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 testimony . I think it wouldve been a difference. I think you wouldve had more of a social context at the time. There wouldve been more discussion about the german measles crisis, which prompted many women to try to seek abortions to prevent birth defects. There probably wouldve been discussion of a drug that came around in the 1960s that caused birth defects. There wouldve also been more discussion about women who are actively close out of access to abortion. Having to seek medical care elsewhere. I think that wouldve been part of the record and it couldve made for a more fulsome discussion. Let us take our first phone call. Josh from iowa. What is your question tonight . Hi. Thank you. Ive got two quick questions. First, does the trimester framework still apply and restrictions today, or was that overturned where Justice Oconnor talks about the point of viability, being the state where there is a state interest about the fetus. My second question is, do you think that the justices believe that at the time this was a good compromise considering that Warren Burger joint the majority opinion . He was not a liberal justice thank you. Thanks. Well say the second questions because we are about to talk about Warren Burger. It is not ethically in the planned parenthood versus casey in 1992. The court completely overhauled roe v. Wade. They abandoned the original rationale for row. They adopted a new rationale and kind of abandoned the trimester and turned it into a by mr. , meaning that before viability there are certain standards and after viability. There is no trimester. It is now by mr. Next is a call from terry in alto california. Terry, you are on the air. Welcome. Thank you. Im really interested that the first clip showed the context as being a feminist and civil rights introduction to the abortion rights discussion. And i am wondering if going forwards, if the case would be more considered fairly on civil rights terms rather than where it seems to be going in trap laws and so forth, if the woman and her doctor being asserted as people who we have as just standing as compared to a man and his doctor having the right to make equally momentous decisions if the guest might comment on abortion rights as civil rights. Thank you very much. I think you have went through a line of argument that ginsburg argued in the 1986, in a law review article. She famously criticized roe v. Wade reliance on the privacy doctrine and said the decision wouldve been better housed as a sex discrimination decision. To think about access to abortion as essential to womens equal citizenship rather than cloaking it in privacy. That wouldve them but that wrote would fairly admit that roe v. Wade was wrong deciding the original rationale was wrong. It would simply ignore a major state interest of the court, since roe v. Wade says exist, the states have an interest in Maternal Health and interest in the unborn child. That would simply ignore one major interest that the court has recognized since 1973. And row was wrongly excited. On twitter, the fact that they have to use pseudonyms demonstrates how difficult society treated the defendants. Any comments on that . Was the dole case also a pseudonym . Next up is david who is watching us in tulsa. Go ahead. Yes, thank you for another great series, my question is did the court at any point in time discuss when life begins . And i would like to know with both of your grass, we are winded they believe that life begins . The court did address it in roe v. Wade, but they did it in a rather dismissive way. There is no facts, no trial, no evidence. They had no evidence about Fetal Development in the record. But the attorneys who argued did address that but not from a record. But the court basically dismisses it and says, we, in the majority of opinion we are very familiar with the facts of Fetal Development. But then, as they decide that the unborn child is not a person under the constitution, and not entitled to constitutional protection. Any more on that answer . Richard insane petersburg, florida . But yes, they said personhood who does not exist prenatally. At eight and a half months you are not a person. Weve had a lot of bigotrys through our society. Native americans do they have souls . Etc. Hopefully one day we will outgrow such stuff. If anyone were to submit a paper to a science journal claiming there was doubt that a fertilized ache of a gorilla, whether or not it represented a new individual growing, they would be left to scorn around the block. I would like to ask our gentleman about his very important point about the lack of factual record in the case. In the case before congress a few years ago, at least there was the opportunity to have a factual record. In fact one of the things thrown out were saying that this gruesome procedure, taking the brains out of a baby, you dont have to worry because the anastasia is not alive. But the president of the American College of abc zeal just had to say please, you are endangering women and babies around the country. Anesthesia procedure is telling them that they would kill the baby. These lives have long tentacles. Response for that color . Well it brings up a lot of points. Certainly we have learned a lot more over the 40 years over fetal medicine and development, one of the interesting things about the original decision in roe v. Wade and the argument, as you know you can hear the arguments on the original read the original transcript of the decisions, the word ultrasound never appeared in the original opinions or arguments or in the briefs. Because it only came out on the commercial market on the United States a few years after the decision. That has permanently changed Public Opinion. And the second observation is that, in the courts most recent decision, which i think we will eventually talk about in 2007, the majority opinion does recognize perhaps more specifically than in previous decisions that pregnancy involves a living human organism. That