Roe v. Wade: A Legal History

00:21:12
https://www.youtube.com/watch?v=cRAlc0NrlNQ

الملخص

TLDRRoe versus Wade, decis în 1973, este unul dintre cele mai controversate cazuri ale Curții Supreme din SUA, legalizând avortul și stabilindu-l ca un drept fundamental. Decizia a transformat avortul dintr-o crimă într-un drept constituțional, provocând mari dezbateri politice și sociale. Cazul a avut la bază ideea de drept la intimitate, invocând clauza de proces echitabil din amendamentele constituționale. Criticii au subliniat lipsa unui precedent legal solid și au considerat decizia ca fiind un act de putere judiciară "brută", deoarece a anulat legile împotriva avortului din toate statele. Roe versus Wade a avut un impact major, polarizând societatea americană timp de decenii.

الوجبات الجاهزة

  • ⚖️ Roe versus Wade este o decizie majoră a Curții Supreme privind avortul.
  • 📅 Cazul a fost decis pe 22 ianuarie 1973.
  • 🔍 A legalizat avortul ca un drept constituțional în SUA.
  • 🗣️ Decizia a fost considerată controversată și polarizantă.
  • 📜 Bază legală discutabilă, fără un precedent clar.
  • 👨‍⚖️ Decizia a fost 7-2, cu doi judecători disidenți.
  • 👩‍⚕️ Drepturile doctorilor au jucat un rol cheie în decizie.
  • 🔒 A invocat dreptul la intimitate ca bază legală.
  • 🗳️ A influențat politica și societatea americană timp de decenii.
  • 🏛️ A anulat legile împotriva avortului din toate statele SUA.

الجدول الزمني

  • 00:00:00 - 00:05:00

    Roe versus Wade este una dintre cele mai controversate decizii ale Curții Supreme din SUA, fiind un caz care a transformat avortul dintr-o infracțiune în majoritatea statelor într-un drept constituțional, considerat la fel de fundamental ca dreptul la căsătorie sau procreare. Decizia din 22 ianuarie 1973 a fost una istorică, dar și foarte controversată, atât din perspectivă juridică cât și culturală, fiind văzută de unii ca o extensie a dreptului la intimitate care nu este clar stipulat în Constituție.

  • 00:05:00 - 00:10:00

    Argumentul inițial în cazul Roe nu a fost despre dreptul constituțional la avort, ci dacă se poate accesa instanțe federale pentru a face o plângere constituțională federală în timp ce este supus unei urmăriri penale. Avortul a fost normalizat treptat ca subiect de drept constituțional, deși inițial cauza a fost considerată îngustă procedural. Implicarea judecătorului Justiției Rehnquist și a lui Powell a complicat audierile, care au avut loc de două ori și au inclus și cazul Eisenstadt versus Baird, extinzând dreptul la intimitate la persoanele singure.

  • 00:10:00 - 00:15:00

    Întregul concept de drept la intimitate, extins până la decizia de avort, este bazat pe procesul datorat substanțial, care nu este clar stipulat în Roe, dar fundația sa a fost pusă de cazuri anterioare ca Griswold versus Connecticut și Eisenstadt versus Baird. În mod notabil, Roe a extins acest drept dincolo de utilizarea contraceptivelor la decizia privind dreptul de a avea copii, fiind o obligație controversată a Curții de a inventa un drept la avort din cadrul unei dezbateri practice și doctrinare despre intimitate și drepturile persoanei în fața puterii statului.

  • 00:15:00 - 00:21:12

    Decizia Roe, scrisă de judecătorul Blackmun, a introdus cadrul trimestrial pentru a reglementa avortul, balanțând drepturile femeii cu interesele statului în viitoarea viață, permițând avortul în primul trimestru fără restricții majore. Această decizie a galvanizat mișcările opuse și a continuat să alimenteze dezbaterile timp de decenii. În esență, decizia a subliniat dreptul medicilor de a practica medicina fără frica de urmărirea penală, și nu a recunoscut personalitatea fetală, creând un precedent controversat în jurisprudența americană privind drepturile fundamentale.

