constitution center. exploring the human story and constitutional drama behind 12 historic supreme court decisions. number 759, petitioner versus arizona. roe against wade. 01quite often the decisions that the court took that were unpopular. let's go through a few cases that illustrate, very dramatically and visually what it means to live in a society of 310 million different people. they have had to stick together because they believe enable of law. host: good evening and welcome to c-span's "landmark cases" and that 12th and final in our series. the roe versus way -- roe v. wade that rocked 40 years ago. we will learn more about the next 90 minutes. we will start with the cbs evening news report on the night the decision was announced. evening, a landmark ruling the supreme court legalized abortions. a majority in cases from texas and georgia said that decisions to an pregnancy during the feet -- first three months belongs to the woman and her doctor, not the government. thus the anti-abortion laws for 46 states were rendered unconstitutional. >> to give a woman freedom of choice is extraordinary. >> i think the judgment of the court will do a great deal to tear down the respect that was previously accorded human life in our culture. continues.ebate we will learn more about the history of this case, what led to the court making the decision, and some of the effects from society. release -- melissa murray teaches at university of berkeley. welcome to our series. melissa: thank you for having me. host: clark wrote the book on roe v. wade. his day job is a senior for life.an united's of thank you for being with us. clark: thank you for having me. host: this is a landmark case, and what the constitutional issues were provided by the case. melissa: it is a very controversial decision. it criminalized abortion throughout the united states. the united states in states made a portion of a crime. any woman wishing to terminate pregnancy had to go to the handful of states that did permit it, or leave the country entirely. the fact that the court made this decision was an amazing thing in 1973. it is a view of the democratic process, and what was happening on the ground in the states and the part feeling it needed to intervene. clark: it was a sweeping decision. created a public health vacuum because there were no abortion laws left on the books of every kind. finality.ggest the new york times came out on the 23rd and said the court settled the issue. the irony is, it has done nothing like settling the issue. it has been an engine of controversy as a number of scholars have said. itwas a sweeping decision, isolated the u.s. as one of only four nations of 100 95 across the globe that allow abortion for any reason after fetal viability. been these programs have interesting because of your participation in them. if you are new to the series, here is how you you do it. twitter feed. just please use the #landmark cases. there is also a discussion underway on our facebook page. find c-span on facebook and you will see the video. you can join the commentary. we have two phone lines divided geographically. we will put the phone numbers up for the next 15 minutes or so. we'll go to calls in about 25 minutes past the hour. let's do the historical context of the 1960's and 1970's, and what was happening in the country societally in regards to abortion regulations, women's rights movement, and the backdrop for the court taking this on. a perfectt is kind of storm of different events. you have women rights movements gathering steam on the idea that women are more political in society. movementalso a strong within the criminal law to decriminalize areas of intimate rights that the government had no business in treating into. the law was a hot lead of discussion at the time. the american law institute got involved with the penal cold project, which liberalized criminal laws on prohibiting consensual sex, adultery, things of that nature, and a portion was one of the topics. we have a map, and you states andhis, the the various abortion laws. i will put that on screen to show states where it was legal, and the limited basis. the talk about the state legislators and how they are approaching -- how there approaches vary. virtuallyuntil 1967, every state except for three and four prohibited abortion. even those that allowed it for certain reasons, i think it limited it, certainly, no state allowed abortion. in 1967, for a period of four years, there were four years of state legislative sessions in which the state starts to enact exceptions to the traditional prohibition. in 1970, that legislative reform comes to an end. and 1972, before the decision, no state legalized abortion by legislation. the reform effort really seem to come to an end after the four years. host: why was that? because think it was opposition and public opinion, and the movement had grown between 1967 and 70. 1972. 1971 and they really did not win anything in the state legislators. host: our producers put together a video that tried to capture the women's rights movement of that time. we will look at that next, it is just over a minute long. [chanting] >> the majority of american women are working outside their home. most of them are working at low-paying, relatively low jobs, often in a dead end profession. very happy housewife, a very happy mother, i feel that i have so many things to do with my daughter. >> i think there is a concern for all women. childbearing, limited access to contraceptive -- contraception. mostly for the young people in our audience, and we do have them watching the series, high school and college, they tried to capture a little bit of what is happening. the video is really fantastic. you really see a generational shift. for years who had taken on a traditional feminine role. it found itself -- and younger women who were clamoring for more options. employment, in education, and understood control of the reproductive capacity as central to their opportunities. host: what can you add to our knowledge? clark: the history is that the and leadersement really came late to the push for abortion. the push really starting in the 1950's from doc turners and population control movement -- from doctors and population control movement. rockefeller was a big thunder of population control in the 1950's and 1960's. feminist leaders do not come on until 1968 and 1969 and 1970. they relate to the so-called abortion reform movement. one thing came on. they certainly push the issue very hard in the early 1970's. host: what was happening in congress at this time regarding these issues? clark: population control was a big national issue. was elected nixon president in 1968, 6 months after he became president he gave a national speech about population control. he appoints a national commission, which happens to come out with a report endorsing --ulation -- abortion for endorsing abortion for population control. is writing his first draft in roe versus wade. host: we will move to understanding the woman who brought this case to the supreme court. you were talking about the 50 states. this was a texas law. would you explain the texas law that was being contested? clark: texas law was one of the 30 or 40 that had prohibited abortion, except to save the life of a mother. although there were debates in the texas legislator, as there was across the state, texas retained its traditional prohibition of until the time the case was filed. roe: the case had the name v. wade, but that is a pseudonym. rummaginghe is macquarie. she was a young woman who was married to a young man. there were 24 when they married. she was already the mother of two women -- to children when she found her self pregnant. father was often abusive. she thought to terminate