On a blustery autumn afternoon in 1983, Andrew Puzder went for a jog. As the young lawyer wound his way through a park near his home in Clayton, Missouri, the words came to him.
On the back of an envelope, Puzder jotted down the intentionally provocative refrain, which would eventually become the preamble to a Missouri law that fractured the US supreme court and came within one vote of striking down a woman’s right to an abortion: the life of each human being begins at conception.
In the years and decades that followed the Missouri case, Puzder would rise from a courtroom champion of St Louis’s religious right to fast-food executive and, eventually, to Donald Trump’s felled nominee for labor secretary.
On Wednesday, Puzder, the CEO of CKE Restaurants, the billion-dollar parent company of fast-food chains Carl’s Jr and Hardee’s, withdrew his nomination to be labor secretary amid a delayed review of his byzantine business interests, details about his acrimonious divorce and revelations that he employed an undocumented immigrant as a housekeeper.
But a lesser-known element of Puzder’s record may have best portended this last-minute twist. For proposing and establishing in law the anti-abortion concept that life begins at conception, he earned the sobriquet “author of controversy”.
In the years following the supreme court’s 1973 decision to legalize abortion, Missouri was a fulcrum of conservative backlash to Roe v Wade, and Puzder was the state’s most prominent anti-abortion lawyer.
Across the state, anti-abortion activists staged demonstrations and sit-ins at abortion clinics, which frequently led to arrests on charges of trespassing. Puzder, who at the time was an associate at the law firm of Morris Shenker, was among a group of lawyers who volunteered to represent the activists in court. He successfully argued in a majority of the cases that the religious and moral conviction that they were doing more harm than good justified breaking the law.
Though Puzder was raised Catholic, it was law school, and specifically a discussion on Roe v Wade, that triggered his interest in the anti-abortion movement. Puzder was “appalled” by the legal underpinning of Roe, and spent years searching for the right argument to challenge, according to a 1989 Washington Post article.
“My impression was that he was generally opposed to abortion because he thought the law was wrong,” said Samuel Lee, one of the activists Puzder represented in court, who is now an anti-abortion lobbyist in Missouri. “But the more he got involved with the pro-life group, he was naturally attracted to it. He was absolutely a part of the movement.”
In 1983, Puzder had the idea to define when life began in statute. Together he and Lee worked with their partners in the state legislature to draft a bill, which included in the preamble a declaration that “life begins at conception”. It also included provisions that banned the use of public money for an abortion and required physicians to perform “fetal viability tests” on women who were 20 weeks pregnant.
“My goal was to switch the discussion from whether abortion was a privacy issue or a woman’s rights issue to whether it is the taking of another life,” Puzder told the St Louis Post-Dispatch in 1989.
The bill slid through the legislature, and was signed into law. Just as they hoped, abortion rights activists challenged the law in court. The law pinged its way through the legal system and in 1989 the supreme court agreed to hear the case, Webster v Reproductive Health Services.
The ruling upholding the law roiled both sides of the culture war over abortion. While the law’s impact on abortion access was relatively muted, it revealed a major vulnerability in Roe that neither side had expected.
On the question of the law’s preamble, the justices found that the court did not need to consider its constitutionality as it was not written to restrict abortion.
In a scathing dissent, Justice Harry Blackmun, who wrote the 5-4 majority opinion in Roe v Wade, said the majority decision in Webster was “filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly”.
And that’s exactly how anti-abortion activists viewed the decision. Clarke Forsythe, acting president of Americans United for Life, and senior counsel, called it a “green light” for states to begin writing laws that chipped away at abortion access and coverage.
“It opened the door more clearly to parental notice legislation, ultrasound legislation, viability testing legislation, preamble laws, laws in which the states affirmatively recognize the personhood,” Forsythe said. “It was a turning point.”
On Wednesday, before Puzder withdrew his nomination, Democrats and liberal groups held a press conference to raise questions about his record on women’s rights, citing his leadership on the Missouri law, among concerns over his opposition to raising the minimum wage, allegations of widespread workplace sexual harassment in his restaurants and criticism of the company’s highly sexualized advertising campaigns.
Vicki Shabo, vice-president at the National Partnership for Women and Families, said on Wednesday that Puzder’s confirmation would be an “outright attack” on women’s and workers’ rights.
Had he been confirmed, Puzder would have joined an administration that is strongly opposed to abortion and has expressly stated its intention to reverse Roe v Wade.
“I think as far as getting people to think about this issue, and getting the court to turn around, it was immensely successful,” Puzder told the Washington Post in 1989, “beyond my wildest dreams.”