اعرض المزيد

الخريطة الذهنية

فيديو أسئلة وأجوبة

  • Ce este Roe versus Wade?

    Roe versus Wade este un caz al Curții Supreme din SUA din 1973 care a legalizat avortul, recunoscându-l ca un drept fundamental.

  • Care a fost decizia Curții Supreme în cazul Roe versus Wade?

    Curtea a decis că avortul este un drept constituțional, făcându-l, în mare parte, o problemă privată.

  • De ce Roe versus Wade este considerat controversat?

    Este controversat pentru că a transformat avortul dintr-o crimă într-un drept constituțional, fără un precedent clar, provocând dezbateri politice intense.

  • Cine a fost Jane Roe din cazul Roe versus Wade?

    Jane Roe era pseudonimul lui Norma McCorvey, o femeie din Texas care a rămas însărcinată și dorea să facă avort, dar legile din Texas erau extrem de restrictive.

  • Care au fost argumentele împotriva deciziei Roe versus Wade?

    Argumentele împotriva deciziei susțineau că nu există o bază constituțională clară pentru dreptul la avort și că statele ar trebui să aibă dreptul de a proteja viața fetusului.

  • Ce argumente au fost folosite pentru a legaliza avortul în Roe versus Wade?

    Avortul a fost considerat o chestiune privată, iar principiile constituționale generale interzic guvernului să intervină în astfel de chestiuni.

  • Ce impact a avut Roe versus Wade asupra legislației statelor?

    Decizia a anulat legile interzicând avortul din toate cele 50 de state, fiind considerată o decizie radicală.

  • Cum a fost primită decizia Roe versus Wade în societatea americană?

    Decizia a fost întâmpinată cu controverse și a polarizat opiniile publice, devenind un subiect major în politica americană.

  • Ce legătură are Roe versus Wade cu dreptul la intimitate?

    Decizia s-a bazat pe un drept la intimitate derivat din jurisprudența anterioară, care includea și dreptul la contracepție.

  • Cum a influențat Roe versus Wade dezbaterile privind avortul în SUA?

    Cazul a menținut avortul un subiect polarizant și viu discutat în SUA timp de peste 40 de ani.