her pregnancy and was not able to in texas. texas prohibited abortion. she tried to say she was a victim of a rape that there was no police report, so she was not able to take it vantage of a loophole. in certain cases like the wife and dust life and health of the mother. she found herself going to an adoption and abortion lawyer to make arrangements for an adoption. with a womands named sarah, who at the time was thinking of filing a case challenging criminal abortion statutes that was in a need of plaintiffs. and the rest is history. is described as a carnival worker. she herself said years later that she had no real understanding of the legal system and thought the case would be settled in time for her to get permission to have the abortion. courts do not work that quickly. how did she proceed in the late -- legal system? would you walk us through the process for her and when she decided to sign up for a legal approach? clark: this case was one of 20 that were in the courts. in this particular case she got pregnant in the summer of 1969. she did not have an abortion, she gave birth at the time her case was in federal court. sometime in january or march of connected with linda coffee, her cocounsel. the two of them filed the case in march of 1970. of months as a couple later, i think it was june of 1970, they have -- they had an oral argument in dallas. by october, they were headed up to the supreme court. there was no intermediate appellate review because three judge district court's could go straight up to the supreme court without any intermediate appellate review. ironies about the , and one of the problems about roe v. wade. this was no record of case. all of the details we might play out about norma were not in the opinion. were was no trial, there no expert witnesses, no presentation of evidence. in the decision, written by justice blackmun, you get only the bare bones that she was a single woman who was not married and got pregnant. that hersweeping particular circumstances are not really significant to the outcome of the decision. is impart how roe v. wade is different from all the other cases discussed in this series. when you think of miranda, gideon or marbury, those are factual decisions and the courts and opinions go through the facts in a great deal of detail. there was no fax or trial in this case. facts or trial in this case. that made an unusual decision. melissa: henry wade was interestedly with sarah, he was one of the judges on the panel. famously the woman who sworn lyndon b. johnson in air force one. by all accounts, a fair-minded man and a good prosecutor who found himself in the middle of a -- host: would you talk about the ruling by the federal panel. on what grounds that they rule on the case of understanding the legality? the district court ruling is interesting. there is a lot of discussion of privacy, but a lot of discussion about the ninth amendment, which is known in legal circles. not all ofre is that the rights and the constitution are enumerated. notconstitution said, it is meant to be exacted, there are other kinds of rights that might be divined where there are no judicial interpretations. that three judge panel talks about the ninth amendment being for also having the rights of abortion. there was privacy that was divined through judicial interpretation. host: was it at all significant in the federal review that she once claimed she was raped and then disavowed that claim? was not, the allegation of rape was not in the federal court opinion or the supreme court's decision. the fact that she later recounted that is really not relevant to the decision of the future of the decisions, the courts themselves do not rule high upon the allegation in making that decision. that is what is problematic about roe v. wade. it was decided on motion to dismiss, motions for read judgment, there was no trial, no experts, it was not decided to the normal course of the adversary process. that lays the foundation for the problems that i think we have seen over the last four decades. host: on twitter, when a case is determined that is later proven -- it, in this case is it is not a relevant question. in a general sense, can you answer that question? i think the fact that ped claimed she had been ra in order to gain access to abortion to suggest how difficult it was to get an abortion and reproductive care. i am sure she was not alone in claiming that she had dire circumstances, whether it was rape or whether her life was in peril whether she would experience psychological trauma to gain access to that type of procedure. lots of women were doing at the time. host: mccain tell us about sarah? -- what can you tell us about sarah? how old was she? clark: she was a couple of years out of law school. this was her first contested case. you have to hand it to her to jump into a major federal court case like this, one that becomes a major federal court case and to take it up to the supreme court, argue it twice and win. it is an amazing first effort i a law student, or a young lawyer coming out of law school. casess one of 20 or 22 that were in the courts for many different states at the time. you might have had an amy smith or a mary jones, but the court happened to take these two cases, instead of the 18 or 20 others or could have taken. host: we have to talk about the second case that is confusing. before we do, you have something you want to say. ofissa: sarah, the issue abortion is personal. she was pregnant, and he -- and she and her future husband went to mexico to get an abortion because she could not secure when in texas. she felt these issues in a personal way. i think that informed her decision to take on this case, even though she was only a few years out of university of texas. host: would you talk about the second case. clark: the georgia case is doe v bolton. a married woman who was using a pseudonym revealed her identity years later as sandra cano. similarly, they were challenging the georgia statute, but that is different than the texas statute. the georgia statute is a that hadenacted law enacted various exceptions into the georgia law. it allowed abortion to save the life of the mother, but are allowed abortion for rate, for indications of fetal deformity, reasons, andalth pute three exceptions were in in july of 1968. it was not in effect for long to tell what happened. bolton that was decided without any trial or expert testimony. it was also decided on motions to dismiss. again it which traded to the supreme court without any appellate review. host: we learn that the supreme court heard the arguments in tandem and they meant for the decisions to be read as conjoined decisions. melissa: correct. the case of the name of row. melissa: it is with noting that doe was a reform statute inspired by the penal code of the modern abortion statute. it had tension between reform a repeal. by the time the statute and doe was promulgated, there was an appetite for something that did more. this did not come at a women and only made a modest impact for women who wanted to terminate the pregnancy. something more repeal was actually needed. host: our last case was chief justice earl warren. this case about the new court, we will learn a little bit more about the dynamics in that core in a couple of minutes. i want to take telephone calls. he says, what you think would've been different if there were experts? clark: it would've provided the opportunity for them to explore what data would have existed with respect to abortion. what would be the medical experience, the social logical experience, the impact on women and unborn children under texas's law, or under the georgia law. the court in the dove versus . bolton case had no law. the impact of hospitalization