Right to Privacy: Roe v Wade

Right to Privacy: Roe v Wade: Audio automatically transcribed by Sonix

Right to Privacy: Roe v Wade: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Hannah McCarthy:
This is an episode about a case, a couple of cases that no longer carry the force of constitutional law. This episode was made when the essential holding of Roe v Wade still stood. This is no longer the case. It's a rare occurrence for the Supreme Court to overturn a decision outright, especially a landmark decision. But that is indeed what happened on Friday, June 24th, shortly after 10 a.m.. In a 6-3 vote to uphold a Mississippi abortion ban. In the case of Dobbs v Jackson Women's Health Organization and a54 vote to overrule Roe v Wade in its entirety, the Supreme Court has eliminated a federal right to abortion. In the majority opinion, Justice Samuel Alito called Roe egregiously wrong from the start. The opinion holds that Roe and Casey must be overruled. Casey, by the way, refers to Planned Parenthood v Casey determined in 1992 which could have overruled Roe v Wade, but did not. The reasoning at the time being that row was practicable. The provisions of row depended upon by people in the United States, and that landmark precedent was important to preserve. 30 years later, a majority of the court determined that Roe and Casey must go, period. When we first released this episode in 2021, one of our guests, Rene Cramer, said something that I didn't include in the episode because it was a prediction, not yet a fact. Hey, Renee, you were right.

Renee Cramer:
And I've been predicting that Roe will fall for the last three years. I mean, on live television, I have said Roe will fall. The fact that it didn't astounds me. When Roe falls, access to reproductive health care of almost all kinds will depend on where you live.

Hannah McCarthy:
Listen to this episode to get an understanding of what Roe V Wade was, what Casey was, and why they happened in the first place. But no, the decisions about abortion access are now the providence of your state. Here we go.

Hannah McCarthy:
Every year, around 7000 cases try to beg their way onto the Supreme Court's docket and only about a hundred, you know, maybe 150 of them make it. And while all of them are significant, the majority pass by without a ton of scrutiny. There is one case in particular, though, that for some was pure scandal, a ruling so controversial that to this day, advocates work tirelessly to preserve or overturn it.

Archival:
To raise the dignity of woman and give her freedom of choice in this area is an extraordinary event and I think this January 22nd, 1973, will be an historic day.

Archival:
In this instance, the Supreme Court has withdrawn protection for the human rights of unborn children. And it is...

Archival:
What is the most important human right? The right to life, the right to life, the right to life.

Archival:
That a fetus is not a person. Yes, it is. Ok, that's where the disagreement is.If women could keep themselves from getting pregnant when they didn't want to. I tell you what it is, it's chastity. Hey bagpipes, shut up. When does it become a child to you?It's my body. I would have to carry the child.

Hannah McCarthy:
This is Civics 101, I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice,

Hannah McCarthy:
And today we're taking on a case that these days shows up in every Senate hearing for a new nominee to the Supreme Court

Archival:
The case that every nominee gets asked about. Roe v. Wade. Can you tell me whether Roe was decided correctly? At protests and during elections? If Roe v. Wade is Overturned, what would you want Indiana to do? Would you want your home state to ban all abortions? You have two minutes.

Hannah McCarthy:
A case that fueled the fire of two movements that draw a line in the reproductive sand, Roe vs. Wade.

Renee Cramer:
I will start by saying that probably anything you think you know about Roe is wrong.

Hannah McCarthy:
This is Renee Cramer, law professor at Drake University.

Nick Capodice:
Well, hang on. Hang on. This has got to be one of the most famous cases the Supreme Court ever ruled on. And Renee saying we don't actually know it. I mean, Roe v. Wade is the case that legalized abortion, right?

Renee Cramer:
No, actually, it simply said that Texas couldn't criminalize abortion in the first trimester.

Hannah McCarthy:
As it turns out, before you can start learning Roe v. Wade, you first have to unlearn Roe v. Wade.

