Earnest miranda number 18 the rule against weight. Quite often, and many of our famous decisions are ones that the court took that were quite unpopular. Let us go through a few places that illustrate very dramatically and visually, what it means to live any society of 310 million different people who helped stick together because they believed in the rule of law. Good evening and welcome to cspans landmark cases. Tonight, the 12th and final in our history series. The 1973 roe v. Wade decision, a decision that has continued to rock american Political Landscape 40 years plus after the decision was made. We will learn more about that in the next 90 minutes. First we will start with the cbs evening news report on the night the decision was announced. Lets watch. Good evening, the landmark ruling the Supreme Court today legalized abortions. The cases from texas and your must set the decision to end the pregnancy during the first three months belongs to the woman and her doctor, not the government. Thus, the anti abortion laws of 46 states were rendered unconstitutional. To raise the dignity rule and give her freedom of choice in this area. This extraordinary event. I think the judgment of the court will do a great deal to tear down the respect previously according human life in our culture. The debate which began that day continues until today. We will learn more about the history of this court and the case of what led to the court making the decisions and the effects on society. Let me introduce our guests. Melissa murray teaches law at the university of berkeley. Welcome to our series. Clarke forsythe wrote the book on roe v. Wade. It is called abusive discretion, inside the story of row view wait. Thanks for being with us. Let us start with the very brief overview on why this is a landmark case and what the constitutional issues were by the court for both of you. It is obviously very controversial. The decision decriminalized abortion throughout the United States here to for. Most of the states in the United States made abortion a crime. Meaning anyone wishing to terminate her pregnancy had to go to one of the handful of states that did permitted or leave the country entirely, which someone ended. The fact that the court made that sweeping decision was an amazing kind of thing in 1973. It was sweeping in its scope and sweeping and its view of the democratic process of what was happening on the ground and the states court feeling that it needed to intervene. It was a sweeping decision in so far that it swept away all the laws in all 50 states on abortion and it created a Public Health vacuum. There were no abortion laws left on the books of any kind. Health and safety regulations. But it also suggested finality. The New York Times, as you know, came out on the 23rd and said the court has settled the issue, and the irony is, it has done nothing like settle the issue. For 42 years, it has just been an engine of controversy as a number of scholars have said. It was a sweeping decision. It isolated the u. S. As one of only four nations of 195 across the globe that allowed abortion for any reason after a fetal liability, and it has not settled the issue at all. These programs have been interesting, because if your participation, and if youre new to the series, heres how you do. It we have a twitter feed. If you are wanting to join us by twitter, please use the hashtag landmark cases. Theres a robust discussion underway on our facebook page. You will find it on the video there and you can join that commentary. Finally, we have two phone lines divided geographically, and we will put the phone numbers up for the next 15 minutes or so. We will go to calls in about 25 minutes past the hour. Lets do the Historical Context of the 19 sixties and seventies and what was happening in this country societal in regards to abortion legislation, the womens Rights Movement and the backdrop for the court taking this on. It was kind of a perfect storm of different events. On one hand, you have the womens Rights Movement gathering steam, the idea of women taking a more public role. There is also a very Strong Movement within the criminal law to decriminalize and areas of intimate light that individuals felt the government had no business interfering in. The law was very much a hot ride at the time. The American Law Institute got involved with the penal code project that decriminalized laws on prohibiting consensual sex, prohibiting adultery and abortion was one of the topics that it took on as well. There was an effort to liberalize abortion with the a l i. We have the map on screen and the various abortion laws. Let me put that on screen to show the states where it was legal. It was a limited number of four states where it was legal. Can you talk about the state legislatures and how theyre approaches to this question very . Up until 1967 or so, virtually every state except for two or three or four prohibited abortion except in the life of the mother. And some ways, they limited it. In 1967 for about four years, there were four years of state legislative session in which the states started to enact exceptions to the traditional prohibition. In 1970, that legislative reform seemingly comes to an end. Because in 71 and 72, two years before the decisions, no state had legalized abortion by legislation, and so the reform effort really seemed to come to an end after four years. Why was that . Well, i think it was because opposition in Public Opinion and and social reform movements had grown between 67 and 70 and and 71 and 72, abortion activists recognized that they did not win anything in the state legislatures. Our producers have put together a video that tries to capture the womens Rights Movements of that time. Were going to look at that next. Its just a little over a minute long, and we will come back and talk about what is happening in society. [chanting] the majority of american women are working