requirements in georgia. all of the assertions of sociology, history and psychology in the roe v. wade of -- boltonlton are based on assumptions. host: do think there would've been a difference if there was testimony? i think there would have been a diss -- a difference. you would've had more social context and discussion of the german measles crisis, which had suffering from german measles to seek abortions. there would have been discussion -- 1960's that caused a fax. there would have been more discussion of women who were close out of access to abortions because of criminal prohibitions and the state having to seek medical care elsewhere. that would have been part of the record and could've made for a more wholesome discussion. host: let's take our first telephone call. josh in algona, iowa. does the trimester framework still apply at abortion restrictions today, or is that overturned in casey or justice of conard talks about viability being estate interest of the fetus. the justices believed the time that this was a good compromise, considering worn burger joined the majority of opinion and was not a liberal justice? host: we will save the second question. in casey, planned parenthood versus casey in 1992, wadeourt overhauled roe v. . they abandoned the original rationale and adopted a new rationale. the trimester and turned it into a by mr. -- bimes ter. liabilities.tain but there is no trimester guideline. is terry from palo alto, california. welcome. that,m really interested in the first clip it showed the context of being a feminist and civil rights introduction to the abortion rights discussion. i am wondering if, going beward, if the case would more fairly considered on civil rights terms, rather than where it seems to be going in terms of trap laws and so forth. doctor,oman and her being asserted as the people standing might be compared to a man and his doctor having the right to make ifally momentous decisions they might comment on abortion rights as civil rights? melissa: i think you have pre-staged a line of arguments that justice ruth bader ginsburg authored. roe v.ously criticized wade reliance on the privacy doctrine and said the decision -- that we should have thought about abortion. essential tos women's equal citizenship, rather than cloaking it in the guides of privacy. that would have addressed the court issues at the heart of it. route would admit that roe v. wade was wrongly decided and that the original rationale was wrong. it would simply ignore a major state interest that the court has set exists. the states have an interest in maternal health, but has an interest in life of the unburned -- unborn child. that would ignore one state interest that the court has recognized since 1963. larkin on twitter makes this comment. the fact that they have to need -- use pseudonyms shows how difficult society treats women. case also a pseudonym? clark: yes. host: next is david. anotherthank you for great series by c-span. my question is, did the court at any point in time discuss when does life begin? i would like to know with both of your guests, when does life begin? date did it in a dismissive way. there was no evidence, but they do not have evidence about a fetal development in the record. the attorneys, who argued in ore doe did address that. the court dismisses it and said that we and the majority opinion -- the court says, we are very familiar with the fact that fetal development -- fact of fetal development. then they decide that the unborn child is not a person under the constitution, and not entitled to constitutional protection. host: anymore on that answer. richard in st. petersburg, florida. caller: this a a person who does not exist prenatally. at three and a half months you are not a person. we have had a lot of bigotry and our society. do they have souls. hopefully, one day we will outgrow such stuff. if anyone were to submit a paper to a science journal with doubt that a fertilized egg of a gorilla did not represent an individual new guerrilla, they would be left to sworn around. our gentleman brought up a very important point in the case. in the case before congress if the and asko on abortions, at least there was the opportunity to have a federal rhetoric. out arehe things thrown saying, this gruesome procedure regarding taking the brains out of the baby. you do not have to worry because the anesthesia given to the mother kills the baby. the president of the american college of anesthesiologists had to step in and say you are endangering women and baby over the country who are for going necessary other things. wouldg them that they kill the baby with anesthesia procedures. response for that color? caller.- ? clark: we have learned a lot more about fetal medicine and fetal development. one of the interesting things about the original decision in roe versus wade and the arguments, you can hear the -- you can read the original descriptions. the word ultrasound never appeared in the original because itr brief only came on the commercial market in the united states a few years after roe versus wade decision. it change public opinion. the second observation i would make is that, in the court's most recent decision, which was , thed about in 2007 majority opinion does recognize more specifically been previous decisions that pregnancy involves a living human organism . that is perhaps most expressed that the court has been in the 42 years. justice egg knowledge the fact that medical knowledge is that a certain state that would continue to evolve. in various medical procedures attended lectures. and arguments you have back to minnesota for the summer and spent much of the summer at the mayo clinic researching abortion, history, procedures. opinion hasime, his a very long description of the medical history. as clark says, medical technology was not nearly as advanced as it is today. the flat kinds of fetal monitoring is something we had not had. this idea that we would have -- of knowledge of fetal the fetus is not something we had. host: what kind of court did he administer? melissa: it was a very different chief justice than earl warren. it d c circuit- judge before being appointed to the supreme court. he was a lifelong friend of harry blackmun. man in berger's wedding. it was berger who suggested harry blackmun. he was a champion of harry blackmun's. i think when he joined the court, berger really expected that he and black and would be of a single mind. they called them the minnesota twins. there was a -- and their judicial philosophy verged substantially. roe v. wade was the beginning of that. by the end of their lives, their friendship was really in tatters. famously idiot credit -- video credit and that war on members of the court. ready toit court was hear -- when the court was ready to hear it did not have full confidence. clark: the court takes the case in april of 1971. they took the case is to decide younger versus harris and its application. younger was a divisive case within the court that was decided to 60 days before the doe. took orroe and they were trying to see if they from state court into federal court. that general scenario applied in roe and doe. they took these cases to decide whether it applied and knocked them out of court. a decisive moment comes in september of 1971 when justice black and justice harlan retire within the space of a week due to health. next week just as harlan does at the end of 1971. that reduces the number of justices from nine to seven. if flips the balance of the empowers a temporary majority of four justices to decide the cases. for 15 weeks, between september of 1971 and january of 1972, there are 15 weeks there when the four wanted to side is many cases as they want, as they can, and they wanted to side roe