is perhaps the most expressed the court has been in 42 years. With did that judge acknowledge the fact that medical knowledge was at a certain state and would continue to evolve . The judge had been for years be been a general practitioner at the mayo clinic. He was well versed in various medical procedures. And between the two different arguments, he went back to minnesota and spent most of the summer in the library at the mayo clinic researching the procedure, the history. At the time his opinion which is actually robust, has a very long description in the medical history. But medical technology was not nearly as advanced as it is today. The kind of fetal monitoring and procedures we have today were unheard of. Then the idea that we would have this Robust Knowledge of the no taller gee was unheard of at the time. Lets pause and learn about the Warren Burger court. What are the dynamics of it . What kind of courted heath minister . He was a very different chief justice thin earl warren, who proceeded him. He was a d. C. Circuit judge before being appointed to this prime court. He was a lifelong friend of blackmon, that was burgers best man at his wedding. It was burger who suggested that Harry Blackmon be a nominee. He was a champion of Harry Blackmon. I think when blackmon joined the court burger joined the court, burger really expected that he and blackmun would be of a single mind, and indeed, the press thought so too. They called them the minnesota twins. Certainly, there are judicial philosophies converged over roe vs. Wade, and at the end of their lives, their friendship was really in tatters. The court itself felt the strain of that tension. Berger was famously idiosyncratic in terms of his love of celebration and pomp and circumstance. That often wore on certain members of the court. So, when the court was prepared to hear this case for the first time, it did not have the full complement of numbers. Can you talk about why . The court originally took the case is not to decide the abortion issue. They took the cases to decide younger versus harris, a divisive case that had been decided just 60 days before the court took roe and doe. And it involved whether civil rights attorneys could take cases from state court into federal court. And that kind of general factual scenario applied in roe and doe. They took these cases to decide if younger applied in these cases. In 1971, justice black and Justice Harlan retire within the space of a week due to ill health. Black dies the next week. Justice harlan dies at the end of 1971. And any temporary majority can decide cases. And a temporary majority can decide cases. For 15 weeks between 1971 and january, 1972, there were 15 weeks there where the four wanted to decide as many cases as they want, as they can. And they want to decide roe v. Wade. You see these two cape cases that were taken from judicial, and they decide its an opportunity to sweep away abortion laws, and they want to do it before vacancies can be. Filled although they are not able to do it on that timeframe, they create such momentum that by the time the vacancies are filled in 72, the cases are pretty much decided and the question is how they will be written. I dont think it was quite as nefarious is that. Even though they are down to justices, chief Justice Burger appoints a committee that will screen the cases that are available to hear argument on. To pick out the ones that are going to be easy cases that they can decide with seven justices. Take out the controversial cases and focus on the ones that would not be controversial. Blackmon writes in his notes, that he and Potter Stewart misjudged roe v. Wade. Potter suit thinks its going to be a straightforward application of younger versus harris, that is the federal Court Extension case. In fact, it is much more controversial issue. Harry blackmon vince as we really bungled. That they considered roe v. Wade, that firstly abortion laws, except those required on medical device to save the life of the mother, violate the constitution . Second, does the 14th amendment due process clause protect the right to privacy including the right to obtain an abortion . Third under any circumstances prohibiting abortion . And fourth, does the fact that rose pregnancy was already terminated prior to the case render her lawsuit moot . Next we are going to listeners some of the first oral arguments with 26yearold sara, and texas assistant attorney general. From 1971. Regardless of the circumstances of conception, whether it was because of race, incest, extremely immature, she has no release. A pregnancy, to a woman, is perhaps one of the most determinant of her life. It disrupts her body, her education, her employment, and often her entire family life. We feel that because of the impact on the woman, this is a matter of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or terminate her pregnancy. There is nothing in the United States constitution concerning birth, contraception, or abortion. We do not agree with the appellate statements that the woman has a choice, but as we previously mentioned, we feel this choice is the womans prior to the time in which she becomes pregnant. Because one of our goals here is to understand the people involved in these cases, i have read a number of descriptions of how the case was presented. Peter irons suggest that the justices were very frustrated because the attorneys did not give constitutional reasoning for their arguments. Can you add more to the understanding of what happened in the courtroom . Because they took these cases to decide younger versus harris the first arguments, listeners can hear them online and read the transcripts, it is best to listen to the arguments at the same time so you dont miss anything. The first arguments are mostly concerned with questions about jurisdiction and procedure. Questions like, who has standing, is it moot, who should have brought these cases, should they have gone to the court of appeals first . There are very few substantive questions were