November 11, 2025
The Dobbs Law for Mississippi Legislature
Class Description
The Supreme Court Landmark Case
Alliance Defending Freedom (ADF), under the leadership of CEO Michael Farris, assisted Mississippi legislators in drafting the Gestational Age Act, a law which limits abortions after 15 weeks.
To challenge the law, Mississippi’s only abortion clinic at that time, Jackson Women’s Health organization, sued Mississippi’s State Health Officer, Mr. Thomas Dobbs.
Michael Farris assisted Mississippi in its defense against this lawsuit. The case ultimately went to the Supreme Court and led to the overturning of Roe v. Wade and Planned Parenthood v. Casey. The result was that the authority to regulate abortion was returned to the states. Mr. Farris will discuss the Gestational Age Act, including the legal strategy behind it, the fight to defend it, and the outcome of the Supreme Court’s decision.
Speaker Bio
Michael Farris is a Constitutional attorney who is well known for his work with homeschool advocacy and parental rights, having worked state-by-state to preserve the right to home school in all 50 states.
Farris is the founding president of both the Home School Legal Defense Association and Patrick Henry College, a premier liberal arts college in Purcellville, Virginia. He is also co-founder of the Convention of States Project. Michael Farris has served as lead counsel in the United States Supreme Court, eight federal circuit courts, and the appellate courts of 13 states.
Most recently Michael Farris served five years as the President, CEO, and General Counsel of Alliance Defending Freedom, the world’s foremost defender of religious liberty. Under the leadership of Farris, ADF worked with Mississippi legislators to draft the Gestational Age Act which limits abortions after 15 weeks. ADF helped to defend this law in lower courts and served on Mississippi’s legal team at the Supreme Court, ultimately leading to the overturning of Roe v. Wade and Planned Parenthood v. Casey.
Diana Telles: I’m Diana Tellis, uh, a new board member with Empower You. Um, thank you to the listening audience for being here and joining us tonight, and especially thank you to Michael Ferris who has 10 kids and a slew of grandkids, and I know his time is precious. Very much appreciate your time tonight, Mike. Um, to give you some background, I’m Michael Ferris.
Mike is a constitutional attorney. Who is well known for his work in homeschool advocacy and parental rights, having worked state by state to preserve the right to homeschool in all 50 states. Ferris is the founding president of both the Homeschool Legal Defense Association and Pen Patrick Henry College, a premier liberal arts college in Purcellville, Virginia.
He is also co-founder of the Convention of States Project, with which I happen to be a volunteer, and Mike Ferris is known for his work in constitutional [00:01:00] appellate litigation and has served as lead counsel in the United States Supreme Court, eight federal court, federal circuit courts, and the appellate courts of 13 states.
Most recently Michael Ferris served. He is now retired but has had served five years as the president, CEO, and General Counsel of Alliance Defending Freedom. And for tonight, we’ll be calling that a DF. And A DF is the world’s foremost defender of religious liberty. So the reason I wanted to talk to Mike tonight on behalf of Empower U is that in 2017, under the leadership of Mike Ferris.
A DF worked with Mississippi legislators to draft the gestational age Act, which I think some of us casually call the Dobbs Dobbs Law. And I’m not sure that’s accurate, but I hear it. Um, the Gestational Age Act and it limits abortion after 15 weeks. Uh. [00:02:00] Gestation And this law passed in 2018, challenged by Mississippi’s only abortion provider, uh, Jackson Women’s Health Organization.
And that suit, uh, was named against Thomas Dobbs. I’m not sure if I understand why that’s he’s, he is named personally in that, that’s how it works, I guess. Um. A DF helped to defend that law in lower courts ’cause it was challenged of course, and, and it was struck down in the lower courts. So upon appeal, a DF, um, served as, um, part, part of the legal team, Mississippi’s legal team at the Supreme Court.
And they ultimately led to the overturning of Roe versus Wade. As well as, uh, Casey versus Planned Parenthood and all that happened in just in 2022. So did I get all that correct, Mike?
Michael Farris: Yes. That was great. Thank you with you. Good to see you again.
Diane Telles: It’s good to see you. So I’ve heard snippets of [00:03:00] this story of the overturning of Roe v.
Wade from you actually, because of my, um, affiliation with COS and I’ve heard bits and pieces and I, for years, literally for years have thought I need to get him on a podcast. I wanna dig deeper into this and find out more about the story. Um, it’s fascinating to me. Feels strategized. I, I think it must have been, if it’s not, this might go a little quicker than I thought.
Um, you know, and I’ll tell you, I have marched in the March for Life, taken my kids to Washington, dc um, and I have prayed for a cultural shift. And I’m not gonna lie, deep down in my heart of hearts, when we would march past the Supreme Court, which we did do during the March for Life, I never really thought there was any in, in my ignorance, never thought there was even a vulnerability in Roe v.
Wade for an overturning. I sort of thought that was. Sort of the pro-lifers, um, sort of pipe dream. I really did, um, shame on me and I just didn’t know enough. Um, [00:04:00] so I wanna get into that too. But, um, let’s quickly clarify some facts. Um, f for the viewers. Um. I promise I will let you talk ’cause you’re a great storyteller and I swear I’m gonna give you a chance, but I want to acknowledge a couple things.
First, Roe was established in 1973, gave a constitutional right to abortion under the 14th Amendment, um, its due process clause,
Dan Regenold: right?
Diane Telles: Then in 1992, Casey versus Planned Parenthood, remove the trimester framework that was in Roe. Um. Replace it with undue burden. Um, it’s important to note that Casey was also overturned because it was both of them.
And if we don’t mention Casey, we would be remiss because it’s sort of looks like they operate and function together. Um, so do you have anything to add to those definitions, just for clarity, for moving forward?