v. wade. they saw these two cases and the decide that it is an opportunity to use them to declare a right to abortion with abortion laws. they want to do it before vacancies can be filled. they created such momentum that by the time pal and rehnquist and, it is primus decided the question is how they will be written. even if they have seven, chief justice burger has a small committee. to basically pick up the ones easy cases that they can decide with seven justices. to think out the controversial cases and only focus on the ones that will be uncontroversial. that theyrites misjudged roe v. wade. they thought it would be a straightforward application. in fact, it is a much more controversial issue and harry blackmun says we really bubbled that. host: the court considered roe abortion laws would criminalize all abortions except those required a medical advice to save the life of the mother violates the constitution. second, does the 14th amendment due process clause, including the right to obtain an abortion? third, are there any circumstances where a state may enact laws prohibiting abortion? was her that pregnancy by the supreme court render her lawsuit moot? we will listen to some of the first oral arguments with 26-year-old sarah redington and from assistant attorney december 13, 1971. >> regardless of the circumstances of conception, whether she was extremely immature, she has no relief. so a pregnancy to a woman is perhaps one of the most determinative aspects of her .ives it disrupts her body, it disrupts her education, it disrupts her employment and disrupts her entire family line. we feel that, because of the or any on the woman, rights that are fundamental, it is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy. there is nothing in the united states constitution concerning birth, contraception or abortion. the appellee does not disagree , that theppellate's woman has a choice. as we have previously mentioned, we feel that this choice is the woman's, prior to the time that she becomes pregnant. some of our goals here is to understand the people involved in these cases. i have written a number of descriptions of the case and how it was presented. peter irons suggest that the justices were frustrated by the end of this argument because the attorneys did not give them constitutional reasoning for their arguments. can you add more to our understanding of what happened in the courtroom in that day? clark: because they took these cases to decide younger versus --ris, the first arguments and again, listeners can hear the arguments and hear the transcripts, it is best to listing to the arguments and read the transcripts so you don't miss anything. the first arguments are mostly consumed with questions about jurisdiction and procedure. questions like, who has standing, is it moot, who should've brought these cases, should they have gone to the court of appeals first? there are very few substantive questions and answers until the very end. i think at the end of the first argument, one of the attorneys for the plaintiffs sums it up. we appeared -- we appeal to the privacy of the ninth and 14th amendments. it kind of ends in a rush like that. the first arguments are consumed with procedure. host: or marketing you tell us about these two attorneys question mark -- attorneys? of what is going on here is a question of constitutional avenues. one of the things the parties focused on was whether the texas law was they are at there is very little -- was vague. there is for a little discussion about it. there is some misogynistic moments when jake lloyd, who is arguing for the state of texas notes that these two pretty young ladies are sure to get the last word. he plays this for a laugh and it failed miserably. he is greeted with stony silence. it looks like to justice hornberger is about to come down and discipline lloyd himself. clark: i understand that actually playal that tape for the classes and students as the hell not to argue a supreme court justice. melissa: never do this. host: john on twitter said how could an attorney. a sexist joke was a good way to start an oral argument, was he the best they had? , they obviously not replaced him with another attorney for the second argument. out with a bad joke and argument goes down from there. from what we know about the conference process, a lot of frustration developed among the justice. tell us the story of what you know about what happened there. melissa: one big question was, which case would actually lead? was the oneught doe that had less consensus. there was broad consensus that wasstatute in roe unconstitutional, but mostly for reasons of unconstitutional vagueness. douglas, who was the most senior justice in the liberal wing of the court felt that, because there was no that there wase a obligation to assign that the opinion should've been hit. warned burger did not see it that way. he assigned harry blackmun to write this opinion. went off to write. what he wrote was quite fair. only 17 pages, most of it dealing with the judicial ability issues. only three pages dealing with the actual merit. the full court felt it unsatisfying. he exploded with rage over the assigning of the opinion, what happens behind closed doors? i think it is important to understand that when berger replaced oral warren, the liberals on the court cannot stand berger. campaigned against the war in court, he appoints berger to change the warren court. berger is received with a great deal of trepidation and skepticism at the supreme court. this is only his second or third charm -- term on the court. they are very skeptical of him on the court. his assignment of opinions was viewed with skepticism. douglas did doubt his integrity. with rehnquistry joined the court, burger makes a motion have the cases we argued. douglas and brennan are very skeptical about this because they think it will slip the balance a result instead of a 4-3 decision, a 5-4 decision against abortion rights. then that crisis renews in may blackmunwhen justice distributes his first draft. the motion is made to be argued. the justices explode, especially justice douglas. he writes a scathing dissent that he wants to issue, before the end of the term, defending -- condemning berger for allowing the manipulation of the court. dissent, but its links into the press and is on the front page of the washington post on the fourth of july weekend. it gets him a front page of the new york times the next day. it raises tension within the court. to reargue and it is re-argued in october of 1972. a presidential election going on. as we try to teach people about the court, the court always positioned itself as being distant from the political process. in case after case in this series, we have learned that there are influences about politics that really do underway into the core in its proceedings. in this case, the election dominates the landscape and the backdrop in which the court is doing all of this. nixon is an interesting figure is in favor of liberalizing abortion access at one point during his career. as he takes on the much more liberal mcgovern, he begins to play up his own antiabortion leanings and elaborates his stance on crime and becomes more articulated. he fell anti-mug of her in and it works. he defeats mcgovern and a landslide. the court speculated, and i think there is strong evidence delays releasing be opinion in roe versus wade until after the election. and after nixon is inaugurated. released on generally 22nd of 1973, just after the nixon inauguration. there was a decision delayed because of a presidential inauguration. we will listen to more -- the second oral argument. there is a new attorney representing the state of texas. attorney general robert flowers. him thatanything