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التمرير التلقائي:
  • 00:00:01
    Without question, Roe versus Wade
  • 00:00:03
    is one of the most controversial decisions.
  • 00:00:05
    It's a case, but it's also a symbol.
  • 00:00:07
    It's the only Supreme Court case
  • 00:00:10
    that most Americans can cite by name.
  • 00:00:12
    In a landmark ruling, the Supreme Court today
  • 00:00:15
    legalized abortions.
  • 00:00:19
    Roe is interesting because it did articulate
  • 00:00:22
    the right to abortion as a fundamental right.
  • 00:00:25
    What the Court was saying there was
  • 00:00:28
    this is on par with other sorts of fundamental rights.
  • 00:00:33
    The right to marry, the right to procreate,
  • 00:00:35
    the right to take care of one's children.
  • 00:00:37
    The Court split seven to two
  • 00:00:39
    with Justices Byron White and William Rehnquist dissenting.
  • 00:00:42
    The nine justices made abortion largely a private matter.
  • 00:00:45
    January 22nd, 1973 will be an historic day.
  • 00:00:49
    There's a certain sense in which Roe versus Wade
  • 00:00:51
    was a bolt out of the blue.
  • 00:00:53
    The Supreme Court had never before, even vaguely, suggested
  • 00:00:58
    that restrictions on abortion were constitutionally suspect.
  • 00:01:02
    There's nothing in the history, text, of the Constitution,
  • 00:01:04
    or really of precedent, that would support the decision.
  • 00:01:07
    It took what was, really, a crime
  • 00:01:10
    in most of the states in the United States,
  • 00:01:12
    and in all, at some point, and it turned it,
  • 00:01:15
    overnight, into a constitutional right.
  • 00:01:19
    That cannot help but be controversial.
  • 00:01:30
    Jane Roe was a woman in Texas who was pregnant
  • 00:01:33
    and didn't want to have her baby, but Texas had
  • 00:01:35
    perhaps the strictest, harshest, anti-abortion law
  • 00:01:38
    in the country so that, even if you were a documented victim
  • 00:01:42
    of rape or incest, you still were not allowed
  • 00:01:44
    to have an abortion.
  • 00:01:46
    It had the perfect state of facts,
  • 00:01:48
    even though we now know they were a lie.
  • 00:01:50
    They claimed that Norma McCorvey was raped,
  • 00:01:52
    that was not the case.
  • 00:01:53
    But it seemed to be the most sympathetic possible case.
  • 00:01:56
    There was absolutely no evidentiary record
  • 00:02:00
    from the trial court.
  • 00:02:01
    The case had been disposed of on summary judgment.
  • 00:02:06
    And so all you had were a limited number of affidavits,
  • 00:02:09
    but as far as all of the sort of questions
  • 00:02:11
    that swirl around the public policy concerns,
  • 00:02:14
    there was absolutely no evidentiary record.
  • 00:02:17
    The case was put before a three-judge panel
  • 00:02:20
    of the Federal District Court in Dallas.
  • 00:02:24
    And there was a unanimous decision
  • 00:02:26
    to strike down the Texas law.
  • 00:02:29
    I think the federal court in Texas
  • 00:02:32
    was a little bit concerned about his own jurisdiction
  • 00:02:35
    to issue a statewide injunction.
  • 00:02:38
    And I think they assumed that the Texas legislature would
  • 00:02:44
    realize that the law had become unavailable.
  • 00:02:49
    But before that could play out,
  • 00:02:50
    the plaintiffs immediately took it to the Supreme Court.
  • 00:02:54
    The narrow question that the Court accepted cert on
  • 00:02:58
    was whether or not you could access federal courts
  • 00:03:03
    to make a federal constitutional claim
  • 00:03:05
    while being subjected to criminal prosecution.
  • 00:03:07
    In other words, when a doctor had been accused of
  • 00:03:10
    performing an illegal abortion, could they go into
  • 00:03:13
    federal courts and claim, well, I had
  • 00:03:15
    a federal constitutional right to provide
  • 00:03:18
    these services to this woman.
  • 00:03:19
    Roe was argued twice before the Supreme Court.
  • 00:03:22
    It was argued despite the fact that
  • 00:03:25
    in between accepting the case and arguing the case,
  • 00:03:29
    two justices retired.
  • 00:03:31
    So the Court had a choice to make.
  • 00:03:32
