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.
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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.
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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.
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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,
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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,
00:04:55
but whether that right could be restricted
00:04:58
because what was at stake was
the life of unborn children.
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Roe ended up being a case that had
00:05:04
a lot of compelling facts to it.
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And it got there faster.
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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.
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(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.
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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.
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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.
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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.
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It's invoked. It's
the underlying doctrine
00:07:01
that gives us the right to privacy.
00:07:04
So, the Fourteenth Amendment
has a Due Process Clause,
00:07:06
as does the Fifth Amendment.
00:07:08
The Fifth Amendment applies
to the federal government,
00:07:09
the Fourteenth to the states.
00:07:11
And it says that "no state
shall deprive any person
00:07:14
of life, liberty, or property
without due process of law."
00:07:17
And, basically, substantive
due process says that
00:07:21
there are some rights that
are sufficiently important
00:07:25
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.
00:07:50
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,
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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.
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It's a violation of a right to privacy,
00:08:25
it's a violation of
substantive due process,
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because this is the kind
of intimate decision,
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no different from who you marry,
00:08:33
or whether you have children,
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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?
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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.
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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.
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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."
