in America are thinking about abortion and coming to the conclusion they really don't like it. There are fewer abortionists because students coming out of medical school don't want to practice that. It's not as socially acceptable, and they themselves are coming to the conclusion that's not how they want to be doctors. [They want to] be healers and help other people.
I think what happened in 1973 with Roe v. Wade is the Supreme Court just stopped a public discussion consensus on what America wants for abortion. I think over the last 34 years, 33 years, that has continued to happen, and that discussion is going on, but it's going on much slower.
What you see every time a legislature picks up one of these bills is that the discussion [is] around "Should we regulate abortion? Is it a good thing or is it a bad thing that we want to fence in, we want to restrict, we want to constrain?" I think that's what America is grappling with. And every time the legislature picks it up, more and more people in that state think about it, and [that is] the conclusion they come to over and over again, which is why legislators keep coming back to this, because they know this is what their constituents want from them is to keep thinking about it and keep taking it a little bit further every time, not in big steps, but take it a little bit at a time so the public can think about it and move through it.
And the public, over and over again in opinion polls, over and over again in elections, show they're very uncomfortable with abortion. They think it's necessary, but it's a necessary evil, and they do recognize it's a bad thing. And so I think what Casey allowed [was] a continuation of this discussion, and I think that's what we're seeing.
So when you talk about working incrementally, going state by state, how [do] you make that a reality?
Americans United for Life, like many other pro-life groups, was involved in putting up test-case litigation to the Supreme Court, hoping the Supreme Court would in one fell swoop realize the error of Roe and reverse it. After Casey it became very clear the Supreme Court is just not going to reverse Roe. But with Casey they said: "We'll open it up for state regulation. We understand there are other interests at stake, that the state has an interest in protecting the woman and in the life of the unborn child." Before Casey came down, we had a reversing-Roe strategy.
And so since then, Americans United for Life and other groups have been working very incrementally, trying to identify opportunities where we can protect the woman within what are the constitutional bounds today of her right to an abortion; [for instance,] parental notice, making sure that a minor woman isn't ripped away from her family and told to make this decision in secret and isolation without counseling, without mature counseling and with support afterwards. It's very clear when you talk to post-abortive women that they go through a period of grieving -- of guilt, of shame. It's not an easy period for them, and if you take them away from their family, and you take them away from their support, and you say, "You can't have any of that. Keep it secret. Keep it private. Do it yourself," that just causes all sorts of psychological and physical harms for them.
We're very interested in helping those young girls through parental notice laws, parental consent laws, to make sure the parents are involved in that, can be involved in the follow-up. We're interested in clinic regulations to make sure that when the woman goes in for an abortion that the clinic, like any other outpatient clinic, [she] has the right equipment and the right trained personnel to handle any emergency medical situations that might arise.
Tell me about how important clinic regulations are. How did that strategy come about?
I think clinic regulations are significant. I don't think there [are] any silver bullets, but I think they help promote the discussion about the fact that abortion has a negative impact on women, and we need to protect [women's health]. I think that strategy didn't come about through any stroke of genius on the pro-life side. It came about because the pro-abortion advocates succeeded in exempting themselves from any regulation. And when you look at it, it's a significant outpatient procedure, and they had exempted themselves from the same regulation that any other doctor doing an outpatient procedure of that magnitude would be subject to.
And so it's natural for the legislature to come back and say: "There's a significant procedure going on here. A certain percentage of the time women suffer severe injuries and occasionally die, and we want to regulate [it], [to] put in place the same health and safety protections we have for hospitals or for other outpatient clinics who are doing the same type of procedures.
Tell me what happened with the informed consent law in Indiana.
I think the most interesting trend right now in clinic regulations is that there is more interest in it from several states. … Indiana passed a law this year requiring that women be given an ultrasound before an abortion and that she be given an opportunity to view the ultrasound. There's no compulsion for her to see it, but this creates an opportunity for her to be fully informed, to see that ultrasound and to understand what that baby is that she's going to abort. We think it's critical to give women full information about this.
We know that when women see ultrasounds, when they get full information about what an abortion is, many women who would have chosen an abortion out of ignorance decide they really do want to keep that baby. We think that when you give women full information, when you let them make an informed choice, they're going to make the right choice. So we're very encouraged to see states do what Indiana [has done], which is make sure women have an opportunity to see the ultrasound of the baby before the abortion.
I'm going to take you back to Mississippi. I know you guys called it the "Mississippi Miracle."
That we did.
What do you mean by that?
We've called it the "Mississippi Miracle" because they've been so successful in achieving a 59 percent reduction in the number of abortions since Casey and in having six out of their seven abortion clinics close. We think that's a wonderful thing. We think that shows that Mississippi as a state, that the population there has really come to understand that abortion is not the right choice for women.