    It ended up being argued by a very young lawyer
  • 00:03:37
    who was basically just out of law school,
  • 00:03:39
    which is unheard of.
  • 00:03:41
    That was pretty extraordinary.
  • 00:03:43
    At least a couple of the justices were deeply committed
  • 00:03:46
    to taking an abortion case and wanted
  • 00:03:49
    the opportunity to address whether there was
  • 00:03:51
    a constitutional right to abortion.
  • 00:03:53
    But the grant for cert was initially very narrow.
  • 00:03:56
    And so, when counsel for Roe attempted to make an argument
  • 00:04:02
    that she had some sort of constitutional right
  • 00:04:04
    to abortion itself, that was cut off pretty quickly
  • 00:04:07
    because that simply wasn't the issue.
  • 00:04:08
    As the drafts of the decision were being prepared,
  • 00:04:13
    President Nixon nominated Justice Rehnquist
  • 00:04:16
    and Justice Powell.
  • 00:04:17
    And so, the thought was that's kind of a big deal,
  • 00:04:20
    and we really should have it argued before a full Court,
  • 00:04:22
    and so it was set up for new argument in the fall of 1972.
  • 00:04:27
    Because of the two arguments, it strung out
  • 00:04:30
    over a long time, because you had two complete
  • 00:04:34
    Supreme Court arguments, two complete sittings.
  • 00:04:36
    People talk about Roe against Wade as if it was
  • 00:04:39
    something unique that dropped from the sky,
  • 00:04:41
    dropped from the Supreme Court.
  • 00:04:43
    But actually Roe was just the case
  • 00:04:45
    that happened to get there first.
  • 00:04:46
    But the lower courts were split.
  • 00:04:48
    The split wasn't so much about whether the woman had
  • 00:04:52
    a right to make decisions regarding abortion,
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    but whether that right could be restricted
  • 00:04:58
    because what was at stake was the life of unborn children.
  • 00:05:01
    Roe ended up being a case that had
  • 00:05:04
    a lot of compelling facts to it.
  • 00:05:08
    And it got there faster.
  • 00:05:10
    Until 1973,
  • 00:05:13
    the idea that abortion was
  • 00:05:16
    something women had a constitutional right to,
  • 00:05:18
    and that states had no authority to restrict
  • 00:05:21
    was really an odd idea.
  • 00:05:25
    That narrow procedural question got transmuted,
  • 00:05:29
    through the two years while the case was in process,
  • 00:05:32
    to the broader question of whether there was a
  • 00:05:34
    constitutional right to abortion.
  • 00:05:39
    (film ticks)
  • 00:05:40
    By the time Roe v. Wade came down,
  • 00:05:42
    she'd actually already had the baby.
  • 00:05:44
    So, the reason the case continued was because
  • 00:05:46
    there was a desire, both by litigants and
  • 00:05:48
    by the Supreme Court, to address the issue,
  • 00:05:50
    not because there was a individual pressing case
  • 00:05:52
    that someone brought.
  • 00:05:53
    The first argument was in the winter of 1971,
  • 00:05:57
    but two justices had suddenly died prior to that argument
  • 00:06:01
    so they were short on the bench.
  • 00:06:03
    They have the oral argument in Roe,
  • 00:06:04
    shortly after, they have the oral argument in
  • 00:06:07
    a case called Eisenstadt versus Baird,
  • 00:06:10
    which was about extending the right to use contraception
  • 00:06:14
    beyond married couples to single people.
  • 00:06:18
    The right to privacy, as invented by the Supreme Court,
  • 00:06:23
    is the absolute foundation for
  • 00:06:26
    the modern jurisprudence on abortion.
  • 00:06:36
    Privacy is a bit of a lightning rod
  • 00:06:38
    and had been a bit of a lightning rod
  • 00:06:39
    because it is not clearly established in the Constitution.
  • 00:06:43
    In fact, there's no references to privacy
  • 00:06:46
    of the sort that would remotely
  • 00:06:48
    have to do with contraception or other
  • 00:06:50
    public morals laws of that nature.
  • 00:06:52
    Substantive due process is not actually described in Roe.
  • 00:06:56
    It's invoked. It's the underlying doctrine
  • 00:07:01
    that gives us the right to privacy.
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    So, the Fourteenth Amendment has a Due Process Clause,