about is important for people to know? clark: he was assistant attorney general who did a better job. arguments are horrible and limited by the fact that there is no trial, there is no record, there are no proceedings. the justices asked the attorneys about substance in history, and about abortion. they have no basis for answering. the jay floyd argument and robert flowers argument, there are times when attorney say i don't know it is they have no factual record on their answer. host: let's listen. it is october 11, 1972. >> under the federal constitution, the person for the purpose of protection of due process law. >> all of the cases, the prior history of the statue, the common-law history would indicate it is not. >> would you lose your case if the fetus was a person. >> than you would have a balancing of interests. >> you will be balancing the rights of the mother against the rights of the fetus. >> it seems to me that you do not balance constitutional rights of one person against the mere rights of another. >> but it is the possession of the state of texas that upon , asent we have a human being present within the concept of the constitution of the united states. is it not true, or is a troop that the medical profession is not an agreement as to when life begins? >> i think that is true, sir. standpoint,man medically speaking, we would say that at the moment of conception everyhe chromosome, potential that anybody in this room has is present from the moment of conception. >> dean you speaking of potential of life. >> on the seventh day i think the hard start speeding. what is different about the second time around? the judicial ability issues. also, more of these lower court cases about abortion i have trickled up. one of the things she talked about in her argument was a connecticut case. courtecticut district judge had stepped down antiabortion statutes on the ground that it violates the right to privacy. fundamental constitutional rights are discuss, as well as the ninth amendment. there is more constitutional growth, as opposed to the one that happened in 1971. host: we will hear next from harry blackmun himself from being an conference and what it was like to be assigned the opinion in this case. let's listen to herbert in chicago. have a couple of questions, or points. any of the decisions by any of the judges talk about when life begins in the decision. also, where there any friends of the court reefs file on behalf of the unborn child? i will hang up and listen to your response. host: would you answer it for him again? justices, only in passing, talk about fetal development. brief thata mika's were fouled represented pictures of fetal development and life -- prenatal life. in fact, the attorneys argued it. sarah weddington and the texas attorneys in roe versus wade, but there are the arguments of transcripts in dover's is bolton -- doe v. bolton. dorothy, who was the assistant general for georgia, argued old rounds of arguments. she is regularly touted to be the best oral list of all the attorneys in both cases, in both rounds of arguments. -- and hear her listen listen to the argument. she made arguments about the constitutionality, but also about fetal development and a very strong element in support of the georgia statute. caller: i want to ask the , is roe v. wade established law, or is there any case that comes through the lower court system that could overturn roe v. wade? one of the issues in the current presidential campaign is, if you vote for candidate x, or candidate y, the supreme court might be changed by voting for that particular person who might appoint certain justices. is it established, is it safe, or is there a case coming through them i overturn it? melissa: is it safe is a different question. you could have a decision that completely overrules roe v. wade, we have certainly seen the court overrule up and they believe were incorrectly decided in recent years. i think the more likely thing to roe's that my in danger legacy would be the chipping away, which we have seen over time. the idea of a complete overruling my be remote with the idea that there might be incremental restrictions on the force of the decision. it might be something to think about. host: with there be a legislative response? states are often regulating to protect maternal health and fetal life. that creates the cases that come into the courts. it isd add that overhauled. the original opinion and roe v. the has been superseded by opinion for planned parenthood versus kc in 1992. a completely new rationale. unsettled.letely could revisit roe v. wade. they will not do so in the short term, in any case. perhaps the caller was also , by theto the fact that time of the next presidential enough duration, for justices will be on the verge of 80. the next president may affect the future of the supreme court for the next quarter century. it is an overstatement to say roe is to prompt. it affirmed the essence. e survive core of ro kc, even as other aspects of abortion come out. court ruled 7-2. i want to ask you how we got to that vote, but let's listen to keith in minnesota. talks inhere has been all the discussions about the rights of the unborn and the rights of the mother. has there ever been discussion paterturn of rights -- nive writes? melissa: in other cases. there is a question of a provision in missouri love that requires meant -- women to get the consent of her husband. both of those provisions are invalidated by the court in those cases. other supreme court cases deal with paternal rights, at the -- so a 1970 when kay's called family versus illinois, which considered the rights of unmarried fathers. those decisions interact that are not necessarily understood. host: let's listen to justice harry blackmun about writing this opinion. we will learn about how he got the other justices to sign on. conference,t the after the first argument, the thef justice sent sensitiveness of the argument. probably preferred not to assign it to himself as he could have. also were personal reasons , for family reasons i think. , i think youglas , but i don'tse think he misunderstood this comment on my part. he was in the waning years of his service. he was not writing as well as he years and would have treated the case rather preemptively. he was the only roman catholic at the court. i think it resulted in his disdaining a lot of abuse. i don't the he wanted to write it, but i think he was firm in his view. and one could go down the same way with thurgood marshall. he was the only african-american at the time on the court. i think it would be hard in a little unfair. interesting backstage dynamics explained by the justice at the heart of all of this. what did you learn there? melissa: i think it is great to think about different personalities and how that affected the way the decision was assigned. he really wanted to write his opinion. he deeply invested after the first oral argument. he spent time fighting an initial draft when there was a motion for reargument. he worried that after all of that investment, he would not be the one to actually write the opinion, that it would be given to another justice. maybe one of the new justices who joined the court. he protested little too much. there were reasons for the others not to write it, but there were reasons he wanted to write it. host: i would like to flip the bill with the four questions and go through them. -- i would like to pull up the bill with the four questions and go through them. what would you like to say about the dynamics? clark: it was in ie -- it was an unusual time at the courts. there were the two vacancies at the time. of turmoil lot within the court that created a crisis within the court at a number of points. that,s interesting