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tv   Supreme Court Landmark Case Roe v. Wade  CSPAN  January 22, 2016 6:30pm-8:03pm EST

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," exploring the constitutional dramas between several supreme court decisions. >> number 759. chief justice burger: we will hear arguments for number 18, roe v. wade. >> quite often in many of our most famous decisions, the court took quite unpopular cases. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in this society of 310 million different people who help stick together because they believe in the rule of law. host: good evening, and welcome to c-span's "landmark cases." tonight, the 12th and final in our history series, the 1973 roe v. wade decision, a decision that continues to rock the american political landscape. we will learn more about that in
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the next 90 minutes, but, first, we are going to start with a "cbs evening news" report on the night of the decision was announced. mr. cronkite: in a landmark ruling, the supreme court legalized abortions. a majority in cases from texas and georgia said a decision to end the pregnancy during the first three months belongs to the woman and her doctor, not the government. thus, the antiabortion laws of 46 states were rendered unconstitutional. >> to raise the dignity of woman and give her the freedom of choice is an extraordinary event. >> i think that the judgment of the court will do a great deal to tear down the respect previously accorded human life in our culture. host: the debate which began that day continues. we are going to learn more about the history of this case, what led to the court making the decision, and some of its effects on this society.
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melissa murray teaches law at the university of california at berkeley. welcome to our series. clarke forsythe wrote the book on roe v. wade. his day job is as senior counsel for americans united for life. thanks for being with us. let's start with a very brief overview on why this is a landmark case and what the constitutional issues were. ms. murray: obviously, it's a very controversial decision. the decision decriminalized abortions throughout the united states. heretofore, most of the states in the united states made abortion and crime, meaning that any woman wishing to terminate her pregnancy would have to go to a state that permitted it or leave the country entirely. the fact that the court made a sweeping decision was an amazing thing in 1973. it was sweeping in its scope and
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sweeping in its view of the democratic process and what was happening on the ground, the court feeling it needed to intervene. mr. forsythe: it was a sweeping decision insofar that it swept away all laws on abortion and created a public health vacuum. there were no abortion laws left on the books. it also suggested finality. "the new york times" came out and said the court has settled the issue, and the irony is it did nothing like settle the issue. for 42 years, it's 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 195 across the globe that allowed abortion for any reason after fetal viability, and it has not settled the issue at all. host: these programs have been interesting because of your participation. if you are new to the series, we
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have a twitter feed. if you are wanting to join us on twitter, use #landmarkcases. there is a robust discussion underway on our facebook page. you will see the video there, and you can join that commentary. finally, we have two phone lines divided geographically, and we will put the phone numbers up for the next 15 minutes or so. let's do the historical context of the 1960's and 1970's and what was happening in this country societally with regard to abortion legislation, the women's rights movement, and the backdrop for the court taking this on. ms. murray: it was kind of a perfect storm of different events. you had the women's rights movement gathering steam, the idea of women taking a more public role in society. there was also a strong movement within the criminal law to decriminalize areas of intimate life that individuals felt the government had no business
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intruding into. the american law institute got involved with their penal code project, which prohibited consensual sex, prohibited adultery, and abortion was one of the topics it took on. there was an effort to liberalize abortion laws. host: i'm going to put this map on screen to show states where it was legal, the limited number, four states where it was legal. can you talk about the state legislatures and their approaches to this question? mr. forsythe: up until 1967 or so, virtually every state except for two or three or four prohibited abortion except in the life of the mother. in some ways, they limited it.
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no state allowed abortion to the extent the supreme court allowed it in 1973. in 1967, four about four years, there were four years of state legislative session in which the states started to enact exceptions to the traditional prohibition. in 1970, that legislative reform seemingly comes to an end. in 1971 and 1972, no state legalized abortion by legislation, so the reform effort seemed to come to an end after the four years. host: why was that? mr. forsythe: well, i think it was because opposition in public opinion and in social reform movements had grown between 1967 and 1970, and in 1971 and 1972,
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abortion activists recognized they didn't win anything in the state legislatures. host: our producers put together a video that tries to capture the women's rights movement of that time. we are going to look at that, just over a minute long, and we will come back and talk about what is happening in society. [video clip] >> join us now! the majority of women are working at low-paying job, almost in a dead and professionally. [indiscernible] very happy housewife and
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happy mother, and i feel i have so many things to do with my daughter. >> a concern for all women. problem. face the it's a problem for childbearing, sterilization, and limited access to contraception. >> we are sisters. free ourselves! host: for the young people in our audience who have been watching this series, high school and college -- we tried to capture what was happening. ms. murray: what's interesting is the scope of it. you see a generational shift, women who for years have taken on a traditional feminine role, wife, mother. betty friedan who rallied against the traditional role. then younger women were clamoring for more options, more options in employment, more
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options in employment, and understood reproductive control as central to their opportunities. host: what can you add to our knowledge about the time period? mr. forsythe: the history of the feminist movement and the leaders came late to the push for abortion. the push for abortion started in the 1950's from doctors and the population control movement organizations that wanted abortion for population control. rockefeller was a big funder of population control in the 1950's and 1960's. the feminist leaders did not come on board until 1968, 1969. they were late to the so-called abortion reform movement, but of course, when they came on, they certainly pushed the issue very hard in the early 1970's. host: what was happening in congress at this time regarding these issues? mr. forsythe: population control was a big national issue.