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    as does the Fifth Amendment.
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    The Fifth Amendment applies to the federal government,
  • 00:07:09
    the Fourteenth to the states.
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    And it says that "no state shall deprive any person
  • 00:07:14
    of life, liberty, or property without due process of law."
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    And, basically, substantive due process says that
  • 00:07:21
    there are some rights that are sufficiently important
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    that the legislature can't take them away, uh, arbitrarily
  • 00:07:29
    without violating the Due Process Clause.
  • 00:07:31
    Locational privacy is clearly
  • 00:07:34
    in the text of the Constitution.
  • 00:07:35
    And, I think it's fair to say, freedom of thought
  • 00:07:38
    has a privacy element.
  • 00:07:40
    Then we move to this decisional privacy,
  • 00:07:43
    which is the right to make decisions without
  • 00:07:46
    the government directing the outcome of
  • 00:07:48
    the decision-making process.
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    And then we get to the right to act on the decision,
  • 00:07:53
    regardless of the community's beliefs that
  • 00:07:58
    that action is contrary to the public good
  • 00:08:02
    or contrary to what we would call state interests.
  • 00:08:05
    The first opinion to suggest there's a fundamental right
  • 00:08:09
    to privacy was Griswold versus Connecticut,
  • 00:08:12
    which was a 1965 case holding that
  • 00:08:16
    married couples have a right to use contraception
  • 00:08:18
    with a doctor's prescription, contrary to a Connecticut law
  • 00:08:21
    that banned such contraceptive uses.
  • 00:08:23
    It's a violation of a right to privacy,
  • 00:08:25
    it's a violation of substantive due process,
  • 00:08:29
    because this is the kind of intimate decision,
  • 00:08:31
    no different from who you marry,
  • 00:08:33
    or whether you have children,
  • 00:08:35
    or how you raise your children,
  • 00:08:36
    that should be given to the individual
  • 00:08:39
    and the state shouldn't be able to interfere with that.
  • 00:08:44
    Where did the Court purport to find this right
  • 00:08:47
    to marital privacy which includes a right to contraceptives?
  • 00:08:51
    Well, since the Court couldn't find it in the text,
  • 00:08:55
    the majority said that they found it in
  • 00:08:57
    "penumbras formed by emanations"
  • 00:09:00
    of various constitutional guarantees.
  • 00:09:03
    Unsurprisingly, what followed was a case that said,
  • 00:09:05
    well, why should only married people
  • 00:09:07
    have a right to access contraception?
  • 00:09:08
    Single people should have that right as well.
  • 00:09:10
    And that was Eisenstadt versus Baird.
  • 00:09:13
    Eisenstadt laid a far firmer foundation,
  • 00:09:17
    at least rhetorically, for the court to sit on in Roe.
  • 00:09:20
    Griswold versus Connecticut opinion had said that
  • 00:09:23
    married couples have a right of privacy
  • 00:09:25
    that inheres in marriage.
  • 00:09:26
    And that is in the marital bedroom.
  • 00:09:28
    These are sacred places;
  • 00:09:29
    you don't interfere with this, the state.
  • 00:09:32
    Eisenstadt said, you know,
  • 00:09:34
    we're not going to use that "penumbras and emanations"
  • 00:09:38
    of other elements of the Bill of Rights.
  • 00:09:40
    There was a constitutional right for people
  • 00:09:42
    to make decisions that are very, very important to them.
  • 00:09:45
    We call this a right of privacy.
  • 00:09:47
    So what you have is a situation where
  • 00:09:49
    what seemed to be a limited right to privacy in Griswold
  • 00:09:52
    that only applied to marital relationships
  • 00:09:55
    now applies to all relationships.
  • 00:09:59
    And then the next step in Roe is to suggest that,
  • 00:10:04
    rather than only applying to contraceptives,
  • 00:10:08
    that applies more generally to the right of
  • 00:10:10
    whether you want to have children or not.
  • 00:10:12