is when justice powell and justice rehnquist joined the court, a think they had created something momentum that they could not have reverse the momentum if they wanted to. at the end of the day, justice powell join. at the very end, chief justice burger joined. it switch from a 6-3 decision to a seven-to decision. host: here are the questions. that criminalize all abortions except those requiring medical advice to save the life of the mother. the court said yes. the 14th amendment due process law protects a right to privacy, including the right to abortion, yes. roe'she fact that pregnancy was our determining a naturally in the court said no. here 50 pages in total. it is a quick glance at his argument. privacy, whether it be found in the 14th amendment, the concept of personal liberty and restrictions upon state action is brought enough to encompass the woman's decision whether or end pregnancy. ssent, i find nothing in the language of the history of the constitution to support the court judgment. the court fashions a new constitutional right for pregnant mothers and invested to overwrite existing statutes. the people and legislatures of the 50 states are constitutionally entitled to theh the importance of continued existence and an element of the fetus on one hand against a spectrum of possible impacts of the mother on the other hand. the court that day, justice blackmun invited his wife to come to the board. how often does that happen in court cases where the justices read their opinion from the bench? a short summary happens now and then. it was not out of the ordinary. host: what do we know about the dynamics in the courtroom that day? melissa: we know justice powell sent a note to justice blackmun's wife, telling her she should be proud of her husband. powell was one of the newer justices on the court. he was with william rehnquist. he was kind of a wildcard. pushedn was glad when he to expand the concept of the state interest and regulate abortion coming into being. blackmun wanted to leave it at three months and powell pushed him to expand into viability. host: in terms of history of the country we learned it was after the next inauguration. the day became historically notable. lyndon h johnson died that day. that dominated the headlines. how long did it take for the media to catch up with the importance of this story? clarke: it is on the front page of the new york times below the fold. the media consistently says the right to abortion is within the first three months. we know that is inaccurate. does the initial message the public got about roe v. wade. when you look at roe and doe together and look at the viability rule in roe v. wade, it creates a health exception after viability in which the court defines health as all factors of physical, psychological, familial, and the woman's age related to the patient. unlimited health definition requires the states to allow abortion even after fetal viability. the press got it wrong and has continued to get it wrong. host: for our final half-hour we always talk about the impact of this decision on the court and on society. we will begin with harry blackmun talking about what the public reaction was after this decision. there were the expected comments to the effect of, your mother should have aborted you, or, i have been praying for your immediate death. much of the correspondence is a beauty. i suspect i have been called every possible hypothetical name, author of a new dred scott opinion, hitler, butcher, pontius pilate, murderer, madman, and the like. run chiefi can out justice roger tony. host: reaction? melissa: he certainly got blowback for this. just as there have been calls to impeach earl warren, there are more vociferous calls to get rid of harry blackmun. this was the defining moment in his life as a justice. he would go on to do many great things in the court, but he was defined by roe v. wade. host: what are your comments when you hear this? clarke: the justices completely underestimated the public opposition. there was discussion in various memos and deliberations in the two years leading up to roe, this will be criticized by the media. but of course the public opposition and public anger has been more significant. it resulted in hundreds of state laws attempting to limit the right to abortion as well as constitutional amendments introducing congress and congressional hearings from 1973 to 1983. justices completely underestimated where the public was or what they. -- or would be. host: let's go to phone calls. next up is nathan in bishop, texas. underestimated where the public was or what they. go ahead please. caller: i had a question. hold on real quick. why couldn't the supreme court decision be handed down directly to the states under the 10th amendment, because abortion isn't found in the constitution? host: why couldn't it have been invalidated by the 10th amendment? why couldn't he handed directly to the states? clarke: for why has the 10th amendment not been a relevant consideration? the court has never considered the 10th amendment to be a blockage to its position in roe v. wade. host: what does it do? clarke: the 10th amendment reserves powers to the state. but the court said the 14th amendment supersedes whatever the 10th amendment might be. melissa: although there have been many cases in recent years which resurrect a more robust view of the 10th amendment. clarke: right. but the court has not applied it in the area of abortion. host: david is in tracy, california. you're on. caller: what you think could have or should have happened back then that would have settled this issue once and for all? melissa: that is a tough question. clarke that ah more robust factual record would have made clear what the stakes were for the many women seeking abortions and were unable to get them. i think it would have clear what the stakes were for the states who were seeking to regulate, weather in the interests of maternal health or in the name of immorality. some states were quite forthright about that. one of the difficulties of roe is that you don't have the factual record, and you don't get the voices of the many constituencies affected by this decision. host: how would you internet? -- how would you answer that? clarke: i would add that some issues and democracy are not finally settled and me take decades. especially issues of strong cultural current. i do believe that it is clear that roe has unsettled this issue more, and if the court has not stepped in, it would have provided the opportunity for public opinion to affect public policy and be more in line with public policy. the fact that public opinion is out of sync with the broad sweep of roe v. wade has kept this issue simmering for 42 years. melissa: we could say the same thing about a lot of the most divisive issues of the last century. segregation was certainly an issue that if left two public opinion would have come out very differently. there is a role for the court to play in protecting constitutional rights regardless of what public opinion is. certainly does have the defendant roe v. wade has spoken. it is true there may have been backlash, but it wasn't clear that the democratic process would work in a way that would vindicate existing constitutional rights or the views of women who were clamoring for this kind of medical care. host: is it fair to say that the criticism of the court on this case does not fall neatly into the liberal-conservative divide? melissa: i think that is fair. it stands a lot of different constituencies. reasonable people can disagree on this question, and do. the larger question is what is the court's role in a democratic process? when should the court intervened when the process breaks down? the reform effort had basically stagnated at the time these cases went up to the court. the reason why there were so many cases in the pipeline at decided,that roe was the political process had broken down. clarke: big difference is that brown versus board of education in 1954 was based on the reconstruction amendment, which specifically was designed to protect the rights of the friedman. -- of the freedmen. in roe v. wade there is no history of an abortion right. the court was not relying upon the history and text of the constitution. it was creating something wholly new. the justices and cementing the reconstruction amendments is something that is part of judicial character and part of judicial function. the court stepping in and becoming what justice o'connor said in 1983 as the nation's medical board with the powers to approve or disapprove operative practices in the u.s. is not what judges can do. they cannot be the national abortion control board. 