Michael Farris: Uh, not to the definitions, but I think it would [00:05:00] be, uh, good to, uh, go back just a little further than that, to the beginning.
And that is to say, what did the 14th Amendment really mean? I mean, what what was the correct view of abortion, um, prior to roe? Uh, and what people don’t know is that America really became pro-life in the 1840s and fifties. Uh, and, and the reason for that was that. Up until then, medical science was. Um, not very advanced in understanding how the womb worked and how gestation worked.
And we had the idea of the quickening of the baby, which if people have ever read the King James Bible, you know, the Quicken the Dead wasn’t talking about treat people trying to cross the street. Uh, you know, whether you’re, you know, if you don’t quick enough, you’re end up dead. But it was talk quick meant alive.
That quickening is they thought when, when the baby became alive. And that’s, you know, um. Into pregnancy a couple, three [00:06:00] months. And, and when they, uh, well actually three or four months when the mom finally feels the, the baby moving around. But it, all that really is, is of course, is that the baby’s big enough that the mom can feel the movements.
That’s, that’s what’s happening at quickening. Uh, but when medical science figured that out, then there was a rapid move in all 50 states, uh, either by legislation, sometimes by court decisions to become a pro-life country. Uh, because if it was alive, if it was a human being. Our law, our longstanding British American legal system was really clear.
If it’s alive, it’s protected. That’s, and, and that’s what happened. And so state by state and, uh, and so Texas’s Law that was challenging. Roe versus Wade was passed in 1858, I’m pretty sure was the year. Uh, but that’s not off more by more than a year or so. And, and, uh, what the Supreme Court said in Roe was the Texas law was.
Typical of the law that was in place at the time. [00:07:00] Now, another set of facts that was in the Roe versus Wade decision is the fact that the American Medical Association and the scientific community. Overall, the medical community, scientific community had concluded that babies were alive. And one of the, the, the report on abortion that they did, uh, just prior to the Civil War, um, said that an honest judge would call things by their right names.
And so should we, and, and in context, it meant that babies alive and to take the life of the baby was murder. That’s what the, that phrasing meant. And all of that was in the majority opinion, everything I’ve just told you about that history is in the majority opinion of Roe versus Wade. And so, so if we’re going to interpret the Constitution correctly, we, we now put the language out.
Um, no person shall be United Life, liberty, or property without due process of law. It doesn’t say citizen. Some people say, well. The 14th Amendment says that you are a citizen upon birth. True enough. You become a [00:08:00] citizen upon birth if, you know, we’re not trying to get into birthright citizenship right now, but my kids became citizens not where they were conceived, but you know, when they were born here in the United States.
Um, and so. Um, and so the, the due process clause isn’t triggered for citizens, it’s for persons. Swiss tourists comes to the United States and, uh, gets convicted of, uh, speeding. You can’t put them to death without a trial. Why? Because they’re a person and no person shall be denied life without due process of law.
And so. Uh, unborn children, both scientifically the me American Medical Association, and legally, all 50 states adopting pro-life laws unborn children were understood to be persons who had the right to life by the time we adopted the 14th Amendment in 1868. So, if we’re going to do an original meaning of the Constitution, what it means is that unborn children have the right to life yet today.
You [00:09:00] know, we’re in a period, a transition period from. Uh, the celebration of death get, there’s an opportunity now to protect the right to life on a state by state basis, but ultimately the goal is to protect the right to life everywhere. And that protection, uh, correctly understood is already in the Constitution.
If we take the original meaning of the 14th Amendment. It’s already in the Constitution and, and the only fact that I need outside of the majority opinion of Roe vs Wade to prove that is the date that the 14th Amendment was adopted. And that’s not a debated fact. You know, everybody will agree it was adopted in 1868.
And so other than that, everything I’ve just told you is from the majority opinion of Roe versus Wade. And that’s what they should have decided in Roe versus Wade. But they didn’t. They went off and made up their own rules, made up their own ideas. And foisted it on the country, um, roughly 50 years before it was [00:10:00] overturned in the Dobbs case.
So that’s kind of a little further background for you.
Diane Telles: Sure, sure. Okay. But we can presume our listening audience understands the moral implica implications of codifying abortion into the Constitution. But Justice Alitos opinion on the matter, I, I believe he wrote the opinion, um, in 20 in, in the this case.
Um. Roe was egregiously wrong from the start, which certainly sounds, from what you’re saying, it’s egregious wrong from the start. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled. So 50 years we’ve lived under Roe. And from a legal standpoint in, in terms that can be understood by those who might be in favor of abortion, even.
I mean, we can acknowledge that people might not be in favor of abortion, but they can acknowledge that the law is the law and the constitution is what it is. And I, I believe that that’s not even a hidden fact that people that are pro pro-abortion, um, recognized that [00:11:00] ROE was a, a bad decision. Um, so. Why, why, why were these bad rulings from the start then when Roe passed specifically, um, and legally speaking, you’ve just touched on it.
Um. Why is it bad law if I’m gonna try and defend this to, you know, my neighbor who is pro-choice? And I say, well, it was, it was bad decision. I can’t say bad law. I think I used to talk like that it was a bad decision. Um, how do you, how do you answer that to your, to your friend who disagrees with you? Um.
How do you, how do you answer that?
Michael Farris: Okay. Well, you have to start with, on what basis do we say there was an improper decision from the beginning? And, and so what the court said basically is that the Supreme Court made up the right out of thin air and effectively acted like a legislature. Mm-hmm. And what you people need to [00:12:00] understand is.
What the nature of a Republican form of government is. A Republican form of government is where we elect legislators to pass laws and, uh, in the US Constitution. So this is talking about all federal laws, not state laws. Uh, it says all legislative power is vested in the Congress of the United States. So all the power, 100% of the power to make laws has to come through Congress Now.
