Roe v. Wade: A Legal History | Part One: To the Court
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Roe v. Wade: A Legal History | Part One: To the Court

Without question, Roe v. Wade is one of the
most controversial decisions. It’s a case, but it’s also a symbol. It’s the only Supreme Court case that most
Americans can cite by name. In a landmark ruling, the Supreme Court today
legalized abortions. Roe was interesting because it did articulate
the right to abortion as a fundamental right. What the Court was saying there was this is
on par with other sorts of fundamental rights: the right to marry, the right to procreate,
the right to take care of one’s children. The Court split 7-2, with Justices Byron White
and William Rehnquist dissenting, as the nine justices made abortion largely a private matter. January 22, 1973, will be an historic day. There’s a certain sense in which Roe v. Wade
was a bolt out of the blue. The Supreme Court had never before even vaguely
suggested that restrictions on abortion were constitutionally suspect. There’s nothing in the history, text of the
Constitution, nor really of precedent that would support the decision. It took what was really a crime in most of
the states in the United States, and in all at some point, and it turned it overnight
into a constitutional right. That cannot help but be controversial. Jane Roe was a woman in Texas who was pregnant
and didn’t want to have her baby, but Texas had perhaps the strictest, harshest anti-abortion
law in the country so that e- even if you were a documented victim of rape or incest,
you still were not allowed to have an abortion. It had the perfect state of facts, even though
we now know they were a lie. They claimed that Norma McCorvey was raped. That was not the case, but it seemed to be
the most sympathetic possible case. There was absolutely no evidentiary record
from the trial court. The case had been disposed of on summary judgment. And so all you had were a limited number of
affidavits. But as far as all of the sort of questions
that swirl around the public policy concerns, there was absolutely no evidentiary record. The case was put before a three-judge panel
of the federal district court in Dallas, and there was a unanimous decision to strike down
the Texas law. I think the federal court in Texas was a little
bit concerned about its own jurisdiction to issue a statewide injunction, and I think
they assumed that the Texas legislature would realize that the law had become unavailable. But before that could play out, the plaintiffs
immediately took it to the Supreme Court. The narrow question that the Court accepted
cert on was whether or not you could access federal courts to make a federal constitutional
claim while being subjected to criminal prosecution. In other words, when a doctor had been accused
of performing an illegal abortion, could they go into federal courts and claim, “Well, I
had a federal constitutional right to provide these services to this woman”? Roe was argued twice before the Supreme Court. It was argued despite the fact that in between
accepting the case and arguing the case, two justices retired. So the Court had a choice to make. It ended up being argued by a very young lawyer
who was basically just out of law school, which is unheard of. That was pretty extraordinary. At least a couple of the justices were deeply
committed to taking an abortion case and wanted the opportunity to address whether there was
a constitutional right to abortion. But the grant for cert was initially very
narrow, and so when counsel for Roe attempted to make an argument that she had some sort
of constitutional right to abortion itself, that was cut off pretty quickly because that
simply wasn’t the issue. As the drafts of the decision were being prepared,
President Nixon nominated Justice Rehnquist and Justice Powell, and so the thought was
that’s kind of a big deal, and we really should have it argued before a full court. And so it was set over for new argument in
the fall of 1972. Because of the two arguments, it strung out
over a long time, because you had two complete Supreme Court arguments, two complete sittings. People talk about Roe against Wade as if it
was something unique that dropped from the sky, dropped from the Supreme Court, but actually
Roe was just the case that happened to get there first. But the lower courts were split. The split wasn’t so much about whether the
woman had a right to make decisions regarding abortion, but whether that right could be
restricted, because what was at stake was the life of unborn children. Roe ended up being a case that had a lot of
compelling facts to it, and it got there faster. Until 1973, the idea that abortion was something
women had a constitutional right to and that states had no authority to restrict was really
an odd idea. That narrow procedural question got transmuted
through the two years while the case was in process to the broader question of whether
there was a constitutional right to abortion.

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