42 years has shown that clearly. melissa: they were not making it out of whole cloth. griswold versus connecticut speaks of a right to privacy. there are various constitutional guarantees. roe is rooted in griswold, in the right to privacy. it speaks of the ninth amendment. this idea that not all constitutional rights are enumerated. in the constitution does not exhaust all the rights people might retain. clarke: in griswold the court acted like a court of judges and simply invalidated the statute, whereas in roe v. wade the court did not just invalidate the texas and georgia statute, it rewrote a statue of considerable detail that it has been forced to administer as the national abortion control board. that is completely different. it completely reinvests the court in this issue year to year, and the only way that the court can really settle the issue is to some extent by relink wishing its role. -- by relinquishing its role. host: robert is in dallas. caller: i want to confirm my understanding that sarah weddington was a judges former law clerk, and when the case was filed in dallas, it made it something other than a coincidence that it ended up with judge use. -- judge hughes. melissa: when they were thinking of filing suit, they thought of filing in the lesser district of texas, but later decided they would have a better shot in the northern district of texas, where dallas is, because judge hughes is likely to part of the panel. it was a degree of strategic performance. earlier you don't think the personalities in this case were quite as large as some of the earlier cases. there is an interesting arc to her life story. we have some video to show our audience of how she has been involved in this issue. she has changed camps. let's watch. i would like to take this opportunity to apologize to each and everyone of you here today. i am sorry. i repented. i asked jesus into my heart. i love jesus and i love all of you. thank you. >> what a dream this has been, right guys? how many of us love jesus? >> [applause] >> how many of us want to see roe v. wade overturned? >> [applause] >> this is the day i have been waiting for. the affidavit -- when we had our news conference on the 18th, the actual filing was on the 14th of this month so we are looking forward to having the covenant of death to be overturned like our great president george w just said. >> [applause] jesus is. is good and host: every year on january 22 there is a large walk in washington dc. what can you tell us about her life story? clarke: suffice it to say that she completely changed her views, and she became a pro-life activist. but she went beyond that because she testified before congress more than once in supported overturning the decision. doe, as well as the mary jo both of them filed cases or tried to file cases in 2005 and 2006 to revisit the original decisions and overturn them. their motions were denied in a federal district court and federal court of appeals and the supreme court refused to hear those cases. melissa: which is not to say that the supreme court turned a deaf ear to them. the 2007 decision upholding the partial-birth abortion ban, justice kennedy fights the brief for the court in upholding the ban. they receive an audience at the core in some parts. host: do you know what caused her conversion on this issue? melissa: it is my understanding she became a born-again christian and her faith is part of the shift in her view. host: let's hear a question from john watching us in evergreen park, illinois. caller: it was my understanding georgia case, where sandra never wanted an abortion. she wanted to file for a divorce, but her attorney tricked her by putting in the papers that she wanted an abortion. the second thing is talking to most gynecologists, obstetricians, they feel like the life of the mother is not at stake because we now have a cesarean c-section which can protect both the mother and the baby. if this case, roe v. wade, is rooted in griswold, griswold said the right to privacy pertained to things like contraceptives. this is a tremendous stretch, to go from i have the right to buy contraceptives to kill an innocent defenseless child. the question for melissa and the gentleman, with all due respect, yes or no, to you consider the baby in a mother's wo human beingmb a? -- mother's womb a human being? if we know life begins at conception or before birth, we have to revisit this. host: i'm going to let you go at that point because we have little time and lots of questions on the line. melissa: to make clear the bridge between griswold and roe, in between in 1972, third is another case before the court dealing with contraception. there the court is considering whether massachusetts law that prohibits the use of contraception's to married people is constitutional and the court in an opinion by brennan writes that the right of individuals to have a child is the right of the individual. , what is leftayt up to individuals? in roe, it seems like a leap from contraception in griswold. it is that language that speaks of a fundamental right to determine whether or not to beget a child that furnishes the underpinnings for roe. clarke: and yet it was an equal protections case. as the history shows and papers of the justice show, justice brennan was writing at the time of the roe and doe decisions. he envisioning the abortion question put this paragraph about privacy that was complete dictum into this equal protection decision for the very reason that it could be used in roe v. wade. maybe two address the second part of the caller's question, i do believe that science shows that the life of a human being begins at conception. was more important for roe v. wade in our discussion is that the states have progressively strengthened their prenatal injury law, fetal homicide laws to the extent where he have 50 states with prenatal injury laws that protect the unborn child. 