Roe v. Wade | Civil liberties and civil rights | US government and civics | Khan Academy
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Roe v. Wade | Civil liberties and civil rights | US government and civics | Khan Academy


– [Kim] Hi, this is Kim from Khan Academy. Today you are 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 V. 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 for 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 the 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
beginnings of the women’s rights movements, the
beginning 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 number of other states, around, 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 they 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 had been born, a daughter, and she had ultimately signed over custody of her daughter
to her mother to raise, because she was having
a bit of itinerant life, was unable 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 she helped Norma
McCorvey bring this case. But they decided to sue the State of Texas to challenge the constitutionality of Texas’ 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 wends it’s 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 is 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 Blackmun starts out by saying
that, he cites 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, Blackmun 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 contraception. 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 is actually been percolating in the Court’s
decisions for 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 is 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 conscientious 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 McRae
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
was 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 of 2016 in Whole Woman’s
Health versus Hellerstedt. – [Melissa] The case makes
its way to the Supreme Court and in an opinion that’s 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, it’s a
five to three decision, Justice Stephen Breyer
notes that the provisions that were challenged do not offer the medical benefits that
they claimed 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 the national abortion control board. It can not 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 70s, 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 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 19th century about the place of women, about what happens in a society that’s undergoing change,
whether its 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 his case, visit the National Constitution Center’s Interactive Constitution
and Khan Academy’s resources on US Government and Politics.

22 Comments

  • Kenneth Albert

    What does abortion have to do with when a woman joins the workforce? Typical left wing manipulation.
    I am not a hardcore pro lifer though I know their arguments are correct.
    We need to find a compromise (I am aware that it's a disgusting MORAL compromise) I think abortion should be minimized as much as possible. If it is as easy to do (as it is currently) it diminishes peoples personal responsibility and therefore results in even more abortions. A reasonable limitation is no abortion after first trimester.

  • Rudy Dominguez

    The issue of abortion really comes down to whether or not a fetus is considered an actual human being. If it’s not a human being then you can treat it like snot and dispose of it whenever you want. If it is a human being then you cannot murder it, even if that means a girl won’t be able to enter the workforce for a while.

  • Ethan Barnhart

    this is probably the most factual and least politicized presentation of the case that I could find in video form. I see this being a huge topic of political animosity in the near future, and I'm glad I could rely on you guys to explain the essence of the case without any spin on it.

  • Reece Beauchamp

    I don't believe your "right to choose" is more valuable than a "human's right to life." For anyone to think otherwise, is intrinsically selfish.
    Fundamentally, there is nothing in the universe more valuable then one's right to it's own existence.

  • Brandy Nissley

    I remember something from 9 th grade civics… the Federal government can make laws and the state can add to those laws making them more restrictive but the stare can’t relax the laws and make them less restrictive. Is this correct of not

  • Honest Friend

    this is from 14th amendment “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Now you might argue that the baby is not born in the United States so it isn’t a citizen of the United States so it’s privileges and immunities aren’t protected, but it says “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Regardless of whether you are a citizen or not, your life liberty and property are protected, unless you want to argue that the baby is the Mom’s property, and then well you’ll be going along the lines of the justification of slavery, last I checked no human being is property, or are you Democrats going back to the views you used to share. Every human being should be offered equal protection, the mom and the baby should be protected equally. And as for the argument that baby is a pack of cells not a human being so therefore not a person who’s life should be protected, at week 8 the fetuses heart is developed and beating, a packs of cells don’t have heart beats, a heart is not an organelle, packs of cells come together to form the heart. The fetus is a human being who’s packs of cells are developing major organs,

  • Black Hole Guy

    "All men are created equal with fundamental rights the right to life…" Except if a woman wants to have some privacy… Then you got to make it out of the womb irst

  • The Internet Gremlin

    If you can't claim a fetus as a dependent on your taxes and if you can't put a fetus on medicaid, then it's not a human

  • datuputi777

    And my bet those cases are exceptions not the rule.
    Problem with it being law is that the state had to fund it and it pretty much obliterates everyone's rights by saying it was condoned by everyone.
    Idc if it was decriminalized and people do it and gets away with it.
    I care that tax dollars end up in it.
    I care that government is lying that I condone it.

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