answers until the end. At the end of the first argument, one of the attorneys for the plaintiffs kind of sums up by saying quickly at the end, and we appeal to the right of privacy and the ninth and 14th amendments of the constitution as the basis for our case, in kind of a rush like that. That is one of the problems with the case. What more can you tell us about these two attorneys who argued the case before the court . To echo what clark said, what is going on is the question of constitutional avenue use and one of the things they focused on was things being constitutionally vague. There is very little discussion of other kind of constitutional theories that couldve been used in this case. There is an interesting and kind of funny, if not misogynistic moment, when jay floyd whos arguing for texas notes for the court, with these two pretty young ladies they are short to get the last word. They play this for a laughing it fails miserably. He is greeted with stony silence. One observer said this, chief is about to come down from on high and discipline floyd himself. I understand. That the attorney general this listener general played that tape for their classes and students as to how not to argue. Never do this. John who is watching us on twitter. He says how could it attorney thought a sexist joke was good way to start an oral argument. Was he the best they had . Obviously not because they replace him with another attorney for the second argument. But floyd starts out with a bad joke and the argument goes down from there. After argument is over and the justices go to conference, from what we know about that conference process, a lot of the issue started the clean the justices. Tells the story of what you. No one big question, it was which case would actually lead. Blackmon thought dough was less consensus of what dole should be. Broad consensus over the statue over row, the texas case, was unconstitutional but mostly for reasons of constitutional vagueness. William of douglas was that senior justice at the court felt that because there is no consensus on joe, the chief justice was not in the majority and thats the obligation to sign the opinion should have been his. Warren burger did not see it that way. He is signed harry black when, to write the opinion much to the consternation. And blackmon went off to write, what he wrote was quite spare, only 17 pages. Most of it dealing with disability issues. Only three pages dealing with the substance of the merit. That was met like a lead balloon to the other members of the court who founded unsatisfying. Some of the folks that ive read suggested that a justice exploded with rage over the assigning of the pinion and also over the thought of rehearing the case. What can you add to your knowledge of what happened behind closed doors . First of all, i think its important to that weinberger replaced earl warren, the liberals on court, among them douglas and brennan, and ivan stewart, could not stand burger. Nixon had campaigned against the war in court. He appoints burger to change the war in court. He is received with a lot of skepticism and trepidation at the Supreme Court. This is only his second or third term in the court, and they are very skeptical of him. He, his assignment of opinions, was viewed with skepticism. Douglas did doubt his integrity. In january, when rehnquist joined to the court to make a full bench of nine, burger makes a motion not in order, but a motion to have the cases reargued. Douglas and brennan are very skeptical about this because they think it will flip the balance and result in a 54 decision against abortion rights. Then that crisis renews in may and june when Justice Blackmun distributes his first draft opinion and again the motion is made to reargue the cases in the fall. The justices explode, especially justice douglas. He writes a scathing dissent that he wants to issue before the end of the term condemning burger for allowing the manipulation of the court. He holds that dissent, but it sneaks into the press and is on the front pages of the Washington Post on the fourth of july weekend and gets on the front page of the New York Times the next day, which raises tensions that it will be reargued and it was reargued in 1972. We should also note that there was a president ial election going on. The court always envisions itself as being distant from the political process, but in case after case in this series, we have learned that there are political influences that find their way into the court and the proceedings. The election as the backdrop against which the court is doing all of this. Nixon is an interesting figure because he actually is in favor of liberalizing Abortion Access at one point in his career. But as he takes on the much more liberal mcgovern, he begins to play up his only leanings. His stance on crime is more articulated. Its all done to position himself as the antimcgovern, and he wins in a landslide. The court had strong evidence for it. Justice burger delays releasing the opinion in roe vs. Wade until after next and is inaugurated. The decision is released in january 22 just after the nixon inauguration. So, we are going to listen to the second oral argument. As you mentioned, there is a new attorney representing the state of texas, robert flowers. Anything about him that would be important for people to know . He was an assistant attorney general who did a better job, but still, the arguments are limited by the fact that there is no trial, there is no record, there is no evidentiary proceeding. So, the justices ask the attorney questions about substance, history and abortion that they have no basis for answering. In both arguments, there are lots of times when the attorneys say i dont know, because they have no factual record on which to rest their answers. Lets listen to a bit of a second oral argument, it is october 11th, 1970. Two under the federal constitution, is a fetus a person for the protections of the clause . All of the cases, in common law history would indicate