    The Court, having heard Eisenstadt in between
  • 00:10:15
    the two arguments and having decided it, can now say
  • 00:10:19
    well, don't you see, we've just announced
  • 00:10:21
    a substantive due process right of privacy about matters
  • 00:10:26
    so fundamental as the right to decide whether to bear
  • 00:10:29
    or beget a child, and, gee, abortion is about
  • 00:10:32
    the decision whether or not to bear or beget a child.
  • 00:10:34
    Fits perfectly.
  • 00:10:37
    There was a practical reason for the re-argument,
  • 00:10:39
    but it ended up suiting the decision to invent
  • 00:10:44
    a right to abortion, to a T.
  • 00:10:47
    The arguments in favor of Roe versus Wade,
  • 00:10:50
    which finally persuaded the justices,
  • 00:10:52
    were that abortion is a purely private matter.
  • 00:10:56
    And when matters are purely private,
  • 00:10:59
    general constitutional principles forbid the government
  • 00:11:02
    from intruding into them.
  • 00:11:04
    The state of Texas responded that, in fact,
  • 00:11:08
    there was no basis in the Constitution itself
  • 00:11:12
    for a right to abortion, that a state government
  • 00:11:15
    had regulated abortion either through the common law crimes
  • 00:11:20
    or, at least beginning in 1832, through statutory crime.
  • 00:11:24
    To suggest that the Fourteenth Amendment included some sort of
  • 00:11:29
    protection against prohibition of abortion,
  • 00:11:32
    simply disregarded the historical record.
  • 00:11:34
    Instead of making a relatively limited argument, uh,
  • 00:11:36
    about the state's ability to regulate abortion,
  • 00:11:39
    they say that states must regulate abortion,
  • 00:11:41
    which no court, in the United States at least,
  • 00:11:43
    has ever held to be the case.
  • 00:11:44
    That was kind of a surprising argument in retrospect.
  • 00:11:48
    So for Texas, it was really a states' rights issue.
  • 00:11:51
    And it was also an issue about the obligation
  • 00:11:55
    that we usually say the state has to protect
  • 00:11:57
    people who can't protect themselves.
  • 00:11:59
    Roe versus Wade seems crafted
  • 00:12:02
    to stoke the debate on abortion.
  • 00:12:05
    Its analysis of the right of privacy
  • 00:12:09
    is controversial in the first place.
  • 00:12:11
    Is there such a thing as a right of privacy?
  • 00:12:14
    Its extension of it to abortion.
  • 00:12:17
    Roe said, we are not deciding
  • 00:12:22
    questions about the value of life before birth,
  • 00:12:25
    but it did.
  • 00:12:32
    When the opinion was issued,
  • 00:12:35
    there was big news that day, Lyndon Johnson died.
  • 00:12:38
    So, I'm not sure that the opinion was actually page one news
  • 00:12:42
    in every newspaper in the country.
  • 00:12:44
    It wasn't the sort of spectacle that we witness today
  • 00:12:47
    with people standing on the steps of the Supreme Court
  • 00:12:49
    shouting and waving flags, ready to speak to the media
  • 00:12:52
    the minute they've read the first four paragraphs
  • 00:12:54
    of the Court's syllabus.
  • 00:12:56
    I'm quite confident that they thought that
  • 00:12:58
    abortion would be kind of integrated into American life
  • 00:13:02
    and become acceptable and disappear as
  • 00:13:04
    a divisive political issue.
  • 00:13:06
    It had exactly the opposite effect.
  • 00:13:13
    So, Chief Justice Burger assigned Justice Blackmun
  • 00:13:17
    to write the opinion.
  • 00:13:18
    Justice Blackmun, when he was appointed to
  • 00:13:21
    the Supreme Court, was considered to be
  • 00:13:23
    a conservative judge from Minnesota.
  • 00:13:25
    He had been counsel to the American Medical Association.
  • 00:13:28
    To work on the Roe opinion, he spent some time
  • 00:13:30
    up in the Mayo Clinic Library.
  • 00:13:32
    He'd been general counsel at the Mayo Clinic.
  • 00:13:35
    He was very tied into the medical profession
  • 00:13:38
    and all of these elite groups said it was time to
  • 00:13:41
    get rid of the regime of criminal abortion laws.
  • 00:13:44
    And so, I think that Justices as citizens
  • 00:13:47
    share that feeling.
  • 00:13:48
    The entire beginning, essentially, of
  • 00:13:50