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even richard nixon, who was elected president in 1968, six months after he became president in july of 1969, gives a speech about population control, and he appoints a national commission, which happens to come out with a report endorsing population -- abortion for population control. in march of 1972, justice blackman is writing the first draft of his opinion in roe v. wade. host: we are going to move to 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 contested? mr. forsythe: the texas law was one of the 30 or 40 that had prohibited abortion. although there had been debate
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in the texas legislature, texas retained its traditional prohibition up until the time the case was filed. host: the case has the name roe v. wade, but roe is a pseudonym. ms. murray: jane roe was norma jean -- she was a young woman married to a man who was some years older. she was already a mother of two children when she found herself pregnant. the marriage was troubled, often abusive, and she sought to terminate her pregnancy. she wasn't able to in texas. she passed the point of viability, and she tried to say she had been the victim of a rape. there was no police report documenting that. she wasn't able to take advantage of the loophole in the texas law that permitted abortion in limited cases. she found herself going to henry mccluskey, an adoption lawyer
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in texas, to make arrangements for an adoption. mccluskey was friends with a woman who was thinking of filing a case that was in need of a dallas-based plaintiff. mccluskey informed norma jean, and the rest is history. host: norma mccorvey is described as a dallas carnival worker. she herself, it was said years later that she had no understanding of the legal system and thought this case could be settled in time for her to get permission to have the abortion. of course, courts don't work that quickly. how did she proceed in the legal system, and would you walk us through the process? mr. forsythe: this case was actually one of 20 that were in the courts, but in this case, she got pregnant in the summer of 1969.
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she gave birth at about the time her case was in federal court, sometime in january or march of 1970. she was connected with her co-counsel. the two of them filed a case in march of 1970, and as quickly as a couple months later, i think it was june of 1970, they had an oral argument before the three-judge district court in dallas, and by october, they were heading off to the supreme court. there was no intermediate appellate review because three-judge district courts could go straight to the supreme court. this is one of the points, one of the ironies about roe vs. wade. there was no factual record. all of the details we might play out about norma mccorvey's life were not in the opinion. there was no trial.
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there were no expert witnesses. there was no presentation of evidence. so 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 and sought an abortion. then the decision is so sweeping that her particular factual circumstances are not really significant to the outcome of the decision. that is part of how roe vs. wade is different from all of the other cases you have discussed. when you think of maranda or marbury, those are very factual-laden decisions, and the courts go through the facts in a great deal of detail. there was no fact or trial in this case. that isolates it and highlights it as an unusual decision. host: who was wade? ms. murray: henry wade was the prosecutor, interestingly one of
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interestingly vying for one of the judges on the three-judge panel, and sarah hughes was famously the woman aboard air force one in 1963. he was the prosecutor, and by all accounts, a fair-minded man, a good prosecutor who found himself in the middle of a maelstrom. host: would you talk about the ruling by the three-judge federal panel? on what grounds did they rule in the case? ms. murray: the district court ruling is actually quite interesting. there's a lot of discussion of privacy, but also quite a lot of discussion about the ninth amendment, which is known in legal circles as the forgotten ninth amendment. the idea is that not all rights
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in the constitution are enumerated. the job was not to be exhaustive. there are other rights that might be divined, and the ninth amendment speaks to that. that panel talked about the ninth amendment being a source of rights for rights like this one, the right to have an abortion, and there was discussion about the right to privacy that would be defined through judicial interpretation in 1965. host: was it at all significant in the federal review that she claimed she had been raped? mr. forsythe: it was not. the allegation of rape was not in the federal district court opinion. it was not in the supreme court's decision. so the fact that she later recounted is really not relevant to the decision or the future of the decision, because the courts themselves did not rely upon the allegation in making their decision. that is what is problematic about roe vs. wade, that it was decided on a motion to dismiss.