Renee Cramer:
And one of the first things that we have to unlearn about Roe is that states weren't outlawing abortion because of religious or moral views. The church was actually not a big player. The Roman Catholic Church or the evangelical church was not a big player in abortion politics until after ROE. State laws limiting access to abortion were passed because doctors wanted to decide which women could access them. So most states began with laws like if your health is in peril, your doctor can facilitate an abortion. And doctors had a really liberal view of what that meant.

Hannah McCarthy:
The main factor in providing an abortion was the health of the mother. So if a woman was going to die if she carried to term, she could, of course, abort. But the same went for mental health risk, like postpartum depression or not having enough money to support a family or being at risk of losing your job if you were pregnant.

Nick Capodice:
Ok, so Roe v. Wade is not about legalizing unrestricted abortion. And anti-abortion laws were not necessarily based on pro-life ideas, pro-life being the term anti-abortion activists use for their movement.

Hannah McCarthy:
Yeah, and one more thing. Roe v. Wade did not result in the plaintiff, Jane Roe, [00:04:00] real name, Norma Jean McCorvey, getting an abortion. She ended up carrying the child to term and giving the child up for adoption. While we're on the subject of Norma Jean McCorvey, McCorvey later went on to speak out against abortion and call her involvement in Roe v. Wade the biggest mistake Of her life.

Archival:
Norma McCorvey: I've done a lot against his teachings, but I think the far greater sin that I did was to be the plaintiff in Roe vs. Wade.

Nick Capodice:
Ok, that I have heard Norma McCorvey became a major anti-abortion activist.

Hannah McCarthy:
She did

Hannah McCarthy:
Indeed. Which makes this interview clip all the more complicated.

Archival:
Nick Sweeney: [00:04:37] Do you think they would say that you used them? Norma McCorvey: Well, I think it was a mutual thing. You know, I took their money and they put me out in front of the cameras and told me what to say. Norma McCorvey: And that's why I said that.

Hannah McCarthy:
Is Norma McCorvey telling director Nick Sweeney that essentially she was putting on an act in exchange for money from pro-life groups. She also says in this interview that if a young woman [00:05:00] wants to have an abortion, that is her choice. McCorvey passed away in 2017. So unfortunately, we cannot ask her about any of that. But there you go. This documentary, by the way, came out in 20/20. It's called A.K.A. Jane Roe. And the one last thing I will say about unlearning Roe v. Wade when we talk about Roe, we're actually talking about Roe and a case called Planned Parenthood v. Casey.

Nick Capodice:
Another case.

Hannah McCarthy:
Yep. In 1992, Planned Parenthood v. Casey nearly resulted in Roe being overturned. It was not overturned, but it was changed drastically enough for Chief Justice William Rehnquist to write the following, quote, Roe continues to exist, but only in the way a storefront on a Western movie set exists, a mere facade to give the illusion of reality. And we will come back to that later. [00:06:00]

Nick Capodice:
Wow, Hannah, now you've told me what this case is not. Can we talk about what it is?

Hannah McCarthy:
Yes. Back to Jane Roe.

Renee Cramer:
So this was a very troubled woman for most of her life, both before and after the case. What brought the case to be was that she was an unmarried woman who this was her third pregnancy and she did not want to remain pregnant. She wanted to have an abortion in the state of Texas, abortion was outlawed unless to save the life of the mother or the mother was raped or a victim of incest. So at no time could a woman simply access abortion. She had to be have her life at risk or have the pregnancy to be the result of a crime. So she lied and said that she had been raped. And that makes this problematic for a whole host of reasons, but not problematic legally.

Mary Ziegler:
So she eventually, after trying to get an abortion illegally, found her way to two attorneys, Linda Coffee and Sarah Weddington.

Hannah McCarthy:
This is Mary Ziegler, law professor at Florida State University College of Law. And author of a number of books about abortion law and Roe v. Wade,

Hannah McCarthy:
She eventually gave birth anyway before the case was decided and the child went up for adoption, but the case continued. So Coffee and Weddington filed suit in a district court in Texas on Makarevich behalf, and they used an alias, Jane Roe.

