- [Kim] Hi, this is Kim from Khan Academy.
Today you are Roe versus Wade, the 1973 Supreme Court
case that ruled that the right of privacy
extends to a woman's decision to have an abortion.
To learn more about Roe versus Wade,
I spoke to two experts on the case.
Clarke Forsythe is Senior Counsel for Americans
United for Life and the author of Abuse of Discretion:
The Inside Story of Roe V. Wade.
Melissa Murray is the Alexander F. and May T. Morrison
Professor of Law at Berkeley Law School,
where she also serves as the Faculty Director
for the Center for Reproductive Rights and Justice.
Mr. Forsythe, could you set the stage for us a little bit.
What was going on at this time period?
- [Clarke] Well, there were efforts in the 1960s
to repeal abortion laws in the states
and when abortion activists were dissatisfied
with those efforts, they decided to go into the courts.
And around 1969, they took some cases into the courts
and ultimately, there were 20 or more cases
challenging state laws in the courts
between 1969 and 1973 and Roe versus Wade
was the case from Texas.
- [Melissa] Roe was litigated in the early 1970s.
It was a period of enormous change in the United States.
We were beginning to see beginnings of the women's
rights movements, the beginning of the gay rights
movement, and of course, the civil rights movement
of the 1960s was moving in a lot of different directions.
At the time, the question of abortion was very much
on the minds of lots of different state legislatures
because there had been moves to liberalize
much of the criminal law that dealt
with matters of sex and sexuality, including abortion.
At the time, four states, New York, Alaska,
Hawaii, and I believe Washington, had actually
taken steps to repeal their laws criminalizing abortion.
And about 13 other states had taken efforts
to liberalize their laws criminalizing abortions,
but in number of other states, around,
at least 20 or more, there remained on the books,
laws that absolutely criminalized abortion,
except in situations where it would be necessary
to preserve the woman's health or life,
or in cases of rape, incest, or fetal anomaly.
- [Clarke] Abortion rights attorneys sought
plaintiffs who could challenge the Texas law
and the Georgia law.
There were two attorneys from Texas
who found Norma McCorvey, who they gave the pseudonym
of Jane Roe, for purposes of protecting her privacy.
And she became the nominal plaintiff.
- [Melissa] And so Norma McCorvey brought this case.
She was a 22 year old woman living in Dallas County, Texas,
who found herself pregnant for the third time.
She was unmarried, her first child had been born,
a daughter, and she had ultimately signed
over custody of her daughter to her mother to raise,
because she was having a bit of itinerant life,
was unable to take care of her child.
The second child that she bore, she gave up for adoption.
And so when she found herself pregnant
for a third time, she wasn't willing to do
either of these things again and wanted to safely
and legally terminate her pregnancy.
But this was impossible under the Texas law.
Texas had, since the 19th century absolutely
criminalized abortion except in cases
where it was necessary for the health
and safety of the mother.
And so she then was faced with the question
of what was she going to do.
And the only thing she could think to do then,
was to actually challenge the law.
So she was put in contact with Sarah Weddington
and Linda Coffee, two young women who had
recently graduated from law school.
Sarah Weddington was only 26 years old
at the time she helped Norma McCorvey bring this case.
But they decided to sue the State of Texas
to challenge the constitutionality
of Texas' criminal abortion ban.
- [Clarke] But as the history shows,
there was no trial, there was no evidence,
there were no expert witnesses.
Jane Roe never testified.
As you know, she never got an abortion.
She gave birth and placed her child for adoption.
- [Kim] Okay, so Roe was Norma McCorvey, who was Wade?
- [Clarke] Henry Wade was the District Attorney
for Dallas, Texas, where the case was filed
in Federal District Court.
- [Kim] So this case, I assume kind of wends
it's way through the courts and how did
the Supreme Court rule?
- [Clarke] The Justices declared the Texas and Georgia
laws unconstitutional and then rewrote
a national law, a national abortion law,
in which they said that the states could
not regulate or limit abortion in the first trimester.
They could regulate more in the second trimester,
the second three months of pregnancy,
to protect maternal health and they could regulate
in the last three months of pregnancy, the last trimester,
to protect maternal health or fetal life.
The attorneys for the plaintiffs claimed
that abortion fell within the right to privacy,
even though privacy is not in the text
of the Constitution, they said it was derived,
or based in the language of the 14th amendment
of the Constitution even though the 14th amendment
doesn't say anything about abortion,
or the unborn child, it just uses the term liberty.
And ultimately the Court said that the right
to abortion is part of the right to privacy
based on the 14th amendment.
- [Kim] That's very interesting.
So I've learned through many of these interviews,
that this right to privacy is something
that is never actually explicitly stated
throughout the Bill of Rights, but there's a penumbra
of privacy that you see in a few ways.
What was the Court's reasoning that it was abortion
that could fall under this zone of privacy?
- [Clarke] If you read the Roe opinion,
on page 152 of the Roe opinion, Justice Blackmun
starts out by saying that, he cites a string
of cases since about 1910, a string
of Supreme Court cases and says that these lead
to the right of privacy and we think abortion,
or that the right of privacy is broad enough
to encompass abortion.
