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hi this is Kim from Khan Academy today we're learning more about 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 Clark Forsyth is senior counsel for Americans United for life and the author of abuse of discretion the inside story of Roe vs. Wade Melissa Marie is the Alexander F and matey Morrison professor of law at Berkeley Law School where she also serves as the faculty director for the Center on reproductive rights and justice mr. Forsythe could you set this stage for us a little bit what was going on at this time period well there were efforts in the 1960s to repeal abortion laws in the States and when that when act 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 twenty or more cases challenging state laws in the courts between 1969 and 1973 and Roe versus Wade was the case from Texas Roe was litigated in the early 1970s it was a period of enormous change in the United States we were beginning to see the beginnings of the women's rights movements the beginnings 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 for 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 liberal their laws criminalizing abortions but in a 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 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 named gave the pseudonym of Jane Roe for purposes of protecting her privacy and she became the nominal plaintiff and so Norma McCorvey brought this case I'm 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 an 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 she 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 that she helped Norma McCorvey bring this case but they decided to sue the state of Texas to challenge the constitutionality of Texas as criminal abortion ban but as as the history shows there was no trial there was no evidence there were no expert witnesses Jane rule never testified as you know she never got an abortion she gave birth and placed her child for adoption okay so Roe was Norma McCorvey who was Wade Henry Wade was the district attorney for Dallas Texas where the case was filed in federal district court so this case I assume kind of winds its way through the courts and how did the Supreme Court rule the justices declare the Texas and Georgia laws unconstitutional and then rewrote a national law and a national abortion law in which they said that the states could not regulate or a little bit 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 this 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 to the Constitution even though the 14th amendment doesn't say anything about abortion and or the unborn child it just uses the term Liberty and ultimately the court said that the right to abortion as part of the right to privacy based on the Fourteenth Amendment 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 courts reasoning that it was abortion that could fall under this zone of privacy if you read the role opinion on page 152 of the Roe opinion and justice blackmun starts out by saying that he Sykes a string of cases since about 1910 a string of Supreme Court cases and says that these lead to the right of privacy and do we think abortion or that the right of privacy is broad enough to encompass abortion but then four pages later or on page H 156 Blackmun turns around and says but abortion because it involves taking up a life is inherently different from all those other cases that make up the right of privacy so the right of privacy doesn't actually come from Roe vs. Wade it comes from a case decided about nine or 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 has actually been percolating in the courts decisions for some time did any of the justices dissent in the ROE decision and if so why 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 1880 1860 he's leading up to 1868 and at the evidentiary history this history of state limits and prohibitions on abortion contradicted any proposition that the Fourteenth Amendment was intended to include a right to abortion and that was kind of the heart of his dissent 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 KC or whole women's health versus Heller stat can you talk a little bit about how those cases have altered the scope of the right to abortion 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 is 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 conscience 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 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 v and in other cases they've given more deference to states allow the states to pass more and more limits at least around the margins even though they've continued the holding to the basic right that that Roe created that there is a right to abortion for virtually any reason and 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 the court flip-flopped in 2016 in June of 2016 in whole women's health versus Heller stat 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 eighth person Court because Justice Scalia passes away in February of 2016 so just eight people on the court in this decision that's a five to three decision Justice Stephen Breyer notes that the provisions that were challenged do not offer the medical benefits that they claim to offer sufficient to justify the burdens on access that each of those provisions imposes what do you see as the future of Roe versus Wade well the court has failed as a National Abortion Control Board it cannot monitor abortion it can't intervene and can't regulate or legislate itself it can't act as public health administrators it can't investigate and I 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 of the states 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 isn't 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 the 19th century about the place of women about what happens in a society that's undergoing change whether it's immigration or changes and the demography of the country are also coming up in the 1960s and 1970s at a time of incredible social change I think abortion and these rights involving a woman's role really do come to the fore and are incredibly controversial 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 Fourteenth Amendment since the ROE decision a number of other cases have set limits on abortion and abortion clinics Clark Forsyth 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 this case visit the National Constitution Center's interactive Constitution and Khan Academy's resources on u.s. government and politics