Article five of the Constitution is where you get the, um, method of amending it. And if we’re gonna focus on the federal side of that, Congress proposes constitutional amendments. And so if somebody wants to add a constitutional amendment for the right to abortion, they have to get, if they’re gonna use the Congress methodology of doing it, they have to get two thirds of both members of the house.
Houses of Congress to propose a constitutional amendment, and then 38 states have to ratify it. So if we’re going to [00:13:00] follow the theory of a Republican form of government, you have to have elected legislators make the law. If, if we’re gonna make up new rights that aren’t in the Constitution, they need to be added properly.
You can add some things through statutes, through regular laws by passed by Congress. But if you’re going to erect permanent rights, like abortion rights, you’ve gotta add an amendment to the Constitution. So the reason you know, the non-moral reason for Reposing Ro versus Wade is it was an act of tyranny.
Because when you make a law and put a law on, on top of a democratic republic where the people’s votes through for their legislators are supposed to control what laws are made. It’s just somebody else just made up the law. Anybody that makes up law other than using that proper process is a, is a tyrant.
And so what the Supreme Court did is an act of tyranny. Now, hopefully [00:14:00] everybody would take the position. I don’t care if the Tyrannies used to act stuff. I. Or if it’s staff stuff, I don’t like, it shouldn’t matter. We should not use tyranny to achieve the objectives that we want. It tyra’s not an, uh, bad because we don’t like the results.
It should be bad, period. And, and that we, we want to have a self, a system of self-government. Why? Because we’ve learned that pro, both prosperity and freedom as well as moral integrity are best preserved through. The, the process of self-government through a Republican forum, and that’s because there’s lots of little checks and balances and we don’t want one group of centers having too much power over the rest of US centers.
All of us are centers, but if we give one group of centers or a single center, too much power. It, it never works out well in the long run, even though if we, we may like some things in the meantime, it doesn’t walk out in the long run. That’s the basic [00:15:00] theory, and so if you like freedom and you like self-government, you should have been against Roe versus Wade from day one
Diane Telles: and.
That is not the answer I expected to hear, but I like that answer a lot and I understand it quite well. Um, I expected you to say something like, um, enum enumerated rights must be deeply ru uh, rooted in, um, like America’s our Nation’s history and tradition, which would also be true, correct, but, but also it has to be done properly.
Through legislature and certainly not legislate legislated through the batch.
Michael Farris: That’s, that’s another branch of it. So to, you know, go a little deeper. The, the, the question, it’s actually un enumerated rights, rights that aren’t written down. And so what rights that are, you know, the ninth Amendment says that just ’cause we wrote down some rights doesn’t mean we gave up our other rights.
And, and so just on a philosophical basis. What that means, and pretty, it is [00:16:00] pretty clear the rights had to exist by the time the Ninth Amendment was written for, to be the kind of un enumerated rights they were talking about. And whether you, whether you say that through the phrase Liberty in, in the due process clause, either the Fifth Amendment’s due process clause that applies to the federal government or the 14th Amendment’s due process clause that applies to the states, the there.
There has to be a way for figuring out what the content of the liberties that are protected and, and the answer that you referred to of the history and traditions deeply rooted in our histories and traditions. Um, well, uh, was abortion right deeply rooted in our history and traditions? I’ve already answered that question by giving you the history of Roe versus Wade.
It was not actually, the opposite is true. The right to abortion was not rooted in our history and tradition, the right to life. Was deeply rooted in our history and tradition. Um, and, and so, uh, that’s very, very clear. The only you [00:17:00] know, thi this is, this is called by a technical jargon, legal jargon of substantive due process, which is, uh, you know, you’d have to, it’d take hours to unravel that.
Really badly used phrase. Um, but the, the, the question is trying to answer is what rights are protected that aren’t written down in the Constitution? And the only right that I know of that, that I think passes the test of deeply rooted in our history and traditions that is not written down, is the right of parents to direct the upbringing and, and education of their children.
That is deeply rooted back, not only to the beginnings of American Republic, but back to the British. You know, Blackstone and deeper than that, you can go back as far as you want, as, as long as American Anglo laws existed. That right has been in existence and, uh, strongly protected. And other than that, uh, none of the major, uh, in, you know, [00:18:00] implied rights, homosexual marriage, you know, LB LGBT rights in general.
Other, you know, other kinds of things that they’ve made up outta thin air didn’t exist. You know, ask yourself the question, when they wrote the constitution, was there a right to gay marriage? Well, no, there wasn’t. You know, period. End of discussion. And, and if, if we use that test. Um, and so, uh, but you know, I, I think there’s another way to protect parental rights.
There’s a growing movement to just jettison this whole idea of substantive due process or unwritten rights. And I think there’s a way to save parental, right? Uh, even though you jettison substantive due process, and so I’d be just as happy to get rid of it entirely, but we’re not there yet. We still, we still use substantive due process.
Um, and by the way, it’s the process by which the Federal Bill of Rights mostly applies to the states is substantive due process. And [00:19:00] so, um, for example, if New York wants to be anti-gun. Second Amendment protects you. Why? Because of substantive due process. The court has held that the, uh, the Second Amendment is one of those rights that applies to the states.
Not all the Bill of Rights, which is, what’s wrong with the, with the theory is if all of the Bill of Rights applied this way, I, I wouldn’t be as worried about it. But, but it’s just some of them. And, and so by a five to four vote, the Supreme Court, um, about 15 years ago. Uh, in the McDonald versus Chicago case said that the Second Amendment was one of those rights that is incorporated into the, into the 14th Amendment.
And so otherwise it would be up to your state whether or not you had Second Amendment rights. It wouldn’t be up to, to, you know, you wouldn’t have a federally protected constitutional rights. So we have to be careful in getting rid of these things because we would, we would knock a hole in the Second Amendment entirely.
