Constitution center. Exploring the human story and constitutional drama behind 12 Historic Supreme Court decisions. Number 759, Petitioner Versus arizona. Roe against wade. Quite often the decisions 01 that the court took that were unpopular. Lets 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 cspans 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. Good 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 antiabortion 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. Host the debate continues. 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. 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 american uniteds of life. 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. Most of the states in the United 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. It created a Public Health vacuum because there were no abortion laws left on the books of every kind. It also suggest finality. 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. It was a sweeping decision, it 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. Host these programs have been interesting because of your participation in them. If you are new to the series, here is how you you do it. We have a twitter feed. Just please use the landmark cases. There is also a discussion underway on our facebook page. Find cspan 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. Well go to calls in about 25 minutes past the hour. Lets do the Historical Context of the 1960s and 1970s, and what was happening in the country societally in regards to abortion regulations, womens Rights Movement, and the backdrop for the court taking this on. Melissa it is kind of a perfect storm of different events. You have women Rights Movements gathering steam on the idea that women are more political in society. There is also a Strong Movement 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. Host we have a map, and you reference this, the states and 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. Clark up until 1967, virtually 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. In 1971 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 . Clark i think it was because opposition and Public Opinion, and the movement had grown between 1967 and 70. And in 1971 and 1972. They really did not win anything in the state legislators. Host our producers put together a video that tried to capture the womens 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 lowpaying, relatively low jobs, often in a dead end profession. A 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. Melissa women for years who had taken on a traditional feminine role. It found itself and younger women who were clamoring for more options. More options in 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 feminist movement and leaders really came late to the push for abortion. The push really starting in the 1950s from doc turners and from doctors and population control movement. Rockefeller was a big thunder of population control in the 1950s and 1960s. Feminist leaders do not come on until 1968 and 1969 and 1970. They relate to the socalled abortion reform movement. One thing came on. They certainly push the issue very hard in the early 1970s. Host what was happening in congress at this time regarding these issues . Clark population control was a big national issue. Even Richard Nixon was elected 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 population abortion for endorsing abortion for population control. He 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. Host the case had the name roe v. Wade, but that is a pseudonym. Melissa she is rummaging 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. The 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. She was friends with a woman named sarah, who at the time was thinking of filing a case challenging criminal abortion statutes that was in a need of plaintiffs. She informed her and the rest is history. Host norma 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 1970 she was connected with linda coffee, her cocounsel. The two of them filed the case in march of 1970. As quickly as a couple of months 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 Courts could go straight up to the Supreme Court without any intermediate appellate review. This is one of the ironies about, and one of the problems about roe v. Wade. There was no record of this case. All of the details we might play out about norma were not in the opinion. There was no trial, there were 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. It is so sweeping that her particular circumstances are not really significant to the outcome of the decision. That 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. She was famously the woman who sworn lyndon b. Johnson in air force one. By all accounts, a fairminded 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 . Melissa 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. The idea here is that not all of the rights and the constitution are enumerated. The constitution said, it is not 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 rights 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 . Clark it was not, the allegation of rape was not in the federal Court Opinion or the Supreme Courts 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 untrue, in this case is it it is not a relevant question. In a general sense, can you answer that question . Melissa i think the fact that she claimed she had been raped 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 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. This is one of 20 or 22 cases 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. Melissa sarah, the issue of abortion is personal. 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 recently enacted law that had 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, for Mental Health reasons, and those three exceptions were put in in july of 1968. It was not in effect for long to tell what happened. In doe v 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. Host the case of the name of row. Melissa it is with noting that the 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 wouldve been different if there were experts . Clark it wouldve 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 texass law, or under the georgia law. The court in the dove versus doe v. 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 and doe v. Bolton of bolton are based on assumptions. Host do think there wouldve been a difference if there was testimony . Melissa i think there would have been a diss a difference. You wouldve had more social context and discussion of the german measles crisis, which had many women suffering from german measles to seek abortions. There would have been discussion 1960s 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 couldve made for a more wholesome discussion. Host lets take our first telephone call. Josh in algona, iowa. Caller 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. Do you think 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. Clark in casey, planned parenthood versus casey in 1992, the court overhauled roe v. Wade. They abandoned the original rationale and adopted a new rationale. They abandoned the trimester and turned it into a by mr. Bimester. There are certain liabilities. But there is no trimester guideline. Host next is terry from palo alto, california. Welcome. I am really interested that, 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 forward, if the case would be more fairly considered on civil rights terms, rather than where it seems to be going in terms of trap laws and so forth. If the woman and her doctor, being asserted as the people having the just standing might be compared to a man and his doctor having the right to make equally momentous decisions if they might comment on abortion rights as civil rights . Melissa i think you have prestaged a line of arguments that Justice Ruth Bader ginsburg authored. She famously criticized roe v