And over a period of years -- this isn't just one law in one year; this is over 12 years now, 13 years now -- the politicians have gone over and over again to the electorate and said: "We are doing this. We are restricting abortion. We are regulating abortion." And the population has responded by having fewer abortions.
And we know that women are just choosing fewer abortions in Mississippi, which is wonderful. It's not merely that the women are crossing the state lines to [have abortions in] other states. If there were lots of women seeking abortions, there would be more abortion clinics in Mississippi. We just know that many women in Mississippi are choosing not to have abortions. That's why we call it the "Mississippi Miracle."
We think that by educating the public -- not just through the laws but through having more and more crisis pregnancy centers, who are there to support the women in these difficult decisions; [through] much more awareness of the public from activism by churches, by lobbying groups, by activist groups; [through] articles in the media and just much better education and understanding that aborting is the ending of a life -- that Mississippi has come to a place where the public there is choosing to have many fewer abortions. …
When you look at the country, tell me what you see. Is Mississippi an anomaly? Is it the future?
I don't think Mississippi is an anomaly. I think they may be more conservative than some other states. They may have embraced some of these laws faster than some other states. I think the anomaly is the Supreme Court.
The Supreme Court is the one who has gone way out of step with the rest of the population and said: "We are going to insist on abortion on demand through the ninth month, through birth. We're going to just amend the Constitution and mandate that without consultation with the public, without the political and legislative process." I think what Mississippi shows is what you'd see in many states if you brought this [decision] out of the Supreme Court and gave this decision making back to the people in the states. The people would engage in a discussion through their elected representatives. … You see this in opinion polls on clinic regulations, on parental notice [requirements], on any of these different laws: The public is broadly behind them. The public would say, "We want to pass laws of this sort."
[Give me a specific example of how AUL works with state legislatures.]
... AUL has been working with rights-of-conscience bills and legislation and pieces of litigation over a number of years. And as we saw what was happening in different states, we came to understand that while most states have passed a very basic rights-of-conscience protection right after Roe v. Wade, it only protected doctors and nurses and only for abortion, and it didn't provide any remedies if in fact they did lose their job.
That's the situation in most states. … And we responded to the fact [that] doctors and nurses were facing pressure. They were facing discrimination and losing their jobs. And the issue was spreading from them, with the morning-after pill and with Plan B and with RU-486, to pharmacists. So we crafted a piece of model legislation that would protect all medical workers -- not just doctors and nurses -- for all health care procedures and provide appropriate remedies. It's employment regulation. It just protects employees from being discriminated and penalized for following their conscience at the worksite. In that sense it's very similar to [the] Americans with Disabilities Act in that it simply says, "The employer should accommodate that conscientious objection of the employee."
We drafted the model legislation. We put with it a guide explaining why it was needed, what was necessary, why it was constitutional, why it fit within the judicial precedence, and we publicized that out to our allies and friends. Mississippi said: "We want to adopt that. We want to work on that." So we went down to Mississippi. … That was passed. It was signed by the governor. We celebrated that. It has not been challenged because most of these rights-of-conscience laws are not challenged. They were clearly constitutional. …
So we're always looking for new ideas that fit within the space that Casey said you can regulate abortion to protect women, to exercise the state's interest in the unborn. And we're looking for those ideas. When we find those ideas, we take them out to legislators, and we take them out to allied groups that we've worked with over the last several decades. In most states we have a variety of relationships -- three, four, half a dozen relationships [with] legislators and allied advocates who had been working on these issues year in, year out, and we'll start engaging in the conversation with them.
Right now we're working on in vitro fertilization, an area that's completely unregulated, and we've realized there are issues there. Women need to have informed consent about what's going to happen when they go through that process. There need to be limits on the number of embryos that are created and implanted. And so we've engaged in the conversation with different allies, with lawyers, with legislators, and we're drafting a piece of model legislation. We'll take that out next year and give it to our friends and allies, … and hopefully within a couple years we'll have that passed in some form or other in several different states.
Once it's passed you get a burst of publicity, and then other legislators hear about it, and they'll consider it, or it immediately gets challenged and goes into court. And then you have a pause of several years while the courts work through it. When it's ultimately upheld, which these usually are in some form or other, once it's upheld, then other legislators who have been watching that process will say: "Now we want to do that in our state. Please come help us."
We went to Mississippi, and what we found was in some communities, women actually didn't even consider abortion to be an option. And it wasn't so much a moral issue. but it was simply that they couldn't access abortion for a variety of reasons. A couple of the women there said, "It's just as if Roe doesn't even matter out here." What do you see when you look [at these types of situations]?
