Conversation with Catherine Glenn Foster ’16, President & CEO of Americans United for Life

JWI: Can you tell me a little bit about Americans United for Life?

Catherine: Americans United for Life (AUL), the nation’s premier pro-life legal team, works through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death. AUL is a nonprofit, public-interest law and policy organization that holds the unique distinction of being the first national pro-life legal organization in America— incorporated in 1971, before the infamous Roe v. Wade decision.

AUL’s legal team has been involved in every abortion-related case before the U.S. Supreme Court since Roe v. Wade, including AUL’s successful defense of the Hyde Amendment before the Supreme Court. AUL’s legal expertise sets the bar for the development and implementation of effective pro-life legal strategies. At the state, federal, and international levels, AUL works to defend life in law. Specifically, AUL knows that reversing Roe v. Wade can be accomplished through innovative legal strategies that accumulate victories now and simultaneously build momentum toward ending the destructive legacy of Roe.

Importantly, AUL works at the state level to craft tailored strategies and legislative tools that will assist state and local officials as they defend and protect life. In all 50 states, AUL’s team has worked with governors, legislators, and pro-life leaders to ensure that everyone is welcomed in life and protected in law. State-specific strategies, policy expertise, and comprehensive legal analysis are extraordinary resources that AUL makes available to pro-life leaders nationwide. Defending Life, an annual guide that details the protection of life in all of the 50 states, analyzes many important issues, provides model legislation, and compares the 50 states in the well-publicized, state ranking “Life List.” Defending Life has been unparalleled in offering legal strategies that limit the abortion license created by the Roe Supreme Court and preparing the ground to overturn this tragic and destructive decision.

JWI: How has your Fellowship with the James Wilson Institute impacted your work with AUL?

Catherine: My time with the James Wilson Institute has had a profound impact on my work with AUL. The fellowship is about restoring to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights, the core of things. By participating in the James Wilson Institute fellowship, I was able to deepen my understanding of the foundational principles of our nation, the “laws of Nature and reason,” central to which is the intrinsic right to life of every human being, from conception to natural death. But even beyond that, the fellowship provided me with a clearer framework for the interplay between the natural law and positive law. Legislation and rulings must be based firmly on the deep axioms of law, the principles of natural right, though tailored as needed to distinctly local conditions. As Professor Hadley Arkes queries, “Where in all of this would we find the record, to be lingering in time, that we were here: that the law we are preserving would be as comprehensible and compelling, as resonant with common sense, in the next generation as it is in our own, and as it will ever be?” Only when our laws adhere to the natural law can legislators, jurists, and we as members of a just society give our fullest, most coherent reasons for the laws we enact and follow. At AUL, we work daily to craft and enact laws based on first principles, rejecting the moral incoherence of abortion, and building a right society in which everyone is welcomed in life and protected in law. Through my time with the James Wilson Institute, I have both the background and the tradecraft needed to lead the team in doing just that.

JWI: What are some promising legal cases or legislative initiatives AUL is spearheading?

Catherine: The pro-life movement will never abandon women to the whims of an under-regulated, predatory abortion industry. The Supreme Court’s controversial, anti-woman decision in last June’s Whole Woman’s Health v. Hellerstedt emphatically underscores the strategic effectiveness of AUL’s “mother-child” strategy.

In Hellerstedt, the Supreme Court invalidated a Texas law requiring that abortion clinics meet the same patient care standards as other facilities performing invasive, outpatient surgeries and that individual abortion providers maintain admitting privileges at local hospitals to facilitate emergency care and the treatment of post-abortive complications. The five-justice majority also summarily rejected many of the guiding principles in its prior abortion decisions and left lower courts with insufficient guidance as to how to evaluate future abortion regulations and restrictions.

The Hellerstedt majority placed a clear priority on mere access to abortion facilities, accepting at face value the self-serving claims of abortion advocates that enforcement of the Texas requirements would force abortion facilities to close. Contrary to established legal principles, the Court improperly placed the burden on state officials to prove that health and safety requirements would benefit women and not impede access to abortion clinics.

The Hellerstedt decision and its application by federal and state courts will make it more challenging to enact laws addressing the epidemic of substandard abortion care in America. However, it also provides implicit guidance for pro-life efforts to protect women and their unborn children from the scourge of abortion.

The Hellerstedt majority implicitly suggested that states may still regulate abortion facilities to ensure some degree of patient safety and to address dangerous, predatory abortion providers. Importantly, the Court acknowledged that the “Kermit Gosnell scandal,” where a Philadelphia abortionist operated a dangerous and unsanitary clinic for years before being investigated and prosecuted for homicide and more than 200 violations of state abortion laws, was “terribly wrong” and involved “deplorable crimes.” The Court also specifically acknowledged the importance of abortion facilities being “inspected at least annually” and the inclusion of appropriate enforcement mechanisms, such as civil and criminal penalties, in abortion regulations and restrictions.