that it is not. Would you lose your case if the fetus was a person . Then he would have a balancing of interests. You have anyway. You have a balancing the rights of the mother and the rights of the fetus. It seems to me it is not balancing the Constitutional Rights of another but statutory rights of another. But is the possession of the state of texas that upon conception we have a human being . A person within the concept of the constitution of the United States . Is it not true or is it true that the medical profession itself is in agreement as to win life begins . I think thats true, sir. But from a layman standpoint, medically speaking, we would say that at the moment of conception, at that chromosome, every potential that anybody in this room has is present at the moment of conception. Then you are speaking of potential of life. Which everyone can agree. On the seventh day, i think the hard in some form starts beating. What is different about the Second Time Around . You are definitely getting more substance. Also what is different, more of these lower court cases on abortion trickle up. One of the things they speak about in the beginning of her argument able versus markle, a connecticut District Court judge it violates the rights of privacy. Fundamental constitutional. Writes there is more constitutional greased for the middle and this oral argument than the one that happened in 1970. One we are going to take a few calls that hear from justice Harry Blackmon himself about being in conference and what it was like to be assigned the pinion in this case. Lets listen to a comment from herbert, chicago. I have a couple of questions or points did any of the decisions by any of the justices talk about when life begins in the decision . Also, whether any friends of the court briefs filed on behalf of the unborn child . We did take the first one before, but will you answer it again . The justices only in passing talk about their familiarity with Fetal Development, but there were amicus briefs filed that presented pictures of Fetal Development in prenatal life. In fact, the attorneys argued that we have exercised Sarah Weddington and the texas attorneys in roe vs. Wade, but there are arguments and transcripts in doeversus bolton. Although Sarah Weddington has gotten a lot of media over the decades, the assistant attorney general for georgia argued both rounds of arguments. She is regularly touted to be the best oralist of all the attorneys in both of the cases in both best both of the cases in both rounds of arguments of all of the attorneys in both of the cases in both rounds of arguments. Next up of marvin. Hi robin. Is roe v. Wade established law or is there any case that comes through the lower court system that could overturn roe v. Wade . One of the issues in the current president ial campaign is if you vote for candidate x or candidate y, the Supreme Court might be changed by voting for that particular person who might appoint certain justices. Is it established . Is it safe . Or is there a case coming through that might overturn it . It is established law. Is it safe, that is a different question. Obviously safe communal lot of different things. You could have a decision that completely overrules roe v. Wade. We have seen the court overrule opinions they believe for incorrectly decided. But i think the more likely thing to happen that might endanger it would be intermittent chipping away of the decision, which i think we have seen over time. I think the idea of a complete overruling might be more remote, that the idea that there might be incremental restrictions might be something to think about. Could there be a legislative response . Well the states are often regulating to protect Maternal Health and fetal life, and that creates the cases that come into the courts. I would add that roe v. Wade was substantially overhauled in planned parenthood versus casey. The original opinion is somewhat defunct and has been superseded by the plurality opinion of planned parent hood in 1992. Its a completely the russian will. But row is completely unsettled. The justices could actually, in any particular case in which a stat statute arguably conflicts with roe v. Wade. They could revisit. They wont do so in the short term but they could, in any case. Perhaps the caller was also alluding to the fact president ial inauguration, four justices are going to be 80 or on the verge of 80. So the next president may affect the future of the Supreme Court for the next quarter century. I think it is a bit of an overstatement to say that row is defunct. It affirms the essence of. Row the basic core of row survives casey even as other rules come out. The court ultimately ruled seven to two. I want to ask you how we got to that. But first lets listen to keith in minnesota. Thank you, there has been talk, discussions about the rights of the unborn and the rights of the mother. Has there ever been discussion about the paternal rights . You are shaking your head, yes. Not necessarily in row. But it was in other cases. There is discussion if the provision of missouri law that requires a woman who is seeking abortion who is married to get the consent of her husband. In casey theres also a spousal notification, those are both validated by the court and both of those cases. There are other Supreme Court cases that deal with paternal rights. At the same time row is percolating at the court, there is a 1971 case called stanley versus illinois, it considers the rights of unmarried fathers. Those decisions often interact but are not necessarily understood is being on the track. But they are certainly informing one another. Lets listen to justice Harry Blackmon about writing his opinion. And then well talk about how he got six other justices to sign on with him. I think at the conference after the first argument, the chief justice sensed the sensitivity of the argument. And of the issue, rather, and i think probably preferred not to assign it to himself, as he could have. There were personal reasons