Hannah McCarthy:
The purpose of an alias, by the way, is to protect the identity of the plaintiff, sort of similar to using TALOS initials and New Jersey Vitiello because she was a minor at the time. Even though we later found out Roe's identity, you can imagine why Coffee and Weddington might have initially wanted to protect their client's privacy.

Archival:
But when She came Forward, Norma McCorvey became the emblem of the movement.So she's here today coming out of hiding for this. And we appreciate her courage, darling.

Hannah McCarthy:
Anyway, the case goes to a Texas district court and here is the kicker in that district court, [00:08:00] a three judge panel found the law that prevented Norma McCorvey from pursuing an abortion to be invalid. But District Attorney Henry Wade was not so happy about that. He appealed the case to the Supreme Court. And by the way, the court almost did not take it. Here's Renee again.

Renee Cramer:
Some of the people on the court said, well, we shouldn't hear this case. There's a rule that the court cannot hear MOUT cases. A moot case is one that doesn't matter anymore. And you could look at Norma McCorvey or Jane Roe and say, well, she's not pregnant anymore. She doesn't need access to an abortion. And the court does that sometimes when it wants to avoid an issue like affirmative action, some of the first affirmative action cases, they'd say, well, he already got his degree. We don't need to we don't need to trouble with this. But they looked at Jane Roe and the state of Texas and they said, you know, any woman in Texas who's pregnant and doesn't want to be is going to have this problem. They defined her as part of [00:09:00] a class, a class of people, meaning any woman who could become pregnant, who didn't want to be pregnant. And they said we have to decide this on their behalf, using the facts of her case as the starting point.

Hannah McCarthy:
So the court takes the case.

Hannah McCarthy:
We'll hear arguments number 18 Roe against Wade.

Hannah McCarthy:
You've got attorney Jay Floyd arguing in defense of the Texas abortion restrictions and attorneys Linda Coffee and Sarah Weddington representing Roe and Floyd. Oh, Boy Floyd arguing a case that will ultimately decide whether a woman has a right to choose to have an abortion. Arguing opposite to accomplished female lawyers starts his argument like so,

Archival:
Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this they're going to have the last word.

Nick Capodice:
Oh, that's just - that really happened?

Hannah McCarthy:
Yeah, that really happened. It's been called the worst joke ever made in legal history.

Nick Capodice:
That's ridiculous. And I'm not really hearing a chuckle from the bench.

Hannah McCarthy:
No. Apparently, Chief Justice Warren Burger looked like he was going to come at Floyd for that one. So Weddington and Coffee argue along Ninth Amendment unenumerated rights. That's the amendment that says that just because a right isn't listed in the Bill of Rights doesn't mean that you don't have it. They also went for Fourteenth Amendment Rights to Liberty and cite the due process and equal protection clause of the Constitution.

Nick Capodice:
What's the argument of Mr. Live at the Improv Jay Floyd?

Mary Ziegler:
The state of Texas had two arguments, essentially saying even if there is an abortion right, these laws should still be unconstitutional. The first was that a fetus or unborn child was a person. So if a fetus or unborn child is a person within the meaning of the Constitution, that person would have, for example, a right to due process of law and to equal protection of the law, which would make abortion rights kind of a legal impossibility. Texas, the second argument was that the government had a compelling interest in protecting life from the moment of conception.

Archival:
Thank you, Mrs. Weddington. Thank you. We're going the case is submitted.

Hannah McCarthy:
So that is the first time this case is argued before the court.

Nick Capodice:
First time -- the court heard Roe v. Wade more than once?

Mary Ziegler:
So, I mean, one of the things that's worth noting, right, is that the court gets ROE in 1970 and there is no decision in Roe until 1973, which is really unusual. Right. I mean, the Supreme Court has slowed, but not three years kind of slow.

Nick Capodice:
Three years. What happened?