Well, we certainly hope we get to a point where Roe is irrelevant. I think there are very few parts of the country where that is true. We think it's wonderful when a woman is encouraged by the social structure around her to make the choice to bring the child into the world. … We view abortion as just a wrong choice, as something that compounds the problems in a woman's life, does not solve those problems. So we think it's really critical that society -- both through our laws and through our social institutions -- support a woman to make the right choice. …
And Hillary [Clinton] and other Democrats who are staunch supporters of abortion have acknowledged that abortion is not a good thing in life, that it is the result of tragic circumstances, and it's a very difficult choice. You look at post-abortive women -- they go through tremendous grieving and a lot of suffering and pain as they try to deal with what happened in their lives and the choices they made. So I certainly think if we got to a situation where abortion was not available and not relevant, that would be a wonderful advance in this country, even if it remained legal. …
You try to work within the constitutional framework. How do you do that, and also push the envelope so that you can ultimately get what you want?
We don't have to do much work pushing the envelope. There are so many states who are trying to pass laws that are already well received by the courts. We're kept almost fully busy on that. And now on bioethics there's certainly a lot of work to be done to find the right language, the right types of laws, where there is public consensus to support them.
But on the abortion issue itself, there are so many different laws that are well tested. They've been adopted by many states. They've been run up through the courts. We work a lot on those. … Whenever we can, we certainly support the litigation; we support the laws as they're litigated, and when there's another ruling that says, "We've opened up a little more avenue," we'll look at that. We'll examine it. We'll see if that's something we should promote, but we don't actually as an organization have to do a lot to push that envelope, because there are so many opportunities. We barely keep up with the states and working on the opportunities that are just well tested and proven. We'd much rather see a law tested and proven and go into effect than try something that really is radical and pushes the envelope and gets struck down. We think that's often just a waste of a legislative year. So we often are on the side saying: "Go with what is tried and true. Let's put that into effect. We've got opportunity right now. Let's do that. Let's leave the testing for later."
Talk to me about what it meant to you that [Supreme Court Justice Sandra Day] O'Connor stepped down this summer, and what that signals about the future of the court.
We were excited when [Justice] O'Connor stepped down. President Bush campaigned promising that he would nominate judges who will interpret the Constitution and won't legislate from the bench. We're certainly hopeful that that's what he's found in [Chief Justice John] Roberts. … We think it creates a real exciting opportunity to bring the Court back in alignment with where the people are.
We certainly think that a tide has turned in America in the last decade or so. You see a lot of Republicans elected. You see a lot of Republicans in Congress, in the presidency, because the public supports moving to a place where the Supreme Court is not an activist court, where the Supreme Court resumes its role as an umpire, as a referee, interpreting the laws that the legislative branch has passed.
We think that O'Connor's retirement provides an opportunity for the Court to move back into that role just a little bit. It won't be all the way, it won't be everything, but a little bit into a role where the Court will be interpreting the law and will follow a philosophy of judicial interpretation instead of judicial activism.
How important is the Ayotte [v. Planned Parenthood of Northern New England] case, and can you comment on [the relevance of it coming] out of New Hampshire?
It certainly defines its stereotype. I think the fact that this parental involvement law comes out of New Hampshire just shows how broadly received -- how many different states that you might not expect have looked at this and said, "These are the types of things we want to do, because our parents want our girls protected."
The case in front of the Supreme Court, Ayotte, certainly could be a very significant case. The 1st Circuit, where they ruled on Ayotte at the lower level, varied from where the other circuits are and varied from what the Supreme Court had said should be the standard review for state laws. So it could be that the Supreme Court comes in and issues a very narrow ruling just reaffirming what they said in Casey, that laws like this are permissible and that when state courts and lower courts look at them, they should defer somewhat to the judgment of the legislature.
That may be what comes out of it. That would be a good thing to reaffirm where we're at with Casey. The Supreme Court certainly could do more or less with that. They could decide to tighten the restrictions and allow less than is currently being allowed under Casey, or they could broaden it. It's really hard to tell at this point what's going to happen. We don't know. We're certainly hopeful that it will broaden it a little bit, give us a few more avenues for activity.
Editor's Note: On Jan. 18, 2006, the Supreme Court issued its ruling in the case of Ayotte v. Planned Parenthood of Northern New England and found unanimously that a lower court was wrong to strike down a New Hampshire abortion law requiring parental notice and a 48-hour waiting period before a minor could obtain an abortion because did not provide an exception if the girl's health was in danger. In its ruling, the Supreme Court agreed with the lower court that the law needed such a health exception, but it disagreed that nullifying the entire law was the best solution.
I've noticed a real change in [the direction of public opinion] in the country. Talk to me about that, and whether it's emboldened the pro-life movement.
… I think what happened was in the '60s, we had the sexual revolution, and it wasn't just about sex, but all sorts of things in society changed. And we launched all these grand social experiments to say, "Let's live our lives differently, both as individuals and as society." And not all of that worked. We ran into huge problems with welfare and welfare dependency.