[00:20:00] We, we threw it out in, you know, every, everybody, and I don’t know anyone including the biggest critic, critic of just, of, uh, substantive due process, which is Justice Clarence Thomas, who thinks that we should get away with the do away with the incorporation doctrine. Everybody wants to keep that part of it so that we protect the Second Amendment and other things like that.
Diane Telles: All right. So, um, my apologies, but I thought un enumerated rights in my notes was spelled wrong, so I said it wrong and now I know better, and I thank you for that. So, um, back to Mississippi. So, did Mississippi come to a DF or did a DF approach Mississippi to write the gestational Age Act? Um, we’re gonna pivot to that because this is, I wanna dig into this and, um.
Michael Farris: We basically, a DF was looking for a way to get a 15 week law on, on the track to get to the, that’s what I thought. Supreme Court.
Diane Telles: Okay.
Michael Farris: And so we, [00:21:00] we talked to a variety of people and Mississippi Courageously stepped up and said, you know, some legislators there said, uh, we’ll do it. And you know, we looked at the political makeup of Mississippi and said.
That’s a, you know, that’s a viable option, option, uh, is to, is to go there and so in
Diane Telles: to Ohio.
Michael Farris: Yeah. Or
Diane Telles: Virginia.
Michael Farris: Yeah, exactly. Especially Virginia. Yeah. So, yeah. And so, um, uh, I, I had just become the CEO. Of a DF when this was just starting. Uh, I, I became CEO in January of 2017, and the Mississippi law was introduced.
That session passed the following session. And, you know, there were brave legislators who, you know, we drafted it and I’ll, I will tell you that basic strategy from the beginning. Um, the, uh, we were trying to crack. The first wedge into reversing Roe versus Wade. We didn’t, we, we [00:22:00] initially didn’t think that this case would be used to entirely reverse Roe, and the reason was we were counting votes on the Supreme Court of the United States.
Diane Telles: Mm-hmm.
Michael Farris: And to get the Chief Justice’s vote, we didn’t think that he was ready to completely reverse Roe. Um, and, but he was ready to crack a, a, you know, a a hole. And he’s several times in on various things of this sort where he basically holds the conservative view, but he likes to go slow. Uh, so he has, you know, reverse various things in a process case one.
Does something, case two does something else and you, you get rid of it. So once, once you open up the door and we thought that we could, you know, blow a hole in the undue burden and viability test with a 15 week law. Um, and so that was the reason we picked 15 weeks. That was [00:23:00] the strategy and through the trial court and the first level of appeals.
You know, that’s what we really were hoping for is to, you know, is, is to blow up the superstructure of Roe and Casey without undermining the total foundation. Kind of a, you know, we’re gonna blow the top off first and then we’re come back later and, and blow the bottom up. You know, obviously at all times.
If the, if the chance to. Reverse row jumped onto the table. We wanted to build it so that that was an option. And, and so that was built in as an option. We just didn’t think it was likely, uh, that we would get there. Uh, so
Diane Telles: so you, you knew good and Well, it would be, it would be, um. It would offend Ro you knew that right off?
Michael Farris: Oh yeah. Oh yeah. Any of it.
Diane Telles: It was clear to me. Undue burden it, yeah. Placed an undue burden. Yeah. Okay. Yeah. It,
Michael Farris: it, it, it was, they had to do something. They [00:24:00] couldn’t, they couldn’t leave ro totally in place. Uh, and we win, but we thought they were gonna modify ro rather than entirely reverse it. Uh, and you know, essentially that’s more or less what, where the chief justice, you know.
I’m gonna
Diane Telles: get, I’m gonna, I’m gonna get to it a little later here. Uh, and I’m gonna ask you, um, well, I can ask it now. Um, how, how do you do that? So, so you do, do you go and you say, um, is it part of the, the defense then at the Supreme Court when you go in? That’s part of the defense is, and by the way, Roe v.
Wade is. Needs to go and you ask for it then, or is there some other event that has to happen? You file for that and you, you, you push against it and say, well, you know, it’s time. Does, does there have to be a state case like this, that, that travels makes its way up to the Supreme Court in order to even do that?
Like, why, why did it take [00:25:00] this to get there? And I know that’s a lot. But, okay.
Michael Farris: Well, okay. First of all, the Supreme Court of the United States does not, uh, take up issues. It takes up cases, only cases. You have to have a, it’s called a case in controversy. Uh, it’s not a case or controversy, it’s a case and controversy.
You have to have a lawsuit. Smith is suing Jones. Somebody’s gotta be in court asking for relief, and we, we couldn’t ask at the beginning. Um, for a lower court. To overturn Roe versus Wade, because you don’t have the power. Only the Supreme Court can reverse Ro Roe versus Wade. And so what you’re doing when you’re in the lower courts, in a case like this, you are trying to say, look at what’s been done on all these other abortion cases.
They’re, they’re starting to erode Roe. And, and the court has opened up a little, uh, little window here, so you judge. You’re, [00:26:00] you’re dealing with something that’s not been decided exactly before 15 weeks hasn’t been decided exactly before. And look at all these other little things that have been happening.
Here’s the window opportunity for you. De decided on this narrow little challenge right here. We’re not asking you to, to do something only the Supreme Court can do, but they’ve, they’ve left a little bit of an opening for you and we ask you to enter that opening and, and rule in favor of our law now.
That’s what you say to the judge. But we were taking, trying to take enough ground that it was really, really likely that they were gonna say even if we wanted to do that. And, you know, and, and where we were litigating in Mississippi, um, you know, in the fifth Circuit, uh, it’s, you know, they’re judge a lot of judges on the Fifth Circuit who would love to reverse Roe versus Wade.