    the Blackmun opinion is all about history and medicine.
  • 00:13:54
    And it's about when abortion became illegal
  • 00:13:56
    in the United States,
  • 00:13:57
    what were the forces that led to that?
  • 00:14:00
    Doctors were very involved in the efforts
  • 00:14:04
    in the mid to late 19th century in criminalizing abortion.
  • 00:14:08
    And it was always seen as a doctor's issue.
  • 00:14:12
    And so, the American Medical Association itself, uh,
  • 00:14:16
    took the position that it was something
  • 00:14:18
    that doctors should not do.
  • 00:14:20
    The Court avoided entirely the fact that
  • 00:14:23
    states had banned abortion on the grounds that
  • 00:14:26
    they were interested in children's lives.
  • 00:14:28
    They claimed that the laws banned abortion because
  • 00:14:32
    greedy doctors wanted a monopoly on the practice of medicine
  • 00:14:39
    and abortion was being done by unlicensed or
  • 00:14:41
    midwife, uh, practitioners and the doctors wanted
  • 00:14:45
    to reign in and have control of the medical profession.
  • 00:14:47
    It seems a bit paternalistic, uh, to us nowadays
  • 00:14:51
    to focus on the doctor-patient relationship
  • 00:14:53
    rather than on the woman's own right,
  • 00:14:55
    but if you read the opinion, and we have to remember,
  • 00:14:57
    at the time, doctors were really, really well-respected
  • 00:15:00
    in American culture, so, focusing on the fact that
  • 00:15:03
    a woman is doing this in consultation with her doctor,
  • 00:15:06
    I think, at least, Justice Blackmun thought,
  • 00:15:08
    lent some intellectual and cultural heft to the opinion.
  • 00:15:12
    It's not really a decision about the rights of women,
  • 00:15:15
    it's a decision about the rights of doctors,
  • 00:15:17
    because doctors were the only ones who faced prosecution
  • 00:15:20
    for performing an illegal abortion.
  • 00:15:22
    And it's really a case about the right of doctors
  • 00:15:25
    to practice medicine as they saw fit on behalf of
  • 00:15:29
    their patients without risking criminal prosecution.
  • 00:15:33
    And from there, he starts to go into this evaluation
  • 00:15:36
    of what is at stake here, um,
  • 00:15:39
    and that's where we get these two sides of the coin.
  • 00:15:41
    One is women being able to make decisions about when
  • 00:15:44
    and if they become pregnant and carry a pregnancy to term;
  • 00:15:48
    on the other side, the state having interest in
  • 00:15:51
    potential life, and then how we balance those things.
  • 00:15:54
    And the way he figures to balance those things is
  • 00:15:58
    through this idea of the trimester framework.
  • 00:16:02
    In the first trimester, when abortion was relatively safe,
  • 00:16:05
    states could have no regulation really whatsoever.
  • 00:16:09
    In the second trimester, when abortions became
  • 00:16:11
    more dangerous, they could have regulations
  • 00:16:14
    that were directed to protecting the mother's
  • 00:16:18
    health and safety.
  • 00:16:19
    In the third trimester, many people think
  • 00:16:21
    abortion is banned, but what the court said is
  • 00:16:24
    states could ban it "except for life and health reasons,"
  • 00:16:27
    but then defined health to include all factors,
  • 00:16:31
    physical, psychological, familial,
  • 00:16:34
    or the woman's age,
  • 00:16:35
    relevant to the well-being of the patient.
  • 00:16:38
    So, in other words, abortion, at all times, for all reasons,
  • 00:16:42
    with no limits whatsoever.
  • 00:16:44
    Roe basically creates a floor.
  • 00:16:46
    You can't go below this, right?
  • 00:16:48
    So you can't completely outlaw abortion services.
  • 00:16:51
    You can regulate in really significant ways,
  • 00:16:54
    you can make it harder for women to access,
  • 00:16:56
    but you cannot make it completely illegal.
  • 00:17:00
    There is not a recognition of fetal personhood.
  • 00:17:04
    Although the state does have an interest in unborn life,
  • 00:17:09
    that interest doesn't sufficiently come into play
  • 00:17:13
    to outweigh the woman's choice until
  • 00:17:16
    the fetus would be viable outside the womb.
  • 00:17:19
