ARI SHAPIRO, HOST:
It's the biggest challenge to Roe v. Wade in decades. This week, the Supreme Court will hear arguments over a Mississippi law that bans abortions after 15 weeks. Lower courts have said it's unconstitutional. Until now, the justices have held that abortion is a constitutional right until a fetus can survive outside the womb, about two months later than the Mississippi law. Phil Bryant is the former governor of Mississippi who signed the bill three years ago.
Welcome to ALL THINGS CONSIDERED.
PHIL BRYANT: Thank you so much. Glad to be here.
SHAPIRO: When a lower court struck down this law in 2019, the judge wrote, the state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign fueled by national interest groups to ask the Supreme Court to overturn Roe v. Wade. So now that the case is before the Supreme Court, would you say that, yes, this was the strategy from the outset?
BRYANT: Well, I wouldn't go that far. First, I think that that statement alone would show the bias of the judge. He's not ruling on that statement, if you will, on the Constitution. He's not ruling whether or not the gestational period can be compressed to 15 weeks. And science is telling us every day those numbers are getting smaller and smaller.
SHAPIRO: Well, to be fair, he had to defer to the Supreme Court, which is where it is now.
BRYANT: He does defer to the Supreme Court, which is exactly what he should have done. But his commentary there says that he predisposes what the state of Mississippi - that every member of the House of Representatives voted for the bill, every member in the Senate, the governor, himself, did this for the purpose of overturning Roe v. Wade.
SHAPIRO: Is it your goal, though - I mean, without judgment on whether it's good or bad to overturn Roe v. Wade - was that your goal from the outset here?
BRYANT: Certainly we would be prepared and are prepared to challenge Roe v. Wade because, like many better legal minds than mine has said - Judge Antonin Scalia and Judge Clarence Thomas both have said, as their cursory review of the law, that the Constitution does not guarantee the right to an abortion. It does not allow the federal government to take away that jurisdiction from the states.
SHAPIRO: That is certainly a view that some justices have held, but a majority of justices for 50 years have upheld the constitutional right to abortion. I'm curious about the 15-week cutoff.
BRYANT: And many judges in their day supported the prohibition for women to vote. Some said that human beings were property. So the Supreme Court, as we have seen, will change and - women's suffrage, for example. I don't know anybody in their right mind that would say that's not really a constitutional authority.
SHAPIRO: If they uphold the Mississippi law, the justices have options about how far to go. Attorneys for your state have laid out a path where they could ban abortion entirely or the court could uphold the law, allowing abortion up to 15 weeks. What outcome would you like to see?
BRYANT: I think I would like to see the outcome of the authority returning to the states. So the democratic process was substantive due process. The democratic process that worked for hundreds of years here in the United States said the people of the states have the authority to determine whether or not abortion would be legal in their state.
SHAPIRO: Now, if that happens, about a dozen Republican-led states have trigger laws that would automatically ban abortion if the Court does overturn Roe v. Wade. Do you feel like the tip of the spear here? What would it mean if your state, Mississippi, is the one that tips the scales?
BRYANT: Well, I hope we are because I am a pro-life advocate. I believed that as a child. Anyone that's seen one of the more modern sonograms understand there is a heartbeat at about six weeks. And so here we're saying, this child has a heartbeat, its brain tissues have been developed, it can feel pain.
SHAPIRO: Well, when you say, it can feel pain, I do need to note that all the major neonatology groups in the country, as well as the American Medical Association, have noted that the neural pathways in the brain and elsewhere are not developed enough to feel pain before about 24 weeks gestation.
BRYANT: Well, these are some of the same people that say it - that it's comfortable for you to go in with an instrument and crush the skull.
SHAPIRO: We're talking about medical experts, however you want to characterize them. They say the neural pathways in the brain of the fetus are not developed enough to feel pain before about 24 weeks.
BRYANT: And I will say that I won't argue that point with these doctors. But I will tell you at 15 weeks this child is developing. There's no doubt it's a human being with fingers and toes and reactions. But again, let's just say that you're - whether you're for abortion or against abortion, set that aside for a moment. There is no right within the Constitution to take away from the states their authority in the democratic process to prohibit abortion.
SHAPIRO: And that is the argument that Mississippi attorneys will be making before the Supreme Court this week.
Former Mississippi Governor Phil Bryant, we're grateful for your time. Thank you.
BRYANT: Thank you so very much.
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