Divorce is a great example. In the '60s, divorce was advocated, and we said, "If we just allow people no-fault divorce, everyone's going to be better off -- the parents will be better off; the kids will be better off." We tried that experiment, and millions and millions of people participated in that experiment, and what we found out is very clear now 20 or 30, 40 years later: The kids are far worse off on any measure, whether it's dropping out of school or using drugs or getting pregnant early. The kids are much worse off, and you also see the parents are worse off. Single mothers after divorce are much more likely to end up in poverty. It's not good for the fathers either. The families just are much worse off when divorce is almost encouraged by society. …
We think the same thing happened with abortion. We think what happened with abortion is the society stepped in, the Supreme Court stepped in, and said, "Consider an abortion as a good solution to the problem of an unplanned or unwanted pregnancy." We think what society has found after 30-some years of trying that is it's not a good solution. It just compounds the problem for so many women. … In fact, AUL commissioned a [nationwide] poll last year that asked people, "Do you think abortion is generally a good thing or a bad thing?" Sixty-one percent of people said abortion is generally a bad thing. I don't think you would have got that answer 20 years ago.
I think we've gone through a process in society where we've watched the effect of abortion, and people are learning this isn't a good thing. I think it's not just about abortion, but we're seeing this change in politics generally where we had the effect of values voters in the last election. I think we're coming back to a place where people want to talk about values. They think values are important in life. They think politicians should respect values and respond to values. I think that's a tremendous development not just for life issues but for society, for the health of our society as a whole.
… [So] abortion is legal, but the goal is to have it not be available, to restrict it?
At AUL we are very pro-life. We certainly think that abortion is a bad thing. We prefer to have no abortions. We understand that right now, with the Supreme Court, abortion is going be legal in some way. And we think the most effective way to encourage a public discussion around abortion is to engage in incremental laws that are constitutional.
States right now can choose to pass a ban on abortion. Any state could step up and pass a ban on abortion. We know that will be struck down immediately. What happens, we think, when a ban on abortion is passed or when you talk about banning abortion outright and completely today is that people don't like that idea. It's very clear in the polling data. That's a negative thing in most people's view. We think that hardens the negative view. We're much more interested in passing incremental law that draws people into a discussion about maybe abortion isn't a wholly good thing.
If you introduce a law for parental notice or for clinic regulations, 70 percent of people are going to support that law. I think of it as the watercooler conversation or the dinner-table conversation at home. When you introduce a clinic regulations law, and people talk about that around the dinner table or talk about that at work around the watercooler, 60, 70, 80 percent are going to say, "That's a good thing." And when they think about that law, their view of abortion changes a little bit, and they take a few more steps down towards recognizing that abortion is a bad thing and something we don't need. And that's only a few steps, but it's a good few steps, and we want to engage them in that dialogue, and that's why we promote incremental laws. We think that's the right way to keep this conversation going, to build a social consensus around what the right approach to abortion should be.
So it's the idea that you change the hearts and minds of America, and eventually they're going to be ready to overturn Roe?
I have a friend who's pro-abortion, and I asked him once what he thought about abortion. It was a very short conversation. He said, "I don't think about that because I know where that will lead, and I don't want to go there." I think that's the situation of a lot of people who are pro-choice in America today. They just don't want to think about this difficult issue. … They want it to be someone else's problem. They want it taken care of in a way they don't need to think about it.
What we do with incremental laws is we invite people to think about it. We invite people to think about the negative impact of abortion on women. Abortion creates all sorts of psychological and health problems for women. It's a very difficult thing. It's not a good solution to the problem they're facing with the unwanted pregnancy. And so with incremental laws, we think that's the best way to continue a national conversation and move forward … towards a consensus that says: "Abortion is not a necessary thing. Abortion is something we can live without." …
We think the ultimate victory is winning hearts and minds, persuading people that the morally right thing is not to choose abortion and not to have a society that promotes abortion. And we understand you don't change people's hearts and minds in one fell swoop. You can't force them to be pro-life. What you can do is you can engage people in a dialogue, and that dialogue just takes a lot of time. And so AUL is a patient group. We understand that what we need to do is create a dialogue, create situations where that dialogue can happen. And we think incrementalism is the right strategy to make that happen.
So we're very committed to that, to working in a way that through legislation -- because … through legislation we can create conversations in states. We think it's in the states where a lot of this best work happens, where you can reach out to the average American, where you can reach out to thought leaders and engage them in the conversation to think about abortion, to think about the negative impact of abortion on women, and to think about how we as a society could envision living without abortion and supporting those women and encouraging those women in those situations to choose to keep the baby, to give it up for adoption or to raise it or have the family raise it or whatever the answer is. But we think through an incremental approach, we can encourage people and change hearts and minds and help people to see that the right answer is not to choose abortion. …
SUPPORT PROVIDED BY