Hannah McCarthy:
Well, it's 1970 and the court says, OK, we will hear Roe and oral arguments happen. And the justices are [00:12:00] discussing getting ready to make a ruling. And Justice Harry Blackmun proposed an opinion that will say Texas law is unconstitutionally vague because it's unclear when an abortion would be necessary to protect a woman's life and you shouldn't be able to punish doctors. And his liberal colleagues are like, you know what, Harry? That really doesn't go far enough. So they reschedule the case for reargument. And by the way, Texas Assistant Attorney General Robert Flowers replaces Floyd in that second round.

Mary Ziegler:
And then Blackmun famously spent some time over that summer researching the history of the abortion at the Mayo Clinic in Minnesota, where he was from. And so Roe very much is kind of steeped in Blackmun's sense of the medical history of abortion and what the medical profession thought about abortion.

Nick Capodice:
Was Harry Blackmun a doctor and a former life or something?

Hannah McCarthy:
Not even a little bit. The Mayo Clinic was a former client of [00:13:00] his, but Blackmun's research and eventually his opinion did focus on something that we still talk about today when it comes to the length of a pregnancy trimesters.

Archival:
How did this line of discussion start to evolve in your mind?

Archival:
Harry Blackmun: Well, by really doing a lot of reading that summer and literally getting into the the history of abortion and the the attitude of organizations to it. And again, all that set forth in the opinion. I found it fascinating.

Renee Cramer:
And he's very interested in educating the public about the different stages of pregnancy. And our understanding of pregnancy has changed somewhat since 1973. But for the most part, we still think of pregnancy in this way we have trimesters. So the court is saying, well, what we understand is women are pregnant for three trimesters for nine months, which is really 40 weeks, which [00:14:00] is really ten months. And we know that the fetus is viable after a certain point in its development and by viable, they mean could live unassisted outside of the mother, could be born. Prematurely and survive at the time they put fetal viability at the third trimester, mark, so those last three months of pregnancy.

Archival:
Harry Blackmun: We came up With what it was and didn't know what the trimester system. And that seemed to have an appeal, and that was it.

Renee Cramer:
And what the court said was, gosh, in those last three months, the state might well have a compelling interest in regulating and limiting women's access to abortion. We have the sense that the fetus has developed almost to the point of autonomy.

Nick Capodice:
So Justice Blackmun is the first one who introduces us to this notion of a trimester question when it comes to abortion and Roe v. Wade.

Hannah McCarthy:
And that is a huge element to the decision in this case, which, in case we've forgotten, hinges on this Texas state law that prohibits abortion. And the court ultimately has to decide whether that law is constitutional. Remember, Texas is arguing in part that the fetus is a person, so they have to address that.

Mary Ziegler:
So the court in Roe said, no, there is no fetal personhood because when the Constitution uses the word person, it applies pretty much only post-natal there. The court sort of canvased one of China's leading religious and medical authorities and essentially said there's no agreement on when life begins. And so if there is no agreement, neither the Supreme Court nor the state of Texas can impose one view on everybody else.

Hannah McCarthy:
The court says yes, agreeing with Weddington and coffee. The due process clause argument applies here. A woman has a right to privacy and choosing an abortion falls within that. Right. And also, yes, the state does have interest in protecting both the mother and the potentiality of life, but that varies from trimester to trimester. You cannot criminalize abortion during the first trimester, but things get more complicated during the second and third.

Mary Ziegler:
Essentially, Blackmun's sets out what is his ambition for the case, which is to try to sort of stay above the political fray and to resolve the questions in a way that feels less sort of more dispassionate. Right. I think that was his ambition. And, of course, that reads kind of tragically, I think, to people who have been following it since then, because, of course, Roe became kind of the central point of contestation. It hardly diffused the debate. It probably escalated it.

Hannah McCarthy:
Today we think about the abortion debate as pro-life versus pro-choice, Republican versus Democrat, conservative versus liberal, Christian versus non Christian. And the debate certainly existed prior to Roe v. Wade. But this political divide prior to the 1970s, Democrats voted against abortion about as often as Republicans after Roe v. Wade. The Catholic Church, for example, got louder about abortion. So the people who wanted access to abortion also had to get louder. Republican Richard Nixon looks at all of these loud anti-abortion Catholics and social conservatives and thinks I should appeal to them. We should be the pro family party. But even then, the Supreme Court was not a top of mind. Anti-abortion advocates wanted a constitutional amendment.

