Roe v. Wade: A Legal History | Part Three: The Decision
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Roe v. Wade: A Legal History | Part Three: The Decision


When the opinion was issued, there was big
news that day. Lyndon Johnson died. So, I’m not sure that the opinion was actually
page one news in every newspaper in the country. It wasn’t the sort of spectacle that we witness
today with people standing on the steps of the Supreme Court, shouting and waving flags,
ready to speak to the media the minute they’ve read the first four paragraphs of the Court
syllabus. I’m quite confident that they thought that
abortion would be kind of integrated into American life and become acceptable and disappear
as a divisive political issue. It had exactly the opposite effect. So Chief Justice Burger signed Justice Blackmun
to write the opinion. Justice Blackmun, when he was appointed to
the Supreme Court, was considered to be a conservative judge from Minnesota. He had been counsel to the American Medical
Association. To work on the Roe Opinion he spent some time
up in the Mayo Clinic library. He’d been general counsel at the Mayo Clinic. He was very tied into the medical profession. And all these elite groups said it was time
to get rid of the regime of criminal abortion laws. And so I think the justices as citizens shared
that feeling. The entire beginning, essentially, of the Blackmun opinion is all about history and medicine. And it’s about when abortion became illegal
in the United States, what were the forces that led to that. Doctors were very involved in the efforts
in the mid to late 19th century in criminalizing abortion. And it was always seen as a doctor’s issue. And so the American Medical Association itself,
uh, took the position that it was something that doctors should not do. The Court avoided entirely the fact that states
had banned abortion on the grounds that they were interested in children’s lives. They claimed that the laws banned abortion
because greedy doctors wanted a monopoly on practice of medicine and abortion was being
done by unlicensed or midwife, uh, practitioners and the doctors wanted to rein in and have
control of the medical profession. It seems a bit paternalistic, uh, to us nowadays
to focus on the doctor-patient relationship rather on the woman’s own right. But if you read the opinion, we have to remember
at the time doctors were really, really well respected in American culture. So focusing on the fact that, that a woman
is doing this in consultation with her doctor, I think, at least Justice Blackmun thought,
lent some intellectual and cultural heft to the opinion. It’s not really a decision about the rights
of women. It’s the decision about the rights of doctors
because doctors were the only ones who faced prosecution for performing an illegal abortion. And it’s really a case about the right of
doctors to practice medicine as they saw fit on behalf of their patients without risking
criminal prosecution. And from there he starts to go into this evaluation
of what is at stake here, um, and that’s where we get these two sides of the coin. One is women being able to make decisions
about when and if they become pregnant and carry a pregnancy to term, you know, and the other side the state having
interest in potential life and then how we balance those things. And the way he figures to balance those things
is through this idea of the trimester framework. In the first trimester when abortion was relatively
safe, states could have no regulation really whatsoever. In the second trimester when abortions became
more dangerous, they could have regulations that were directed to protecting the mother’s
health and safety. In the third trimester, many people think abortion
is banned, but what the court said is states could ban it except for “life and health reasons,”
but then defined health to include all factors- physical, psychological,
familial, or the woman’s age, relevant to the well-being of the patient. So in other words, abortion at all times for
all reasons with no limits whatsoever. Roe basically creates a floor. You can’t go below this, right. So you can’t completely outlaw abortion services. You can regulate in really significant ways. You can make it harder for women to access,
but you cannot make it completely illegal. There is not a recognition of fetal personhood,
although the state does have an interest in unborn life. That interest doesn’t sufficiently come into
play to outweigh the woman’s choice until the fetus would be viable outside the womb. So when the US Supreme Court decided Roe and
they talked about Roe as a fundamental right, that was really important because the fundamental
rights analysis is a strict scrutiny analysis. And so it requires a state have a compelling
state interest and that they regulate in a way that’s nearly tailored to achieve that
compelling state interest. The state of Texas argued that abortion laws
were directed at protecting women’s health, that abortion could have long-term ill-effects
to women. But more importantly, they argued, that abortion
was intended to protect both the mother and the child, that there was a child from the
moment of conception and that that child was worthy of legal protection just like any other
child. Yes, states were concerned about the lack
of safety of abortion. But they were actually very, very concerned
about not killing life that is human, that is vulnerable and that has no one else to
take care of it. Justice Blackmun says there’s never been a
concept of fetal personhood in the law. He looks back at all the cases having to do
with the right to privacy. And he said, “We look at all of these together
and we find we have adopted a view of a right to privacy that is broad enough to cover a
woman’s decision whether or not to continue a pregnancy.” I think the Roe decision has proven to be
a deep wound in the body politic. The Court took upon itself an issue that was
being addressed throughout the country with vigorous advocacy on both sides and finding
some success, for good or for ill, by the change of laws throughout the country in a way that
there’s no textual basis. It overturned the laws of all 50 states. It was pretty radical. There was no even real build-up. And I think people who are philosophically opposed
to abortion feel the Supreme Court decided that they have nowhere to go in the democratic
process and their views are just not valuable and that really angered people and, and galvanized
a movement. The Court anchored Roe in precedence of the
time, particularly in the precedent from 1965 that has established a right to use contraception. All of those cases come out of an understanding
of the 14th amendment protection for due process. And that’s something that’s been with us for
quite a long time. The Court doesn’t go around finding fundamental
or even strong constitutional rights every day or every year even. If we in fact believe, and I do believe, that
the right to terminate a pregnancy is one that should exist in our constitutional order,
then I think it should be federally protected. The fact that the Supreme Court decision created
the basic right I think was really important. It ensured that this debate would continue for 40 plus, now getting on for 50, years. Whatever the policy should be, the Constitution
didn’t settle it, and the Court was wrong to impose a particular policy. When people think back on it, they’ll think back to that phrase from Justice White’s dissent: Roe was an act of raw judicial power.

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