also. Family reasons, i think. Bill douglas, i think, wanted the case, and i dont think he would misunderstand this comment on my part. Bill was in the waning years of his service, and was not writing as well as he did in prior years. He wouldve treated the case rather preemptively. Should brennan write it . At the time, he was the only Roman Catholic on the court. He was sustaining a lot of abuse. He got a lot, even though he didnt write it. Do you think he wanted to write it . I dont think he did, but i think he was firm in his view. Same with thurgood marshall. He was the only africanamerican on the court at the time. I think it would have been hard and a little unfair. Some interesting backstage dynamics explained at the heart of all of this and Justice Blackmun writing the majority opinion. What did you think of that . I think its great to think about the different personalities and the way these decisions are assigned. What i think he wanted to write the opinion. He had spent time writing an original draft when there was a motion for reargument. He worried that after all of that investment he would not be the one to write the opinion, that it would be given to another justice. Maybe one of the new justices that joins the court. I think he protests a little too much. There are reasons for the others not to write it, but i think there are reasons for him to write it as well. I want to pull up the still for the for questions. Lets see how they are decided by the court. While we are getting that ready, what do you have to say about the dynamics of the court that we just heard Justin Blackmon talk about . It was an unusual time at the court it was a unique time, the 1960s, the sexual revolution, the two vacancies. There was a lot of turmoil in the court. This created a crisis within the court at any number of points. What is interesting is that when Justice Powell and Justice Rehnquist joined the court, there was so much momentum that they could not have reversed it if they wanted to. At the end of the day, Justice Powell joined. At the very end, chief Justice Burger joined and switched it from a 63 decision to a 72. Here were the questions for the court again. We will go through them quickly. Do laws that criminalize all abortions, except those required on medical advice to save the life of the mother, violate the constitution . The court said yes. Does the 14th amendments due process clause protects the right of the mother yes. Did the fact that rose pregnancy already turned a natural or before this case was hurt by the Supreme Court render her lawsuit moot . No. This is justice Harry Blackmons opinion. It was how many pages long and total . Around 50. This is a quick glimpse of that. This right of privacy, whether it be founded the 14th amendments concept of personal library and restrictions upon state actions is brought to a compass a womans decision whether not to terminate her pregnancy. From just aspirant, i find nothing in the language or history of the constitution to support the courts judgment. The court simply fashions and announces a new constitutional right for pregnant mothers and invest that right with sufficient substance to override most existing state abortion statues. The upshot is that the people and legislatures of the 50 states are constitutionally distant title to weigh the relative importance of the fetus on the one hand against spectrum of possible impacts on the mother. The court that day for example, we learned that Justice Blackmon it but it righted his wife to come and listen to him. He decided to read the summary. How often does that happen in court cases where the justices read their summary from the bench . Reading a tire opinion is probably rare. A short summary happens now and again. Its not really out of the ordinary. What we know about the dynamics in the courtroom that day. We know that Justin Powell sent a note to Dottie Blackmun telling her she should be very proud of her husband on that day. Powell was one of the newest justices. He joined with william rehnquist. He was kind of a wildcard. Blackmun was very glad when he endorsed roe and actually pushed blackmun designating when life came into being. He wanted to leave it at three months, powell pushed him to expand it to viability. In terms of history of the country, it was after the exit inauguration, but that they became notable for another reason. Lyndon bains johnson died that day, and its really that that dominated the headlines. How much, or how long did it take the media to catch up with importance of the story . Clarke it was on the front page of the New York Times, below the fold. Johnsons death is the leading headline on january 23. But it was announced by walter cronkite. What is significant, i think, about the earlier media announcements is that the media almost consistently says that the right to abortion is limited to the first three months and we know that is inaccurate. But that was the initial message the public got. We know that when you look at roe and doe together and you look at the viability rule in roe vs. Wade, but doe v bolton looks at all factors, that Unlimited Health definition requires the states to perform abortion even after fetal viability. The press got it wrong and has continued to get it wrong. We always talk about the impact of the decision on the court and on society. We begin with Harry Blackmun talking about what public reaction was in his mailbag after this decision. There were the expected comments to the effect, your mother should have aborted you, or i have been praying for your immediate death. Much of the correspondence is abusive. I suspect i have been called every possible epithetical name, pontius pilate, murderer, butcher, herod, madman, and the like. I suspect i can outrun chief justice. Reaction . He certainly got blow back for this. There were four, there had been calls to impeach earl warren, there were more to get rid of Harry Blackmon. This was the defining moment in his life as a justice. He would go on to do many great