38 states that protect the unborn child. you have fetal homicide laws in 39 states. that is a very significant show of public opinion in support for fetal protection. host: are a guests have referenced many cases before the that in the past 42 years have considered some aspect of abortion. by our count, there were many as 40. your book has 29 depending how broadly you count this. we will put some of the names on screen you have heard references to. the last is a case before the roberts court, which is not yet on the schedule. as we look at that, list missing to -- let's listen to marianne in pennsylvania. so painfullyd it inconsistent that the child in the womb has no rights and later when scott peterson killed his wife, was accused of killing two people. secondly pennsylvania was the first state to have a law to protect or defeat abortion by making the mother of the child wait 24 hours and is under the age of 18, has to have parent consent. melissa: this is a 1992 case, planned parenthood of pennsylvania. the control act has a number of provisions. one it requires parental notification. another that requires a 24-hour waiting period. another that requires spousal notification. in casey, the court affirms r the essence of roe but scales back the review required for abortion cases. scrutiny has been lowered to the undue burden standard. the idea is that abortion regulations will not be rendered constitutional if they impose a substantial obstacle in the path of a woman seeking an abortion. the waiting period is of health as not having a substantial obstacle and parental notification is. upheld these also notification is struck down. -- the spousal notification is struck down, that it renders women subordinate to their husbands, that they should not have this unilateral authority to veto. the court is worried about the fear of domestic violence or coercion in these relationships. the fact that roe v. wade focused only on abortion. it did not address prenatal injury law, fetal homicide law, wrongful death law. andeft it to the states to hence legal protection in those areas, and the states have done so. have half of the states with fetal homicide laws that extend protection from conception. you've got this supreme court edict across all 50 states allowing virtually abortion on demand at any time for any reason. that has created -- because there is such a tension -- that has kept the issue simmering for for two years. host: as one of our callers mentioned, this issue is simmering in the presidential campaign this year. as we heard the court is hearing another case. the congress itself over the issue of planned parenthood funding. up until recently there was the front of the government shutdown that hinged on funding for planned parenthood. s continuess -- thi to be debated in american society. two senators on the floor of the senate on the anniversary of roe v. wade in january this year. >> even before america's founding the law was on a steady march toward protecting the human beings before birth. in the 19th century medical professionals and civil rights activist led a movement that succeeded in prohibiting abortion in every state except to save a life. consensusd reached a on the importance of protecting the most vulnerable. unfortunately the supreme court swept all of that aside and imposed an abortion regime that the american people have never chosen or accepted. >> it is hard for me to believe that here i stand in his century arguing that women should be respected, that families should be respected, that everyone's religion should be respected. because i support a woman's right to choose, and that means if your religion says he will never end an unwanted pregnancy, i support you. i believe this decision should be between a woman, the doctor, and her god, and her family. and i don't think any united states senator should get in the middle of a woman's private life. host: as our program is coming to an end i will move from two u.s. senator's talking about roe v. wade to give you a view of two justices also talking about the decision. justice ginsburg and antonin scalia. justice ginsburg: take the worst-case and roe v. wade is overruled by the supreme court. there will be states, a sizable number, that will not go back to the way it was. at the time of roe v. wade, there were four states that gave women access to abortion without any questions asked in their first trimester. those states are not going to change. can it means is a woman who for a plane ticket -- who can afford a plane ticket, a bus ticket will be able to decide for herself whether to have an abortion. choiceho won't have that . scalia: these are questions for the american people to decide. do you think abortion should not be prohibited? fine, persuade your citizens, pass a law. don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't. host: there we have both members of the court currently and u.s. senators laying out the continued divisive arguments over roe v. wade. onant to get on the record the effect on the court itself. appointments from roe on became a litmus test for both sides. can he talk about the impact on selection of justices for the court? clarke: as you noted it has been a litmus test ever since probably 1976. ation wastevens' nomin the last in which it wasn't much of an issue. i think there is evidence that has skewed judicial appointments to the supreme court. it has become a disproportionately emphasized issue. when you take into consideration all of the other serious statutory and constitutional policy issues that supreme court justices addressed. yet it has skewed consideration, and i think that has been to the detriment of the country. ginsburg'sth bader confirmation, president clinton worried about appointing her because an article was very critical of roe v. wade and he was worried she was against it. he read it and found she was against the reasoning, and felt it should be an equal protection case. he appointed her to the bench. you are right it was a litmus test issue and it plays out in different ways depending on who the president is. -- hows we close, with should people think about this case and its impact on our society and on the court? the next question is, where does this country go from here given the heat that continues from this issue? melissa: this is a very difficult question about which people that are reasonable can disagree. people on one side of the issue think this is a question of women's basic rights, about their participation in society as equal citizens. others focus on the life of the unborn child and questions of the democratic process. those are hard things to reconcile. we are trying to play at all in a political process. intermittently the court intervenes and takes us in one direction or the other. clarke: it truly was an abuse of discretion. it was a tragedy for the court to step into this issue prematurely and to take over the issue for the last 42 years, and to try to be the national abortion control board. it has failed in that task. the best thing the court can do is to return the issue to the american people, where public opinion and public policy would be allowed to be more in sync. i think that would alleviate a lot of the tension on the issue and restore public opinion to its rifle place in determining the outcome of this issue. host: we are at the final moments of our landmark cases series. thanks so much for being with us throughout these 12 cases. the series is archived on www.c-span.org. you can find it easily under the series. we have all of the video from each of the 12 programs for you, including other videos that didn't make it into the television production, visits to historic sites and oral histories. you can read the opinion and hear audio from the opinions on our landmark cases website. if you would like to have on your bookshelf the landmark cases book, that is also available and we can get it out to you very quickly. forks to our two guests being with us as we learn more about the background and 1973.ance of the case in thanks for your expertise. ♪ >> landmark cases returns lives next february on c-span. join us to hear more stories about people that sparked groundbreaking cases and the justices and lawyers who were key to the supreme court's review. this year, c-span is touring cities across the country, exploring american history. next, a look at our recent visit to tacoma, washington. you are watching american history tv, all weekend, every weekend on c-span3. >> we are at a really beautiful place here in the puget sound. this is nisqually homeland. it is also known as leschi country. means "place where you get your spirit power." looking out at