Roe v. Wade | National Constitution Center | Khan Academy

Roe v. Wade | National Constitution Center | Khan Academy

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

2 thoughts on “Roe v. Wade | National Constitution Center | Khan Academy

  • Don Ames Post author

    Nicely done.

  • Fernando Wong Post author

    Of course Roe v. Wade should be overturned since the right to privacy doesn't apply here since the unborn baby is a separate body from the woman's, being genetically distinct and developing as a separate entity.

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