AUL’s “mother-child” strategy, which seeks to legally protect and advance the interests of both a mother and her unborn child, is perfectly positioned to advance pro-life interests in a post-Hellerstedt world. As we begin preparing for the 2018 state legislative sessions, AUL will promote our Women’s Protection Project, showcasing our groundbreaking Enforcement Module that promotes comprehensive inspections for abortion facilities and includes the strongest enforcement options for pro-life laws. We will also promote abortion regulations and restrictions that will survive post-Hellerstedt judicial review, including new informed consent requirements for drug-induced abortions, the prevention of coerced abortions, and increased protections for minor girls and parents’ rights to be involved in the abortion decisions of their daughters.

We will also vigorously promote our Infants’ Protection Project, which protects unborn infants from eugenics, barbaric late-term abortion procedures, and pain; affords legal protection and recognition to unborn children outside of the context of abortion; ensures that mothers facing poor prognoses for their unborn children are informed about the availability of hospice care for their families; and recognizes a deceased unborn infant’s right to dignified treatment, including a respectful burial.

These two critically important projects are naturally complementary. Both contain model legislation designed to protect unborn children and their mothers, exposing the lies propagated by the abortion industry that abortion is beneficial to women and that a woman’s interests are often at odds with those of her unborn child. These special Projects encapsulate our “mother-child” strategy and are well-suited to advancing the case for life after Hellerstedt.

The pro-life movement is winning, women and their children are benefitting, and the abortion industry is fighting for its very survival. We must not hesitate to push our advantage. In 2017 and 2018, AUL will redouble our efforts to advance the goals and component legislation of the Women’s Protection Project and Infants’ Protection Project, striving for the day when everyone is welcomed in life and protected in law.

JWI: What do you see as the path forward for the pro-life movement?

Catherine: AUL works in many arenas: Congress, state legislatures, the courts, the media, and the “court” of public opinion. All are integral to advancing the pro-life cause. All must be utilized in efforts to enact life-affirming laws that protect women and children today and that also build the legal case for Roe’s ultimate demise.

For example, without understanding that Roe, the tragic Supreme Court decision that legalized abortion-on-demand through all nine months of pregnancy, was significantly modified by the Court’s 1992 decision in Planned Parenthood v. Casey, there can be no effective strategy to overturn the current regime of abortion-on-demand. Twenty years after Roe, the Supreme Court substantially changed Roe and the Court’s justification for upholding a constitutional “right” to abortion. In Casey, the Court said that Roe should not be overturned merely because its original rationale might have been wrong. Instead, the Court held that more was needed to justify overturning Roe because women had come to “rely” upon abortion as a backup to failed contraception and to ensure their positions in society. In other words, the “right” to an abortion had to be reaffirmed because of women’s “reliance interest” in abortion.

The recognition of this “reliance interest” changed the manner in which the Court maintained control over the abortion issue. There is no majority of the Court today that defends a historical right to abortion or that believes that an abortion “right” is deeply rooted in American law or tradition. Nor is there a majority that holds to Roe or Casey because of a lack of information about fetal development or the unborn child’s status as a person. The “reliance interest” rationale is the proverbial glue that now holds together a majority of the Justices in support of Roe.

Consequently, historical arguments that Roe was wrong as an original matter of constitutional interpretation will always be necessary, but insufficient. Likewise, establishing and focusing on the humanity of the unborn child from conception will always be necessary, but not entirely sufficient.

This means that focusing on the unborn child alone will not effectively counter the support for legal abortion in the courts (and lead the Court to overturn Roe or Casey) or decisively change public opinion. The impact of abortion on the mother will always be a concern.

The “reliance interests” rationale is mirrored in public opinion that legal abortion, at least to some degree, is a “necessary evil.” This public perception must be countered with data about the negative impact of abortion on women. As Nicholas DiFonzo, professor of psychology at Rochester Institute of Technology, explained in the November 2011 issue of First Things, specifics about the negative impact of abortion and the practical impact of abortion policies on both women and their unborn children are critical to changing public attitudes toward abortion.

Educating about the negative impact of abortion on women includes both rebutting the medical mantra that “abortion is safer than childbirth” and increasing public awareness of both the short- and long-term risks of abortion to women. Such efforts are important to convert a “necessary evil” in the public mind into an “evil,” pure and simple.

Further, AUL’s Women’s Protection Project and its component legislation advance the state’s critical interest in protecting and preserving maternal health. Each piece of model legislation is based on and specifically cites to the growing evidence of abortion’s negative impact on both women and their unborn children. Each piece of model legislation featured in the Women’s Protection Project has been specifically drafted to counter the myths that legal abortion is safe for women and that women must rely on abortion to secure their places in society. Specifically, AUL model legislation effectively dispels and rejects any premise that the abortion industry operates its clinics in a safe, patient-centered manner, that maternal health is advanced by mere access to abortion procedures, that chemical abortion is a safe or desirable option that empowers women, that parental involvement laws victimize minors, or that the abortion industry can be trusted to police itself.