The History and Legal Arguments behind Roe v. Wade (2019)

more in then on Roe v. Wade and tell us a little bit about Norma McCorvey and Sarah Weddington. So Norma McCorvey at the time in 1969 was 21, she already had two children, she learned she was pregnant again, and her friends advised her to claim that she had been raped. They thought that Texas would allow for abortion in cases of rape or incest. This wasn't actually true, in Texas about only for abortions in cases in which a woman's life would be at risk. She tried to get an illegal abortion, but found that the facility that she was looking for had actually been shut down by the police and eventually found her way to two attorneys Linda Coffee and Sarah Weddington. Weddington at that point had had an abortion herself in a Mexican clinic when she was 22. And so I think she understood the stakes of this in a way that others didn't. And Weddington and Coffee actually filed a lawsuit on McCorvey's behalf using the alias Jane Roe seeking a declaration that Texas's abortion law was unconstitutional.

And that was how the case Roe v. Wade got started. So it starts out in Texas and then how does it work its way up to the Supreme Court? In 1970, there was actually a three judge panel of the district court in Texas, which is fairly unusual. And that court declared the law unconstitutional. The Supreme Court decided to hear the case. And actually the process in the Supreme Court was kind of a long and complicated one. Justice Blackmun had initially wanted to write the opinion differently and the court had had Roe in front of it since 1971. And then didn't actually wind up dis, issuing a final opinion until January of 1973. That's interesting. So then in the end, how would you sum up the main arguments being presented by the plaintiffs and the defendants in the case as a whole? Well, Weddington and her colleagues made a variety of arguments.

We will hear your arguments number 18 Roe against Wade? Mr. Chief Justice, and may it please the court? They obviously used the privacy argument that had been made in Griswold. And then I think more forcefully in a case the year before Roe came down called Eisenstadt versus Baird. Eisenstadt involved a Massachusetts law that allowed married couples to use contraception either to prevent STDs or to prevent contraception but allowed single people only to use contraception for the purposes of preventing STDs. So the court struck that law down. And in passing said that if the right to privacy means anything, it means the right of an individual to control when and whether he or she bears or begets a child, I'm paraphrasing. So Weddington and other sort of abortion rights amici relied on that right to privacy and said that it should be broad enough to extend to abortion rights.

They made a variety of other arguments too. For example, they pointed to the 13th Amendment, which abolished slavery and described forced pregnancy as a form of involuntary servitude. They gestured to the idea of equality for women. So a pregnancy to a woman is perhaps one of the most determinative aspects of her life. It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life. And we feel that because of the impact on the woman, this certainly, in as far as there are any rights which are fundamental, is a matter which is of such fundamental and basic concern for the woman involved, that she should be allowed to make a choice as to whether to continue or to terminate her pregnancy. The state of Texas and anti-abortion amici made a variety of arguments too. Probably the most significant ones were first that fetus or unborn child was a person within

the meaning of the 14th Amendment. And what that would mean would be that that fetus or unborn child would be entitled to both due process of the law and equal protection of the law, which would make an abortion right impossible. Texas also argued that it had a compelling interest in protecting life from the moment of fertilization. Now, the appellee does not disagree with the appellate statements that the woman has a choice, but as we have previously mentioned, we feel that this choice is left up if the woman prior to the time that she becomes pregnant, this is the time of the choice. And a lot of anti-abortion groups relied pretty heavily on what they saw as sort of scientific evidence.

So, the fetology as a medical specialty was relatively new back then. So there was a lot of argument to the effect that if you understood what a fetus or unborn child was scientifically, you would have to grant fetal rights. So then, what was the final opinion? How did the Supreme Court sift through that and how did they come up with their final opinion? And what did they base it on? Well, yeah. Initially, Blackmun had wanted to hold that Texas's law was just unconstitutionally vague, which would have been a pretty narrow opinion. Essentially, he wanted to say that it wasn't clear ahead of time when a procedure would be needed to save a woman's life, and that that didn't give doctors enough notice. But a lot of his liberal colleagues weren't satisfied with that. And so over the summer when the court was in recess, he went to the Mayo Clinic in Minnesota, and then developed a very different opinion, which is the Roe opinion that we have now. And the fact that Blackmun was at the Mayo Clinic is pretty evident in the opinion, there's a lot of discussion of the medical history of abortion.

And even the kind of rule of law that comes out of Roe is a very medical one. So in the first trimester, the court held that abortion regulations were broadly unconstitutional, that the state didn't have much authority to regulate at all. That in the second trimester, the state could regulate only to protect women's health. And only after fetal viability, which was the point the court defined as when a child could survive outside of the womb independently, the court in reaching this conclusion relied on the right to privacy and on precedence like Griswold. But framed them very much in medical terms, said, you know, that the abortion decision is something that a woman will make in consultation with her doctor. This was not strongly feminist language about a woman's right to choose, which is basically doesn't appear anywhere in the Roe opinion. The court also rejected the key kind of anti-abortion arguments. So when it came to personhood, the court said that the word person in the Constitution seems to apply only to people after birth.

So it wouldn't have been intended by the framers to include life in utero.