things on the court, but he was defined by roe v. Wade. What are your comments . Actually, the justices completely underestimated the public opposition that there would be. There was discussion in various memos and deliberations in the two years leading up to row about how this is going to be criticized by the media, but of course, the public opposition and public anger has been more significant and resulted in hundreds of state laws attempting to eliminate the right to abortion as well as constitutional amendments, introducing congress and hearings from 1973 the 1983. The justices completely underestimated where the public was. Or where they would be. Lets go back to phone calls. Next up is nathan in bishop, texas. Hello, i have a question. Why couldnt the Supreme Court decision be handed down to the states under the tenth amendment as abortion is not mentioned in the constitution . Why couldnt it have been validated . He asked why could not be handed down under the tenth amendment . The tenth edmund meant was not a relevant consideration. The court has never consider the tenth amendment to be a blockage to its decision in roe v. Wade. What does the tenth amendment . Do it reserves power for the states, but the court in effect, said the 14th amendment super seats anything the tenth amendment might say. There have been many cases in recent years that apply a more robust view of the tenth amendment. Right, but the court has not applied it for abortion. David is in tracey, california. Yes, what do you think could have or should have happened, back then, that would have settled this issue once and for all . Thats a tough question. What couldve been done to settle this issue . I do agree with clear that a more robust factual record would have made clear what the stakes were for the many women seeking abortions and who were unable to get them. I also think it wouldve helped make clear what the states were seeking to regulate, whether it was in the case of Maternal Health, or in the name of immorality. Which some states are quite forthright about. I think, one of the difficulties of row is that we dont have that factual record. For that reason you dont get the voices of the many constituencies affected by this decision. How would you answer that . I think i would add that some issues in democracy of simply not finally settled and may take decades to settle. Especially issues with such strong cultural current. But i think its clear that roe vs. Wade has unsettled this issue more, and if it had been left to the people, it would have provided the opportunity for Public Opinion to effect Public Policy and be more in line with Public Policy. Public opinion is so out of sync with roe vs. Wade that it has kept this issue simmering for the last 42 years. We could say that about a lot of issues. Segregation is an issue that, if left to Public Opinion, would have come out very differently. There is a role for the court to play regardless of Public Opinion. That is certainly true in roe vs. Wade. There may have been backlash, but it wasnt clear that the democratic process would work in a way that would vindicate Constitutional Rights. Or the view of women that were clambering for this medical care. Is it fair to say that the criticism of this case does not fall neatly into a liberalconservative divide . I think its fair. Reasonable people can reasonably disagree on this question, and do. I think the larger question is what is the courts role in this process and when should the Court Intervene when the political process breaks down . The reform effort had stagnated at the time these cases at the time, these cases went to the court and that is the reason why there were so many cases in the pipeline at the time it was decided. The political process had broken down. The big difference though is that brown versus the board of education was based on reconstruction, based on the 14th amendment which specifically was decide who to defend the rights of freeman. In roe v. Wade, there is no history in angloirish can history, of abortion right. The court was not relying upon the history or text of the constitution. It was creating something wholly new. The justices, in reconstructing the amendments, it is something thats part of judicial character and judicial function, but the court became the ex officio medical board with the power to approve and disprove medical practices through the United States. Thats not something judges can do. They cannot be the National Abortion control board, and the 42 years has shown that very clearly. But they were making that out of whole cloth, there is a decision in 1965 which speaks of the right to privacy that emanates from various constitutional guarantees. And row is rooted in grizzled. Rooted in the right to privacy, it also speaks of the ninth amendment. Not as clearly, but again, this idea that not all Constitutional Rights are enumerated in the constitution. But again, i think the distinctions are stark. In griswold, the court acted like a court of judges and invalidated the statute, whereas in roe vs. Wade, the court did not just invalidate a texas statute, it rewrote and national statute of considerable detail that it has been forced to administer. That is completely different, and it has completely reinvested this court in the issue yeartoyear. The only way the court can really settle the issue is, to some extent, by relinquishing its role here. Robert in dallas, you are on the air. I want to confirm my understanding that Sarah Weddington was judge syracuses former law clerk, and when the case was filed in dallas, it may be more than a coincidence that it ended up before judge syracuse. She was not her clerk, but her cocounsel. When they were filing in austin, they decided they would have a better shot near dallas because judge hughes was likely to be part of the panel. I dont think it was necessarily angling, but it was certainly a degree of shopping. You said earlier that you didnt think that the personalities in this case were quite as large as some