    So when the US Supreme Court decided Roe,
  • 00:17:21
    and they talked about Roe as a fundamental right,
  • 00:17:24
    that was really important because
  • 00:17:25
    the fundamental rights analysis is
  • 00:17:27
    a strict scrutiny analysis.
  • 00:17:29
    And so it requires the state have a compelling
  • 00:17:31
    state interest, and that they regulate in a way that's
  • 00:17:34
    narrowly-tailored to achieve that compelling state interest.
  • 00:17:38
    The state of Texas argued that abortion laws were directed
  • 00:17:42
    at protecting women's health,
  • 00:17:44
    that abortion could have longterm ill-effects to women,
  • 00:17:48
    but more importantly, they argued that
  • 00:17:50
    abortion was intended to protect both
  • 00:17:53
    the mother and the child. That there was a child
  • 00:17:57
    from the moment of conception,
  • 00:17:59
    and that that child was worthy of legal protection,
  • 00:18:01
    just like any other child.
  • 00:18:03
    Yes. States were concerned about the lack of safety
  • 00:18:06
    of abortion, but they were actually very, very concerned
  • 00:18:09
    about not killing life that is human, that is vulnerable,
  • 00:18:14
    and that has no one else to take care of it.
  • 00:18:17
    Justice Blackmun says there's never been
  • 00:18:19
    a concept of fetal personhood in the law.
  • 00:18:23
    He looks back at all the cases having to do with
  • 00:18:26
    the right to privacy and he said we look at
  • 00:18:28
    all of these together and we find
  • 00:18:32
    we have adopted a view of a right to privacy
  • 00:18:36
    that is broad enough to cover a woman's decision
  • 00:18:39
    whether or not to continue a pregnancy.
  • 00:18:42
    I think the Roe decision has proven to be
  • 00:18:45
    a deep wound in the body politic.
  • 00:18:48
    The Court took upon itself an issue that was
  • 00:18:50
    being addressed throughout the country,
  • 00:18:52
    with vigorous advocacy on both sides,
  • 00:18:55
    and finding some success, for good or for ill,
  • 00:18:58
    by the change of laws throughout the country
  • 00:19:01
    in a way that there's no textual basis.
  • 00:19:04
    It overturned the laws of all 50 states,
  • 00:19:06
    so it was pretty radical.
  • 00:19:07
    There was no even real buildup, but I think people who
  • 00:19:09
    are philosophically opposed to abortion feel
  • 00:19:12
    the Supreme Court decided that they have nowhere to go
  • 00:19:15
    in the democratic process, that their views are
  • 00:19:17
    just not valuable.
  • 00:19:19
    And that really angered people and galvanized the movement.
  • 00:19:22
    The Court anchored Roe in precedents of the time,
  • 00:19:26
    particularly in the precedent from 1965
  • 00:19:29
    that had established a right to use contraception.
  • 00:19:32
    All of those cases come out of an understanding
  • 00:19:35
    of the Fourteenth Amendment protection for due process.
  • 00:19:39
    And that's something that's been with us
  • 00:19:40
    for quite a long time.
  • 00:19:41
    The Court doesn't go around finding fundamental,
  • 00:19:46
    or even strong, constitutional rights every day,
  • 00:19:50
    or every year, even.
  • 00:19:51
    If we, in fact, believe, and I do believe,
  • 00:19:54
    that the right to terminate a pregnancy is one
  • 00:19:57
    that should exist in our constitutional order,
  • 00:20:00
    then I think it should be federally protected.
  • 00:20:03
    The fact that the Supreme Court decision created
  • 00:20:06
    the basic right, I think was really important.
  • 00:20:09
    It ensured that this debate would continue for 40 plus,
  • 00:20:15
    now getting on for 50, years.
  • 00:20:17
    Whatever the policy should be,
  • 00:20:19
    the Constitution didn't settle it.
  • 00:20:21
    And the Court was wrong to impose a particular policy.
  • 00:20:24
    When people think back on it, they'll think back
  • 00:20:27
    to that phrase from Justice White's dissent:
  • 00:20:31
    Roe was an act "of raw judicial power."
الوسوم
  • Roe versus Wade
  • Curtea Supremă
  • dreptul la avort
  • drept constituțional
  • controversă
  • intimitate
  • jurisprudență
  • drepturi fundamentale
  • politică americană
  • Roe v. Wade