outside, but most of them are working at low pay, relatively low and they are in a dead and from a professional vantage point. I am very happy housewife and mother. I feel i have so many things to do with my daughter. Obviously its a concern for all women. All women face the problem of forced childbearing, sterilization and limited access to contraception. We are sisters. Free ourselves. For the young people in our audience we who have been watching the series, high school and college, we try to capture a little bit about what was happening. The video is really pull you really see a generational shift. Women who four years have taken on a very traditional feminine roll. Wife, mother, betty for dan who rallied against the traditional role. Then younger women were clambering for more options. More options and employment, education, and understood reproductive control essential to their opportunities. What can you at orange about that time period . The history is actually that the feminist movement and the feminist leaders came late to push for abortion. The push for abortion started in the 19 fifties from doctors and population control movements, organizations, that want to abortion for population control. Rockefeller was a big funder of population control in the fifties and sixties. The feminist leaders did not come on board until 1968 and 1969. They relate to the reform socalled abortion reform movement, but of course once it came on, they certainly pushed the issue very hard in the early 19 seventies. Two or three years leading up to the Supreme Courts decision. What was happening in congress at this time, regarding these issues . Population control was a big national issue. Even Richard Nixon who was elected president in 1968, six months after he became president in july of 1969, gives a National Speech about population control, and he appoints a national commission, which happens to come out with a report endorsing population abortion for population control in march of 1972. Just as blackmon is writing his first draft of his opinion in roe v. Wade. We will move to understanding the women who brought this case to the Supreme Court. Before we do, you are talking about the 50 states. This was a texas law. Would you explain the texas law that was being contested . The texas law was one of the 30 or 40 that had prohibited abortion. Although there had been debates and Texas Legislature as there were across the states, texas retained its traditional prohibition up until the time the case was filed. The case has the name roe v. Wade, but roe wade, but roe was a pseudonym. Melissa jane roe was norma jean the cowdrey. She was a young woman married to a man who was some years older. She was already a mother of two children when she found herself pregnant. The marriage was troubled, often abusive, and she sought to terminate her pregnancy. She wasnt able to in texas. She passed the point of liability, and she tried to say she had been the victim of a rape. There was no Police Report documenting, thats why she was not able to take advantage of the loophole in the texas law that permitted abortion in certain limited cases such as rape. She found herself going to henry, and adoption and abortion lawyer to make arrangements for an adoption, to make arrangements for an adoption. Nicholas key was friends with a woman who is thinking a filing a case that was in need of a dallas based plaintiff. The rest is history. Norma mccorvey is described as a dallas carnival worker. She herself, it was said years later, that she had no real understanding of the legal system and thought this case would be settled in time for her to get permission to have the abortion. Of course, courts do not usually work that quickly. How did she proceed and the legal system, and would you walk us through the process for her and when she decided to sign up for a legal approach to the question and how she worked her way through the state court . This case was actually one of 20 that were in the courts, but in this particular case she got pregnant in the summer 69. She actually gave birth at about the time her case was in federal court. Sometime in january or march of 1970. She was connected with her cocounsels two of them filed a case in march of 1970 and as quickly as a couple months later, i think it was june of 1970, they had an oral argument before the three judge District Court and dallas, and by october, they were heading off to the Supreme Court. There was no intermediate review at this. Time the three judge District Courts could go straight up to the Supreme Court without any this is one of the points, one of the ironies and one of the problems about roe v. Wade. There was no factual record. All of the details that we might play out about Norma Mccorveys life were not in the opinion. There was no trial. There were no expert witnesses. There was no presentation of evidence. In the decision, written by Justice Blackmon, you get only the barebones that she was a single women who is not married and got pregnant, and sought an abortion. Then the decision is so sweeping that her particular factual circumstances are not really significant to the outcome of the decision. That is in part of how roe v. Wade is different from all the other cases. When you think of miranda or gideon, or marlborough, those are very factual laden decisions, and the courts go through the facts and a great deal of detail. There was no fact, no trial in this case. That isolates it and highlights it as a very unusual decision. Who was weight . Henry wade was the prosecutor. He interesting lee was one of the judges on the three judge panel , and sarah hughes was famously the woman aboard air force one in 1960. Three he was the prosecutor, and by all accounts, a fairminded man, a good prosecutor who found himself in the middle of a maelstrom. Would you talk about the ruling by the threejudge federal panel . On what grounds, did they rule in the case . Melissa the District Court ruling is actually quite interesting. Theres a lot of discussion of privacy but also quite a lot of discussion about the ninth amendment, which is known in legal circles as the unknown ninth amendment. There is not a lot of case law about it but the idea is that not all rights in the constitution are actually enumerated. The job was not meant to be exhausted. There are other kinds of rights that might be divined in the ninth amendment, sort of speaks to. That that judge panel talked about the ninth amendment being a source of rights for rights like this one, the right to have an abortion, and there was discussion of the right to privacy which had been denied through judicial interpretation in 1965. Was it at all significant in the federal review that she had claimed that she had been raped and later disavowed that claim . It was not. The allegation of rape was not in the federal District Court opinion. It was not in the Supreme Courts decision. The fact that she later recounted that is really not relevant to the decision or the future of the decisions, because the courts themselves did not look high upon the allegation in making their decision. Again, that is what is problematic about roe v. Wade. They decided a motion to dismiss. There was no trial, no expert. It wasnt decided through the normal course of the adversary process. That lays the foundation for the problem that i think we have seen over the last four decades. A twitter question the question, when a case is dismissed on temporary on facts that were not true, in this case, its not a valid allegation. Can you answer that question for the viewer . Melissa i think it is worth noting the fact that she had claims she had been raped in order to gain access to abortion, which suggests how difficult it was for women to seek to get abortions. Im sure she was not alone in claiming that she had dire circumstances, whether it was a rape or her life was in peril in order to gain access to that kind of procedure. Lots of women were doing it at that time. What more can you tell us about the sever wedding ton . How old was she . She had just been a couple of years out of law school. This was apparently her first contested case. Certainly, you have to hand it to her to jump into a Major Federal Court case like this, or one that becomes a Major Federal Court case, and to take it up to the Supreme Court, arguing it twice and winning. It is an amazing first effort by a law student or a young lawyer coming out of law school. Again, this is one of 20 or 22 cases that were in the courts from many different states at the time. You might have had and amy smith or mary jones who eventually got up to the Supreme Court, but the court happened to take these two cases instead of the 18 or 20 others. We have to talk about the second case, which is a bit confusing, because it sounds like row but its called dough. You have something you want to say about Sarah Weddington. Melissa the issue of abortion is actually quite personal. While a law student, she found herself unexpectedly pregnant. She and her husband went to mexico to get an abortion, because she couldnt secure one in texas. She felt these issues in a personal way. I think that informed her decision to take on this case, even though she was only a few years out of the university of texas. We will talk about the second case, which is a georgia case called doe. Clarke doe v. Bolton, an unmarried woman who was using a pseudonym revealed her identity a years years later as sandra cano. Similarly, they were challenging the georgia statute. The georgia statute was different because the georgia statute was a recently enacted law called a reform law that had enacted various exceptions into the georgia law, so it allowed abortion to save the life of the mother, but it also allowed abortion for rape, indications of fetal deformity, for Mental Health reasons, and those three exceptions were enacted into the georgia law in 1968. It was a very recent law, and it hadnt been in effect long enough to tell what happened, but in doe v. Bolton, that case was decided without any trial, any expert testimony, and was also decided on motions to dismiss, and again, went straight to the Supreme Court without appellate review. We will learn that the Supreme Court heard arguments in tandem, roe and doe, and they meant for the decisions to be read as a conjoined decision, correct . Correct. The case bears the name of row. It is also worth noting that the law at issue in doe was one of those reforms, as clark, said a reform inspired by the ali penal code. In marks the tension to be. By the time deal was promulgated, there was an idea that this was only making a modest impact for women who wanted to terminate their pregnancies, and that a repeal was needed. Our last case was chief justice earl warren, in this case involves a new court. We are going to learn a little bit more about the dynamics on that court in a couple minutes. I want to take some telephone calls and get this question from courtney on twitter who says what do you think wouldve been different if there were experts . Well, it would have provided the opportunity for them to explore what data existed with respect to abortion. Had perhaps happened, what had been the medical experience, the sociological experience, the impact on women and unborn children under the texas law or under the georgia law. The court in the doe versus bolton case had no data or information about how the reform law, the georgia law with the exceptions had been implemented, the impact of the hospitalisation requirement in georgia, for example, and so all of the assertions of sociology and history and psychology in the roe versus wade and the doe versus bolton opinions were based on assumptions, not derived from the adversary process that we know and expect of course in making good decisions. You think there wouldve been a difference if there were a testi