of the earlier cases we did. We have some video to show our audience of how sir weddington has changed camps. Lets watch. I dont think i have enough time to say all this. But i would like to apologize to each and every one of you here today. I am sorry. I have repentance, i have asked cheeses into my heart. What can i say . I love jesus and i love all of you. Thank you. What attorney this has been, right guys . How many of us love cheeses . How many of us want to see roe v. Wade overturned . I this is the day i have been waiting for. When we filed affidavits, when we had our News Conference on the 18th the actual filing was on the 14th of this month, so we are looking forward to having the covenant of death overturned like our great president george w just said. God is good and jesus is. Every year on january 20 second there is a large margin washington, d. C. , and she has been a speaker for many years at that rally. What happened . Suffice to say, she completely changed her views and she became, basically, a prolife act she testified before congress more than once in support of overturning the decision. And to seek to overturn those decisions. But their emotions were denied in federal District Court. And the Supreme Court in 2005 or six refused to hear those cases. And they refused to reopen them. Which is not to say that the Supreme Court has turned a deaf ear. But the 2007 decision of holding a partial abortion ban, just as kennedy sites the brief, upholding the partial birth abortion ban. They do receive an audience to happen to know any more of her story and what changed her mind on the . Issue she became a born again christian and her faith is what shifted her views. Lets hear a question from john who is watching us from illinois. Hi, thank you very much for this. I just wanted to bring up two points, it was my understanding in bolton versus the georgia case, where sandra cato never wanted an abortion. She went into filed for divorce but her attorney tricked her by putting in the papers that she wanted an abortion. The second thing is, talking to most gynecologistobstetricians, they feel the life of the mother is really not at stake because we now have a csection that can protect both the mother and the baby. If this case is rooted in griswold, griswold said the right to privacy pertains to things like contraceptives. Isnt it a tremendous stretch to go from, i have the right to buy contraceptives to i have the right to kill an innocent, defenseless child . The question to melissa, and the gentleman, with all due respect, yes or no, do you consider the baby in the mothers womb a human being . The reason why that is so important is because Justice Blackmun said, if we know that life begins at conception or before birth, we have to revisit this. Im going to let you go because we have a little time and lots of questions on the line. Just to make clear the bridge between griswold and roe, another case went before the Court Dealing with contraception. There the court is considering whether the law that prohibits selling contraception to unmarried people is constitutional. The court writes that the right of the individual to decide whether or not to bear or beget a child is the right of the individual, not necessarily a married couple. And griswold goes on to say what is a couple but a collection of two individuals . That language speaks of a fundamental right to determine whether or not to bear or beget a child. That furnishes the underpinnings of roe vs. Wade. As the history shows and the papers of the justices show, Justice Brennan was writing eisenstadt at the time of these decisions and envisioning addressing the abortion question, he puts this paragraph about privacy that was complete dictum into the equal protection decision for the very reason that they could use it in roe vs. Wade. Maybe to address the second part of the callers question, i do believe that science shows that the life of the human being begins at conception, but what is more important for our discussion tonight is that the states have progressively strengthened their prenatal injury law, wrongful death laws and Fetal Homicide Laws to the extent that 50 states have laws that protect the unborn child. We have wrongful death laws in 36 states that protect the unborn child. Fetal homicide laws in 39 states protect the unborn child. That is a very significant show of Public Opinion support for fetal protection. Many cases before the court over the past 42 years have considered some aspect of abortion. We are going to put some of the names on the screen. You have heard references to them. The last one was before the roberts court, whole Womans Health versus coal, which is not yet on the schedule. Marianne, your comment. I am a physician in philadelphia and i have two things to say. I find it so painfully inconsistent that the child in the womb has no rights, but when scott lacy killed his wife and unborn child, he was accused of killing two people. A law made a woman wait 24 hours and if under the age of 18 have parents consent. What did the attorneys have to say about that . This is the case you were referring to the end, a 1990 two case from southeastern pennsylvania. The court is considering pennsylvanias abortion control act that has a number of provisions. One requires parental notification. The other requires a 24hour waiting period. Another one requires spousal notification. The Court Affirms the essence of roe vs. Wade but scales back and dismantles the trimester framework and the standard of review required for abortion cases. The idea here is that abortion regulation will not be considered constitutional if it imposes a substantial obstacle to the woman seeking the abortion. The waiting period is not held to have a substantial effect, or parental notification, but spousal notification is struck down under the standard that it renders women subordinate to their husbands. More portly, the court is more importantly, the court is worried about Domestic Violence in these relationships. Roe vs. Wade