Mary Ziegler:
It is really hard to amend the Constitution. So eventually that strategy becomes off limits and the anti-abortion movement is sort of looking into how [00:18:00] they can kind of justify their movement going forward. And the answer that the anti-abortion movement came up with was that the point was to change the Supreme Court and see to it that Roe was overturned.

Hannah McCarthy:
In 1980, Ronald Reagan actually campaigned on appointing anti-abortion justices. Meanwhile, Blackmun's trimester fetal viability principle, the thing that he thought would put a pin in the abortion question, becomes essential to the post Roe v. Wade legal battles.

Renee Cramer:
This part of Roe is where we've had the last 40 years of litigation. How does the state have a legitimate interest in the life of the fetus in those middle months, in the time that it is developing towards viability? Or does it have a legitimate interest, a less legitimate interest in the fetus and a greater interest in the health and welfare of the mother? You will notice all of these constructions pit the woman against the fetus as though they are rivals. This is not how this is not how it had to be. This is a story law has told about women's bodies and reproduction, that when a woman is pregnant and wants an abortion, it's pitting a fetus against a woman. And when the fetus is really small, the woman wins and when the fetus is really big, the fetus wins or the state, that that's a completely constructed way of understanding abortion, health care, pregnancy, and it's outdated. So the question becomes, as we get better technology and the fetus is viable earlier, does that increase the state's interest?

Hannah McCarthy:
Speaking of fetal viability, I told you at the beginning of this episode that when we talk about Roe v. Wade, we're talking about Roe v. Wade and Planned Parenthood v. Casey because Planned Parenthood v. Casey, it got rid of Blackmun's trimester rule.

Archival:
Interviewer: What are the facts of this case and how does it relate to Roe v. Wade?

Kathryn Kolbert: Well, the case is a direct challenge to Roe versus Wade. The law at issue is a Pennsylvania law that was passed in both nineteen eighty eight and again amended in nineteen eighty nine, which enact a series of roadblocks in the path of women obtaining abortions. The reason that it presents a direct challenge to Roe is these same restrictions were struck down as unconstitutional back in nineteen eighty six by the Supreme Court under Roe versus Wade. And so for the court to address whether or not they are now constitutional, that court must revisit the question and determine what are the appropriate standards to judge abortion laws.

Mary Ziegler:
The court declined to overturn Roe, but got rid of the trimester framework and instead adopted what it called the undue burden test. So now, if you want to know if an abortion regulation is constitutional, the question is whether it has the purpose or effect of creating a substantial obstacle for someone seeking abortion. And that, of course, is notoriously vague. [00:21:00] And within the court and outside of the court, people have been fighting about exactly what it means ever since. But when you're really thinking about the fate of Roe going forward with this six current conservative, six justice majority, what you're really talking about is the fate of Roe and Casey, because Roe in the law has already been changed in pretty fundamental ways.

Hannah McCarthy:
What this means practically, is that a state now can limit access to abortion in the first trimester. Justice Harry Blackman was still on the court at this time, and this is what he said in his dissent, that, quote, The ROE framework is far more administrative and far less manipulable than the undue burden standard adopted by the joint opinion.

Nick Capodice:
You know, Hannah, you told us that in order to learn Roe v. [00:22:00] Wade, you have to unlearn Roe v. Wade and boy, have I done just that. But at the same time, the things we associate with Roe v. Wade, all of the debate and legislation and court cases that followed, this is what we did with Roe v. Wade that represents what we still think of Roe. There's the court case, Roe v. Wade,

Archival:
Jane Roe, an unmarried pregnant Girl.There's Harry Blackmun in his research.

Archival:
Harry Blackmun: I put a lot of myself into that opinion.

Archival:
here's no McCorvey in her contradictions. It was all an act.

Archival:
Norma McCorvey: Yeah.