But, um, it’s, it’s just not. Um, when you’re trying to take as much crown as we were trying to take, we [00:27:00] knew from the beginning we have to get this case to the Supreme Court. That, that the, that the likelihood of a, of a, a lower court agreeing to that this really wasn’t, uh, an unspoken un uh, an open area of law where they were free to make a little variance on Roe was unlikely to be successful, um, when impossible.
Um, you, we can bring it in good faith, but ’cause we’re asking them to advance the law rather than to change the law, uh, is is technically what you’re doing, but you have to have a case. And then when it gets to the Supreme Court of the United States, even if none of us said anything about Roe versus Wade reversing it, they could do it anyway.
They don’t have to be asked, uh, they have to have a valid case in front of them where the subject matter is on the table. Um, got it. And so, um, I argued a case in the Supreme Court on Pro-Life Free speech in [00:28:00] 2018, uh, where California tried to coerce. Um, pro-life pregnancy centers to, uh, hand out information on how they could get a free abortion for the state of California and pro-life pregnancy centers didn’t wanna be forced to deliver a pro-abortion message.
It’s a free speech case now that would’ve been really, really stretching it for the court to say. And by the way, we’re gonna reverse war versus Wade. They could have, but it would’ve been, you know, like the stretch of the century for them, for them to do that. Um, right. And, but you gotta have, you absolutely have to have a viable, properly brought, properly go through the ch steps to get there.
Lawsuit or the Supreme Court not only will not. It cannot follow the Constitution and do that. They don’t issue advisory opinions. They only decide cases and controversies.
Diane Telles: Got it. Very good. I, I had a feeling that is how it was written and why it was written, and I wanted to [00:29:00] hear it from you. Um, so you’re in the throes of that.
You’re defending the Mississippi Well act. You are defending the Mississippi law and Amy Coney Barrett replaces Ruth Bader Ginsburg on the Supreme Court. Things change. Um, interesting timing. You would’ve had no way of foreseeing that, I would assume. Um, and that’s an interesting coincidence, um,
Michael Farris: that that was the key factor.
Mm-hmm. September, September of 2020, September 18th would be precise. Ruth Bader Ginsburg passed away. Um, and so you just think how close that was to the elections in November. Mm-hmm. And the fact that President Trump and Mitch McConnell worked the process and got her through in weeks, a few weeks, um, you know, something that would normally take six months or so, they, they, you know, they blew [00:30:00] the doors off and got that done and that changed everything.
Um, that, you know, the, the tactics all change because now you can count to five votes without Justice Roberts.
Diane Telles: Yeah. And I wanna say since we’re not legislating, we’re not asking to legislate for the bench either. We’re looking for objectivity about, um, Roe v. Wade a bad decision. Right. So we’ll put it that way.
Right. So, um, let me ask you this. So had other attempts, uh, state. Cases that had made its way to the Supreme Court, made its way to the Supreme Court and failed, um, to overturn Roe. Had it been done before? It been tried
Michael Farris: before? Yeah. Well, I mean, planned parent versus Casey, uh, we had. Majority, a strong majority of Republican appointed judges.
When Casey was decided, you know, when President Reagan, uh, hadn’t had, you know, named judges saying he wanted to reverse rovers his weight, um, [00:31:00] the judges that got appointed were not consistent with what he believed, and, and we basically did not have a very good system in place for, uh, republicans for screening judges.
Um, it was, it was. It was mishandled, frankly. And, and so, um, lots of people, including me, thought they were gonna reverse it in Casey didn’t happen. They, they changed it a little bit, made it stronger in many ways. Uh, more pro-abortion in many ways. Um,
Diane Telles: and at some states, I, I saw, got a little more flexibility with it to.
Michael Farris: Yeah, to put, you know, I, I called it putting sticks in the spokes of your bicycle on the way to the abortion clinic. Um, and, and so, um, but that was it. You know, it, it was
Diane Telles: mm-hmm.
Michael Farris: Really, it wasn’t, um, it wasn’t a pro-life decision in any meaningful way. And so, and you know. Republican [00:32:00] justices have, you know, bear the shame of that.
Um, so it’s, it was, it was bad decision. And, and so that was the most realistic chance. I mean, people were trying all the time and, and you know, they’re bringing other cases up, trying to, you know, chip away at it. And some chipping was getting done, you know, late term abortions and sex selection abortions.
And there, there were efforts to chip away at it, um, hoping that someday we set up the right thing and, you know, maybe someday, sometime. And, you know, it wasn’t until Amy Coney Barrett got on the Supreme Court that it looked like there was a realistic shot of doing it, and, you know,
Diane Telles: and were you surprised when you heard that decision?
June 24th, 2022. It could have gone either way.
Michael Farris: Well, no, I was not surprised because I listened to the oral argument. Uh, and, and so, um, a DF held a party the night [00:33:00] of the oral argument. Uh, and, and I wanna just be really clear, we were helping the Attorney General of Mississippi, the solicitor General of Mississippi.
Argued the case, but we had our, we had one person on our legal team that was embedded in their office, uh, working for them under their direction for. Uh, I think it was six months or something like that. It was Aaron Hawley, who’s Senator Josh Hawley’s wife. She had clerked for the Chief Justice of the Supreme Court of the United States.
And so she’s a very talented, very experienced lawyer in her own right, and, and so she was embedded. We had our whole appellate team helping them at many times along the way, but it was. You know, their people, their solicitor general argued the case in the Supreme Court. We did a lot of things for them, including helping coach Scott and, you know, giving him numerous practice rounds to, to practice his oral argument.
So we were their helpers. They did the case, they did a great job, but I, I was not surprised because I’ve listened to. Dozens and [00:34:00] dozens, probably a few hundred Supreme Court arguments in my life, and I’ve only been wrong twice as to who’s gonna win the win, the, the case after I listening to the, or oral arguments, you usually can figure it out.