But then four pages later, on page 156,
Blackmun turns around and says, but abortion
because it involves the taking of a life,
is inherently different from all those other cases
that make up the right of privacy.
- [Melissa] So the right of privacy doesn't
actually come from Roe versus Wade,
it comes from a case decided about eight years earlier,
in 1965 called, Griswold versus Connecticut.
In Griswold, at issue was a Connecticut state statute
that made it a crime to use contraception
or even to counsel patients about contraception.
Planned Parenthood League of Connecticut opened up
a birth control clinic in New Haven, Connecticut.
They were promptly arrested and the clinic
was closed and then they were able to bring this case.
And they argued that the right to be able
to use contraception was the right of the individual.
The right of the doctor to advise patients
about contraception was also an individual right.
And the Court, in an opinion authored
by William O. Douglas agrees with them.
And the Court articulates for the first time
this right of privacy and this is a right
that the majority in Griswold says is actually
been percolating in the Court's decisions for some time.
- [Kim] Did any of the Justices dissent
in the Roe decision and if so, why?
- [Clarke] Well there were two dissents
by Justice White and by Justice Rehnquist
and Justice White said that the Court
was engaging in raw judicial power
and that the Justices did not have the right
or the authority to strike down the abortion laws
of the States and could not rely upon
a doctrine called, substantive due process.
Justice Rehnquist said that there is clear historical
evidence that many states passed abortion limits
and prohibitions precisely at the time
of the framing of the 14th amendment in the 1860s
leading up to 1868 and that the evidentiary
history, this history of state limits
and prohibitions on abortion contradicted
any proposition that the 14th amendment
was intended to include a right to abortion
and that was kind of the heart of his dissent.
- [Kim] So Roe was not the last word
on abortion in the United States.
There have been several later cases
that were important to this as well,
like Planned Parenthood versus Casey,
or Whole Woman's Health versus Hellerstedt.
Can you talk a little bit about how those cases
have altered the scope of the right to abortion?
- [Melissa] As soon as Roe is decided in 1973,
there is an effort to sort of roll it back
and hem it in a little bit.
Frank Church, who's a Senator from Idaho,
announces the Church amendment, which basically says
that physicians don't have to perform abortions
if doing so would conflict with their conscience
or conscientious beliefs.
So, again, that's one opportunity to sort of limit
the reach of this right, by limiting the number
of providers who are available to offer abortions.
- [Clarke] In fact the Court has kind of cut back
on Roe versus Wade in four cases over the years.
Harris versus McRae involving abortion funding.
Planned Parenthood versus Casey and in other cases,
they've given more deference to the states,
allowed the states to pass more and more limits
at least around the margins, even though they've
continued holding to the basic right
that Roe created, that there was a right to abortion
for virtually any reason, at any time of pregnancy.
That's still the scope of the right,
but they've allowed marginal regulations,
like limits on public funding, parental notice
and consent, informed consent laws.
But then the Court flip flopped in 2016,
in June of 2016 in Whole Woman's Health versus Hellerstedt.
- [Melissa] The case makes its way to the Supreme Court
and in an opinion that's authored
by Justice Stephen Breyer and it's only an eight
person Court because Justice Scalia passes away
in February of 2016, so just eight people on the Court.
In this decision, it's a five to three decision,
Justice Stephen Breyer notes that the provisions
that were challenged do not offer
the medical benefits that they claimed to offer,
sufficient to justify the burdens on access
that each of those provisions imposes.
- [Kim] What do you see as the future of Roe versus Wade?
- [Clarke] Well, the Court has failed
as the national abortion control board.
It can not monitor abortion.
It can't intervene, it can't regulate
or legislate itself, it can't act
as public health administrators
It can't investigate and I believe it's absolutely
certain that the Court, sooner or later,
will have to overturn the Roe versus Wade decision
because of this failure and return the issue
to the states.
- [Melissa] When we are talking about repealing
or reforming these laws in the 1960s and 70s,
it's also around a social movement
where one of the critical questions is,
what will be the role of women going forth
in a modern society.
When the questions of contraception
come before the Court, one of the questions is
whether women will be allowed to choose
when and how to have children, whether they can
space the timing of births to accommodate careers.
It's the same issue that comes up in abortion,
like this allowing women freedom to be able
to go into the workforce, to determine
when and how they will become mothers.
And so, it's not surprising that the same questions
that arose in 19th century about the place
of women, about what happens in a society
that's undergoing change, whether its immigration
or changes in the demography of the country,
are also coming up in the 1960s and 1970s
at a time of incredible social change.
And I think abortion and these rights involving
a woman's role really do come to the fore
and are incredibly controversial.
- [Kim] So we've learned that the decision
to legalize abortion in Roe versus Wade
was based on the right of privacy,
which the court has inferred from the due process
clause of the 14th amendment.
Since the Roe decision, a number of other cases
have set limits on abortion and abortion clinics.
Clarke Forsythe argues that the Supreme Court
has failed in regulating abortion
and that the issue should be returned to the states.
Melissa Murray, by contrast, suggests
that the decision in Roe is crucial to giving women
the freedom to join the workforce
and make decisions about when to have children.
To learn more about his case,
visit the National Constitution Center's
Interactive Constitution and Khan Academy's
resources on US Government and Politics.