Nick Capodice:
Nick Capodice: [00:22:34] There's Planned Parenthood v. Casey.

Interviewer: [00:22:35] It was initiated by --

Kathryn Kolbert: [00:22:37] That's right --

Interviewer: [00:22:38] Planned Parenthood.

Kathryn Kolbert: [00:22:39] Whenever...

Nick Capodice:
And then there is the political and social division that Roe is synonymous with. Even today.

Mary Ziegler:
Roe has become this incredibly powerful cultural symbol, much bigger than what the Supreme Court itself ever said, a kind of window into how we see lots of things, everything [00:23:00] from gender to the role of the courts in our democracy. And it's changed lots of things about our politics. Right. The kind of the role of the Supreme Court, the view that the Supreme Court is probably the major election issue, how social movements proceed when using tactics. And so I think if you're studying Roe, you're not just studying Roe. You're studying lots of things about the functioning of American democracy and kind of the nature of social change.

Nick Capodice:
I've got one last question, and I think it will help me understand what Roe actually did, how it impacts life today, because there is an enormous push to overturn it. And anti-abortion activists are optimistic that the current makeup of the Supreme Court, which is majority conservative, could mean that the decision is overturned at some point. So what would that actually do?

Hannah McCarthy:
All right. This is a two parter because Roe does maintain, despite Planned Parenthood [00:24:00] v. Casey, that a woman has a right to choose an abortion in certain cases. So what would an overturn mean in terms of health care? Here's Renee again.

Renee Cramer:
Access to reproductive health care of almost all kinds will depend on where you live. So it will be state by state women who live in California, who live in New York. They will have great access to abortion if they want it. They will have great access to prenatal care. Women who live in impoverished areas, rural areas, more conservative areas. Not only will they not have access to abortion, they also and this is documented, really well documented, that in jurisdictions with limited access to birth control, we actually see worse maternal health outcomes and that those maternal health outcomes are desperately bad for women of color. So when a state legislates against abortion, it's not as though it legislates in favor of babies and maternal health. It just gets rid of access to Planned Parenthood. And Planned Parenthood is where women get their birth control, their prenatal care, their post-natal care, their STD testing, their mammograms. So in states where Planned Parenthood is forced out, we actually have worse rates of women's health in general and no fewer abortions, just fewer safe abortions.

Hannah McCarthy:
So if Roe goes away, the decision about whether a woman can get an abortion in any circumstance goes to the states, which is actually an important point because of what it means for people who wish to see Roe overturned. Here's Mary with the second part of the answer to your question.

Mary Ziegler:
Even though I think Roe is an object lesson in the limits of the power of the Supreme Court, Harry Blackmun had planned and expected settles the abortion conflict with this opinion, which, of course, looks laughable almost 50 years later. The irony is that abortion opponents seem to believe the same thing Harry Blackmun did almost 50 years ago. Right, that if they have the perfect Supreme Court decision going the other way, that that [00:26:00] will settle the abortion debate only in their favor. And they're just as likely to be wrong as Blackmun was.

Hannah McCarthy:
Roe v. Wade is remembered as this sweeping landmark decision that gave a woman the green light to have an abortion if she so chooses. But when you look right at it, it's actually a case about privacy, fetal viability and state interests. It's a case with limitations, a case that some would say has lost its teeth already. Still, what we believe about Roe v. Wade is just as important as what it actually says. The mythos and misperception of the case is in large part the reason it stands as one of the most controversial rulings in history.

Hannah McCarthy:
This episode was produced by me and Hannah McCarthy with Nick Capodice. Erika Janik is our executive producer and our staff includes Jackie Fulton.

Nick Capodice:
If you like this episode and you learn something, I sure did and you want more, make sure you follow us on Twitter @Civics101pod and wherever you get your podcasts so you never miss an episode.

Hannah McCarthy:
Music. In this episode by Bio Unit, Ketsa, Metre, The Young Philosopher's Club and Xylo Ziko.

Nick Capodice:
Civics 101 supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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