Due process and the right to privacy
Roe v. Wade
- [Kim] Hi, this is Kim from Khan Academy. Today you are Roe versus Wade, the 1973 Supreme Court case that ruled that the right of privacy extends to a woman's decision to have an abortion. To learn more about Roe versus Wade, I spoke to two experts on the case. Clarke Forsythe is Senior Counsel for Americans United for Life and the author of Abuse of Discretion: The Inside Story of Roe V. Wade. Melissa Murray is the Alexander F. and May T. Morrison Professor of Law at Berkeley Law School, where she also serves as the Faculty Director for the Center for Reproductive Rights and Justice. Mr. Forsythe, could you set the stage for us a little bit. What was going on at this time period? - [Clarke] Well, there were efforts in the 1960s to repeal abortion laws in the states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973 and Roe versus Wade was the case from Texas. - [Melissa] Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women's rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman's health or life, or in cases of rape, incest, or fetal anomaly. - [Clarke] Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy. And she became the nominal plaintiff. - [Melissa] And so Norma McCorvey brought this case. She was a 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She was unmarried, her first child had been born, a daughter, and she had ultimately signed over custody of her daughter to her mother to raise, because she was having a bit of itinerant life, was unable to take care of her child. The second child that she bore, she gave up for adoption. And so when she found herself pregnant for a third time, she wasn't willing to do either of these things again and wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century absolutely criminalized abortion except in cases where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then, was to actually challenge the law. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. But they decided to sue the State of Texas to challenge the constitutionality of Texas' criminal abortion ban. - [Clarke] But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As you know, she never got an abortion. She gave birth and placed her child for adoption. - [Kim] Okay, so Roe was Norma McCorvey, who was Wade? - [Clarke] Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court. - [Kim] So this case, I assume kind of wends it's way through the courts and how did the Supreme Court rule? - [Clarke] The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th amendment of the Constitution even though the 14th amendment doesn't say anything about abortion, or the unborn child, it just uses the term liberty. And ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th amendment. - [Kim] That's very interesting. So I've learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there's a penumbra of privacy that you see in a few ways. What was the Court's reasoning that it was abortion that could fall under this zone of privacy? - [Clarke] If you read the Roe opinion, on page 152 of the Roe opinion, Justice Blackmun starts out by saying that, he cites a string of cases since about 1910, a string of Supreme Court cases and says that these lead to the right of privacy and we think abortion, or that the right of privacy is broad enough to encompass abortion. But then four pages later, on page 156, Blackmun turns around and says, but abortion because it involves the taking of a life, is inherently different from all those other cases that make up the right of privacy. - [Melissa] So the right of privacy doesn't actually come from Roe versus Wade, it comes from a case decided about eight years earlier, in 1965 called, Griswold versus Connecticut. In Griswold, at issue was a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed and then they were able to bring this case. And they argued that the right to be able to use contraception was the right of the individual. The right of the doctor to advise patients about contraception was also an individual right. And the Court, in an opinion authored by William O. Douglas agrees with them. And the Court articulates for the first time this right of privacy and this is a right that the majority in Griswold says is actually been percolating in the Court's decisions for some time. - [Kim] Did any of the Justices dissent in the Roe decision and if so, why? - [Clarke] Well there were two dissents by Justice White and by Justice Rehnquist and Justice White said that the Court was engaging in raw judicial power and that the Justices did not have the right or the authority to strike down the abortion laws of the States and could not rely upon a doctrine called, substantive due process. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th amendment in the 1860s leading up to 1868 and that the evidentiary history, this history of state limits and prohibitions on abortion contradicted any proposition that the 14th amendment was intended to include a right to abortion and that was kind of the heart of his dissent. - [Kim] So Roe was not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood versus Casey, or Whole Woman's Health versus Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion? - [Melissa] As soon as Roe is decided in 1973, there is an effort to sort of roll it back and hem it in a little bit. Frank Church, who's a Senator from Idaho, announces the Church amendment, which basically says that physicians don't have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So, again, that's one opportunity to sort of limit the reach of this right, by limiting the number of providers who are available to offer abortions. - [Clarke] In fact the Court has kind of cut back on Roe versus Wade in four cases over the years. Harris versus McRae involving abortion funding. Planned Parenthood versus Casey and in other cases, they've given more deference to the states, allowed the states to pass more and more limits at least around the margins, even though they've continued holding to the basic right that Roe created, that there was a right to abortion for virtually any reason, at any time of pregnancy. That's still the scope of the right, but they've allowed marginal regulations, like limits on public funding, parental notice and consent, informed consent laws. But then the Court flip flopped in 2016, in June of 2016 in Whole Woman's Health versus Hellerstedt. - [Melissa] The case makes its way to the Supreme Court and in an opinion that's authored by Justice Stephen Breyer and it's only an eight person Court because Justice Scalia passes away in February of 2016, so just eight people on the Court. In this decision, it's a five to three decision, Justice Stephen Breyer notes that the provisions that were challenged do not offer the medical benefits that they claimed to offer, sufficient to justify the burdens on access that each of those provisions imposes. - [Kim] What do you see as the future of Roe versus Wade? - [Clarke] Well, the Court has failed as the national abortion control board. It can not monitor abortion. It can't intervene, it can't regulate or legislate itself, it can't act as public health administrators It can't investigate and I believe it's absolutely certain that the Court, sooner or later, will have to overturn the Roe versus Wade decision because of this failure and return the issue to the states. - [Melissa] When we are talking about repealing or reforming these laws in the 1960s and 70s, it's also around a social movement where one of the critical questions is, what will be the role of women going forth in a modern society. When the questions of contraception come before the Court, one of the questions is whether women will be allowed to choose when and how to have children, whether they can space the timing of births to accommodate careers. It's the same issue that comes up in abortion, like this allowing women freedom to be able to go into the workforce, to determine when and how they will become mothers. And so, it's not surprising that the same questions that arose in 19th century about the place of women, about what happens in a society that's undergoing change, whether its immigration or changes in the demography of the country, are also coming up in the 1960s and 1970s at a time of incredible social change. And I think abortion and these rights involving a woman's role really do come to the fore and are incredibly controversial. - [Kim] So we've learned that the decision to legalize abortion in Roe versus Wade was based on the right of privacy, which the court has inferred from the due process clause of the 14th amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children. To learn more about his case, visit the National Constitution Center's Interactive Constitution and Khan Academy's resources on US Government and Politics.