They don’t tell you out loud how it’s gonna come, but if you know the law and you know the justices and their voting patterns, and you know what the questions they ask and what the answers were. You know, somebody who’s, you know, had that level of experience can figure it out. And I, I, I, I picked it at, you know, six to three and I was right.
So, yeah.
Diane Telles: So I. The overturning of Roe pushed the responsibility back to the States. Can you explain to our audience, I, I, I know this, um, because of some of my involvement with you, um, but can you explain to our audience why states rights are federalism is so important?
Michael Farris: Well, [00:35:00] um, the founders believed that.
To limit government, you needed to reduce the number of issues that can be decided on more than one level. And so it’s, you know, uh, it regular murder. If you, if, if you know Billy Bob shoots Jimmy John in the state of Ohio. That’s not a federal case. You, you can’t bring a federal case because crimes are state matters.
Cri you know, normal criminal law. You know, if you murder a federal official, that’s different. Now you can go to federal court ’cause you, you’ve killed a federal judge or somebody else. If you, if you, you know, if you murder a federal official, you’re, you could be tried in federal court for that, but, um, but most of the time.
Crimes are state matters. Education is state matters. [00:36:00] Family law, state matter, inheritance law. The vast majority of our law is supposed to be exclusively in the jurisdiction of the of the states and the things the federal government has jurisdiction is supposed to be exclusively in their jurisdiction.
There’s, if we follow the Constitution correctly, we would have almost no overlap. Why? ’cause you don’t get anything of value when you have two levels of government except confusion and wasted money when you have two or more levels of government. ’cause you can have local government too, deciding the same stuff.
It it, you know, it doesn’t make sense to have federal education and state education and local education just doesn’t make sense. So the founders created a system where one level and only one level of government was dealing with each issue. Abortion enforcement belongs at the state level, the enforcement.
Now it, I, because of what I said earlier, I think that states are obligated to protect the [00:37:00] right to life. Even, you know, just as, as a state can’t pass a legitimate law that says we’re gonna kill all the redheads in our state. And so, you know, we’re, we’re gonna allow the killing of redheads. It’s not murder to kill redheads.
Uh, you have to make it, uh, you know, a state that tried to do that. It would be a violation of the, of the cons, the federal constitutional rights of redheads. And the states would be over. Any law of that court sort would be thrown out. The same thing should be true of babies, but we’re not there yet. Uh, so that babies shouldn’t be able to be killed by a state Now.
Whether they make it five years in prison or 20 years in prison, or life without parole or capital punishment. The states decide how they’re gonna punish crimes. But, uh, and, and then, and then the vast majority of cases, they get to decide what the crimes are. And so we’re in, we’re in that situation where.
States get, decide what the crimes are, and they get to decide whether it’s a crime, whether or [00:38:00] not it’s a crime to commit abortion. And some states have now outlawed it and made it a crime, and other states are not doing that.
Diane Telles: So I’m gonna get to a couple questions here just so we don’t, uh, go past and, and miss the questions.
Um, we’ve got one here that says, does it drive you crazy that the Supreme Court never just seems to make a decision, um, instead always going slow over a multi-step process.
Michael Farris: Um, well, yeah, it, it, um, a friend of mine wrote a parody of Mama, don’t Let your babies grow out to be Cowboys. And it’s a mama. Don’t let your babies grow out to be lawyers.
And, and say that one line is then lawyers don’t hurry. Uh, um, uh, your case is your worry. They’re into this business for life. And so, um, you know, there’s some of that just in the, in, in the nature of, of law. That it, it is slower than it should be. That that part drives me crazy. Um, [00:39:00] but it, the, the good side of it is, is that we shouldn’t be doing things precipitously.
Roe versus Wade was a precipitous quick decision. It was a radical, drastic change in the law. You know, basic, basically outta nowhere. There were, there were a few hints that was coming, but they were, it was basically outta nowhere. And so, um, the reason that, um, it’s not a good thing to do radical things because the radical dramatic things oftentimes not always are the, um.
Invention of some law that should be made by the legislative process, not by the courts. And, and so, uh, same-sex marriage is one of the, when the people were voting on statewide same-sex marriages, traditional marriage was being approved in this country. The, the nation believed in traditional marriage. As soon the Supreme Court entered the fray and decided it for the whole country [00:40:00] and another act of judicial tyranny.
Now people’s views have changed. And so, um, you know, it was, it was better when it was being decided state by state. We were doing a lot better on that issue than once the Supreme Court forced it on us all.
Diane Telles: So, another, another question here is, um, what is gonna happen in the Supreme Court with Trump on tariffs us?
Michael Farris: I don’t know. I didn’t listen to the oral argument. Um, reading the news accounts about the oral arguments. Um, I think it’s, I think the president’s going to have some problems with that case. Likely. Uh, you know, the, the question is, is it a foreign policy error where the president can unilaterally do things or is it a tax?
Is it, if it’s a tax, it has to be imposed by Congress, not by the president. And that, that’s the dividing line. And there’s, there are people go both ways on it and. From what I read, there were judges that would go both ways on it. [00:41:00] Now, if I’d listened to the multiple hours of oral argument. I would’ve been able to predict better, but I’m, I’m getting ready for my own oral argument on the 25th of November, on in, in, not in the Supreme Court, but in the federal district courts on the constitutionality of silencing pastors, about preaching in, in, uh, about candidates, uh, in the pulpit.
That case is, I’m gonna argue that case on the 25th of November. And so I didn’t take the time to go listen to the whole oral argument on, on tariffs.
Diane Telles: Fair enough. You’re a busy guy. So, um, I’m gonna, I have another question here that I’ve avoided because it kinda looks a little like A-A-C-O-S mole and that’s okay ’cause we love those.
But self-government government relies on a Congress that actually acts. What Congress with Congress unable to act on anything. What choice is left other than tyranny?