focused only on abortion. It did not address fetal protection law. It left it to the states to enhance fetal protections in those areas, and the states have done so. We now have, in fact, half of the states with Fetal Homicide Laws that extend protection from conception, but you have a Supreme Court edict across all 50 states allowing virtually abortion on demand at any time for any reason, and that has created because there is such a tension here here, that has kept to the issue simmering for 40 years. The issue is certainly simmering in the president ial campaign this year. And in congress, the issue of planned parenthood funding, up until very recently, the threat of a Government Shutdown hinged on funding for planned parenthood. This continues to really be debated in american society. Our next clip is two senators on the floor of the senate on the anniversary of roe vs. Wade in january of this year. The law was on a steady march toward protecting human beings before birth. Through the 19th century, medical professionals and civil rights activists lead a movement that succeeded in prohibiting abortion in every state except to save the mothers life. America had reached a consensus on protecting the most vulnerable. Unfortunately, the Supreme Court swept all of that aside, imposing upon the country of permissive abortion regime that to this day the American People have never chosen or excepted. It is hard to believe that here i stand in this century arguing that women should be respected, that families should be respected, that everyones religion should be respected. I support a womans right to choose, and that means if your religion says you will never end an unwanted pregnancy, i support you. I believe this decision should be between a woman, her doctor, and her god, and her family. And i dont think any United States senator should get in the middle of a womans private life. As our program is quickly coming to an end, i am going to move from two United States senators talking about roe v wade to give you the view of two justices talking about the decision. Ruth Bader Ginsburg and antonin scalia. Take the worstcase scenario, roe vs. Wade is overruled by the Supreme Court. There will be states, a sizable number, that will not go back to the way it was. At the time of roe vs. Wade, there were four states that gave women access to abortion without any questions asked in the first trimester. Those states are not going to change. What it means is a woman who can afford a plane ticket, a bus ticket, will be able to decide for herself. Whether to have an abortion. But the women who wont have that choice are poor women. These are political questions for the American People to decide. That is what democracy is about. Do you think abortion should not be prohibited . Fine. Persuade citizens to pass a law. But dont tell me the constitution has taken that issue out of democratic choice. It simply hasnt. There we have two members of the current court, and also United States senators, laying out the continued divisive arguments. We have only three minutes left. I want to get on the record the effect on the court itself. Can you talk about the impact of this case on the selection of justices for the court . It has been a litmus test ever since probably 1976. Justice stevens nomination was probably the last in which it wasnt an issue or much of an issue. So much evidence has skewed judicial appointments to the court. It has become a disproportionately emphasized issue. When you take into consideration all of the other serious, statutory, constitutional, and policy issues that are addressed on the court and that have skewed consideration, i think that has been to the detriment of the country and the court. One of the interesting stories about wrist Bader Ginsburgs confirmation was that president clinton was worried about appointing her because she had written an article about roe vs. Wade and he worried that she was against it. It turned out she was just against the reasoning. It is a litmus test and it plays out in different ways. How should people think about this case and its impact on our society and on the court . And where does this country go from here given the heat around this issue. This is an issue where very reasonable people can disagree. Some argue that it is about womens right to participate equally in society. Others focus on the life of the unborn child in questions of our democratic process. Those are hard things to reconcile. But the Court Intervenes and either takes us in one direction or another. I think it was a tragedy for the court to step into this issue prematurely and to take over the issue for the last 42 years, and to try to be the National Abortion control board. It has failed in that task, and the best thing the court can do is return the issue to the American People where Public Opinion, and Public Policy would be allowed to be more in sync, and that would, i think, alleviate a lot of the tension on the issue, and restore Public Opinion to its rightful place and determine the outcome of this issue. We are at the final moments of our landmark cases series. Thank you so much for being with us throughout the 12 cases. The series is archived on our website, cspan. Org. You can find it easily under the series. We have video from each of the 12 programs there for you, including the other videos that did not make it into the television production, visits to Historic Sites and oral histories from people involved in these cases. You can also read opinions and hear audio on our website. Finally, if you would like to have landmark cases on your bookshelf, thats also available and we can get it out to you very quickly. Thanks to our two guests tonight for being with us. We learned more about the background and the importance of the roe vs. Wade in 1973. Thank you for your expertise. Warren parker served as u. S. Chief justice from 1969 to 1986, now, remarks by new yorks University Law professor on his life and legacy on the high court. Held by the Supreme Court