Michael Farris: I. Well, um, you know, uh, we can, uh, take away a [00:42:00] lot of Congress’s decision making authority. Uh, the states can do that through the Article five process and, uh, so that we don’t get into that deeply.
I think that would be. You know, it’s like somebody welcoming you in a home on one basis and you take it and do something else. And I don’t wanna, I don’t wanna abuse my, my, uh, invitation here tonight. So I just encourage people to go to the website of convention of states.org or.com rather, convention states.com and read about that if you’re interested in it.
Diane Telles: Very good. Thank you for that. So, um. I’ll, I’ll have one more question to you about, uh, Supreme Court decisions, but we’ll go with this last question here, um, just for the sake of, of promoting Alliance Defending Freedom, because it is pretty interesting what they’re doing, and I realize you’re retired from there now, but you’re, you’re probably still involved and I know you know the leadership there very well.
What other kinds of cases do they, um, A DF get involved in? Mike?
Michael Farris: Well, a DF as you’ve mentioned, is the largest, um, Christian conservative legal organization in the country. Uh, has a [00:43:00] staff of about 4 30, 4 40, something like that. And, um, it is, uh, has five areas that it works on right to life, religious freedom.
Family, uh, and marriage, basically, you know, traditional marriage issues. And, um, you know, in, in that, all the LGBT stuff, like vast majority of the transgender sports cases are a DF cases, uh, where we’re trying to keep girls sports for girls, biological girls only. And uh, and then we do freedom of speech.
And, um, parental rights. So those are the five areas that a DF works on. And, um, it’s, you know, it’s, it’s legal team on each of those five areas. Standing alone would be the largest group in the country just on that issue. But we deal with five issues and. Right. I’m fully retired from there, but [00:44:00] it’s gonna be impossible for it ever to not be.
We, uh, you know, that’s, that’s still, you know, I still that feel that in my blood and, uh, I know I’m very, very supportive of a DF and you know, and I will say, but I will say, but other. There are other, many, many good groups. Uh, first Liberty, Liberty Council, Pacific Justice Institute, mountain State’s Legal Foundation and more.
There, there, um, there are a lot of good groups, um, and the less total legal team is about three times the size of. The conservative legal team, the, the C Christian and other conservative legal teams, it the total number of people and money and power they bring. We’re about one third or so. Now, the good news is when I was a young lawyer, um, I started doing this kind of work full-time in 1980.
And when I did, when [00:45:00] I, when I was, when I came on full-time doing this. I was the third lawyer in America to be doing this kind of work full-time. Third. Now, the A CLU had been existed for decades at that point. It had hundreds and hundreds of lawyers and there were, uh, many other legal groups. So the entire conservative legal community did not exist in 1980.
And, and so, you know, we’re now 45 years past that and to, to say that we’re one third the size of the left’s legal team. Is an improvement, a dramatic improvement over 45 years because they’ve been at this for a very long time. And, and so, um, but still, uh, you know, bottom line is the left invests more in, in advancing their agenda than the conservatives do in their agenda.
As you know, we just have to face up to that fact that, you know, if we want to, uh, fight fire [00:46:00] with fire. We need to put more forces on the field. And so every one of those groups I mentioned and more that I didn’t mention, need and deserve people’s support.
Diane Telles: Very good. I’m, I’m shocked to hear that. Um, so that’s good to know.
We’re glad to know it. Um. Another couple questions. Has the definition of personhood been firmly established by the Constitution or is it evolving?
Michael Farris: Well, there’s properly understood. No constitutional definitions evolve. Uh, they, they mean what they meant, that when they were written, and so now discovering what they meant when they were written, sometimes you have to do good historical research to do that.
But there’s a great article. Uh, written in the Harvard Journal of Law and Public Policy, which is one of the law reviews present, uh, produced by the students of Harvard University. It’s the Federalist Society chapter at Harvard, har Harvard that runs that, and a guy, I’m pretty sure it was Chris Cradock that wrote the article that makes the [00:47:00] person who deci, you know, argument that basically what I’d been teaching in my con law closet at Patrick Henry College for a, you know, a long time before he wrote the article, but he, he put it.
A lot more depth into it and, you know, did the full exoneration of that. And so I think it’s, you know, his article is definitive on the issue and, and it’s evolving only in the sense of the degree of recognition of it. Um, it, it, it we should be advocating for fixed definitions of terms.
Diane Telles: So one last question here and then I’ll ask mine.
Um, we’ve got about five minutes here more. Um. Do you see any, again, another question, I thought we’re down to the last one here. Do you see any way that clear cut separation of powers among the three branches will ever be reestablished?
Michael Farris: Well, outside the Convention of Estates process, um, people have to decide whether we like the idea of judges making up laws [00:48:00] or not.
And if, if, if we would teach people the truth about these things. Um, then it would help, I help. I, you know, in addition to teaching constitutional law, Patrick Henry College, I taught it online for homeschoolers for at least 30 years, and people that I’ve taught. Have now been the solicitor generals of three states.
Uh, they’ve argued about six or seven cases in the Supreme Court of the United States. There’s one of ’em that’s a member of a Congress. Um, there are lots and lots of, lots of, lots of lawyers on the field that I’ve taught over the years. And, and so, you know, I, I’ve, I’ve taught 10 to 15,000 people. This, this originalist view of the constitution.
There are others that do this. I mean, Rick Green with David Barton teaches, you know, a lot of this. And, um, and so, you know, [00:49:00] but the basic problem is we don’t have people who really understand the Constitution and, and you, it’s a good thing to read the Constitution, but the, the proper understanding of constitutional law is what did the, what did the words say?
What did the people who wrote the document think those words meant? What does the Supreme Court said about those words, which is more often than not wrong? And then when you identify whether what the Supreme Court said is right or wrong, then you have to say, what are we gonna do about it? That’s when you know all the answer to all those questions.
Now, you know, constitutional law. And so I’ve taught that to thousands and thousands of high school kids. Um, and so there’s no adult in this country who can’t learn the, the answer to those four questions. And, and so if more and more America. Americans knew the answer to those four questions. What do the words actually say?
What did they mean to the people who wrote them? What does the Supreme [00:50:00] Court said about it? And if the Supreme Court’s wrong, which they, you know, again, often are, what are we gonna do? Those are the four questions and that’s what, what people need to know. And if we had more people who would do those, you know, acquire that much knowledge, which you know.
You can get the most of it. I mean, my con, my con law course on video is 25, 30 minute sessions. It takes about eight hours. And so in eight hours of, of learning approximately. You can get a deep understanding that that is better than most people go to law school, frankly. But it’s, it’s not, it’s not that hard.
You know, a normal person can understand it and, and so, you know, that’s our duty, frankly.
Diane Telles: Well, you just answered the next question. Possibly. It says, more forces on the field, which you had suggested. Is there some way a retired non-lawyer, volunteer, uh, retired non-lawyer, volunteer could, could give their support to agencies like a DF and [00:51:00] others?
Obviously donations, but maybe learning, learning the constitution,
Michael Farris: learning and, and, and. Um. One of the things that is really helpful about spreading the word about these organizations raising money is a really good thing. But here’s when, when, when people on the left. Wanna, you know, go do something bold.
They know that the A CLU is likely there to, uh, help them. The, there’s a whole lot of conservative people that don’t know that groups like a DF even exist. And so they’re not bold. Uh, and so when you just spread the word about the existence of these kind of organizations and say, do you know about this?
Just, just telling, go look at the website here. You know, I heard about this group. Go read about them. You know, if they get, if they give, great, but. When people, um, have bad stuff happen to them. Uh, if you know who to call, you can go do something about it. Like, you know, there’s a [00:52:00] girl I’ve known since she was 10 years old and she’s now, you know, got grown kids.
So she’s still a girl to me. But, you know, I’m, I’m the age, I’m, I’m her, her father’s age and, and a teacher in Loudoun County got fired for speaking out against. Um, the LGBT program in, in the schools, and he’s in a Bible study with Stephanie and Stephanie’s known me since she’s 10. She calls me and says, can you help Tanner Cross?
And I said, let me get him on the phone with you. I got him on the phone with Tanner Cross and we blew that up and that changed a lot in Virginia Law and it won the governor’s race four years ago. And it’s because Stephanie knew who to call. And so, uh, that’s, you know, that’s what the average citizen can do, is learn how to tell your friends.
And it, it makes more people be bold when they know somebody’s gonna be there to defend them.
Diane Telles: Well, pastors definitely as well need to learn that that is the I know, I know. That’s a, that’s another podcast, Mike. I think we [00:53:00] could do, so we’ve got, uh, Dan’s joining in here. To we begin wrap. I just
Dan Regenold: got one question I want to ask Michael before you have to leave, and that is, would you tell us just a little bit about Patrick Henry College?
I’m not familiar with it.
Michael Farris: Sure. Um, Patrick Henry College, I, I was the founding president. It opened in 2020. Uh, it has. About, uh, a little over 400 students. And, uh, it’s a, it’s a Christian college, an evangelical Christian college. Um, you know, some Christian colleges bring people in to get ’em saved, uh, and, and, you know, train ’em.
We, you have to be a Christian, you know, and, and agree with our statement of faith to come and everybody there, the, the pe everybody. Associated with the college has to agree with our statement of faith because we’re training people in leadership and we don’t wanna train up the other side’s people in leadership.
Um, and so, uh, uh, we have, um, we teach government, you know, our, our majors are government, strategic intelligence, [00:54:00] um, economics and business analytics is, uh, history journalism, classics. And one more I’m forgetting. Um, but I, I’ve given you all the big ones. Um, and the biggest three are strategic, uh, well government, which you can go to law school with any of those things, but we send a lot of people to law school.
We have won the moot court National Championships, which is legal debate is a simulated Supreme Court argument. We’ve won. 14 national championships in the last 25 years, and no other college has ever won more than two championships. Last year we beat Yale in the national championship round. Um, they. It was their first trip to the national finals.
It was our four and we beat them. We, we, it was our 14th national championship. So we are clearly the best pre-law program in the country. And it’s, it’s conservative Christian, [00:55:00] originalist, constitutionalism, everybody at the college, you’re gonna be a. Um, a classics teacher major, you take constitutional law, you are gonna be a history major.
You take constitutional law. And so, um, and rhetoric and philosophy. So it, it’s a classical Christian core with apprenticeship methodology and um, it’s tuition is lower than, um, most private colleges. And, and so, um, and we give a lot of scholarships based on merit.
Dan Regenold: Well, thank you for, thank you for filling in on that.
And, um, I was shocked to hear about the, we’re not shocked to hear about the three to one ratio. That’s scary. And, uh, that’s really interesting about Josh Hawley’s wife and for all those, Amy Coney Barrett Bashers out there. Um, it was good to hear you really talk about how Pivotal, um, her involvement was in the case.
Michael Farris: Yeah, she’s great. I mean, on that issue, you know, I, I wish she was, you know. [00:56:00] More like me in some ways, but, but you know, I’m gonna give her a whole lot of, of leeway for a long time. She opened the door to save the lives of millions of babies.
Dan Regenold: Diana, any, any last words you wanna share before we move on to
Diane Telles: just thank you for your hardworking with constitutional law, Mike and for all everything else you do.
And thanks so much for spending time with Empower You Tonight. Very much appreciate it.
Michael Farris: I was honored to be here. Thank you very much. You have a great program. Looks like.