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there was no trial, no expert. it wasn't decided through the normal course of the adversary process. that lays the foundation for the problems that i think we've seen over the last four decades. host: on twitter, in response to snow leopard, when they ask the question, when a case is determine on testimony -- on facts that were not true, in this case, it's not a valid allegation. can you answer that question for the viewer? ms. murray: i think it is omitting the fact that she claimed she had been raped in order to gain access to abortion suggests how difficult it was for women to get this kind of reproductive care at the time. so i'm sure she was not alone in claiming that she had dire circumstances, whether it was rape or her life was in peril, in order to gain access to that
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kind of procedure. lots of women were doing it at the time. host: what more can you tell us about sarah weddington? how old was she, first of all? mr. forsythe: she had then a couple of years out of law school. this was her first contested case. certainly, you have to hand it to her to jump into a major federal court case like this, or one that becomes a major federal court case, and to take that to the supreme court, argue it twice, and win. it's an amazing first effort by a law student or young lawyer coming out of law school. this is one of 20 or 22 cases that were in the courts. you might have had an amy smith or mary jones who got up to the supreme court, but the court happened to take these two cases instead of the 18 or 20 others. host: we have to talk about the second case, which is a bit confusing.
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you have something you want to say about sarah weddington. ms. murray: the issue of abortion is actually quite personal. while a law student, she found herself unexpectedly pregnant. she and her future husband went to mexico to get an abortion, because she couldn't secure one 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 the university of texas. host: would you talk about the second case, which is a georgia case called doe. mr. forsythe: doe vs. bolton, an unmarried woman who was using a pseudonym revealed her identity years later as sandra cano. similarly, they were challenging the georgia statute. the georgia statute was different because the georgia statute was a recently enacted law called a reform law that had enacted various exceptions into
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the georgia law, so it allowed abortion to save the life of the mother, but it also allowed abortion for rape, for indications of "fetal deformity," for "mental health reasons," and those three exceptions were enacted into the georgia law in 1968. it was a very recent law, and it hadn't been in effect long enough to tell what happened, but in doe vs. bolton, that case was decided without any trial, any expert testimony, and was also decided on motions to dismiss, and again, went straight to the supreme court without appellate review. host: we will learn that the supreme court heard arguments in tandem, roe and doe, and they meant for the decisions to be read as a conjoined decision, correct? ms. murray: correct. host: the case bears the name of roe. ms. murray: roe became the lead decision.
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it is also worth noting that the law at issue in doe was one of those reforms, as clarke said, a reform inspired by a penal code. it marks the tension. by the time the statute in doe was promulgated, there was an idea that this was only making a modest impact for women who wanted to terminate their pregnancies, and that a repeal was needed. host: our last case was chief justice earl warren, in this case involves a new court. we are going to learn a little bit more about the dynamics on that court in a couple minutes, but i want to take some telephone calls and get in this question from courtney on twitter, who says, what do you think would've been different if there were experts? mr. forsythe: well, it would've provided the opportunity for
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them to explore what data existed with respect to abortion, what had perhaps happened, what had been the medical experience, the sociological experience, the impact on women and unborn children under texas' law or under the georgia law. the court in the doe vs. bolton case had no data or information about how the reform law, georgia law with the exceptions have been implemented, the impact of the hospitalization requirement in georgia, for example. so all of the assertions of sociology and history and psychology in the roe vs. wade and doe vs. bolton opinions are based on assumptions, not derived from the adversary process we normally expect of courts in making good decisions. host: do you think there would've been a difference if
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there had been testimony? ms. murray: i think there would've been a difference. you would've had more of the social context at the time. there would have been discussion of the german measles crisis, which prompted many women to try to seek abortions to prevent birth defects. there was a drug that came around in the 1960's that caused birth defects. there would've been more discussion about women who were locked out of abortions. i think that would've been part of the record and could've made for a more fulsome discussion. host: let's take our first phone call. hi, josh. what is your question? host: i've got two quick questions. -- >> i've got two quick questions.
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does the trimester framework still apply in abortion restrictions today, or was that overturned when justice o'connor talked about the point of viability? my second question is, do you think that the justices believed that this was a good compromise, considering that warren burger joined the majority opinion? host: thanks. we are going to save the second question, because we are about to talk about warren burger. is the trimester standard still law? mr. forsythe: in planned parenthood vs. casey in 1992, the court completely overhauled roe vs. wade. they abandoned the original rationale for roe. they adopted a new rationale and kind of abandoned the trimester and turned it into a bimester, meaning that before viability, there are certain standards, and after viability. but there is no trimester. it is now bimester with viability a dividing line. host: next is a call from terry in palo alto, california.
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welcome. >> thank you. i am really interested. the first clip showed the context as being feminist and civil rights introduction to the abortion-rights discussion, and i'm 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 with just standing, might be compared to a man and his doctor, having the right to make equally momentous decisions , if the guest might comment? host: thank you very much. ms. murray: i think you have
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presaged a line of argument that justice ruth bader ginsburg offered in the 1980's. she famously criticized roe vs. wade reliance on the privacy doctrine and said the decision would've been better housed as a sex discrimination decision, we should have thought about abortion and access to abortion as equal to women's equal citizenship, rather than cloaking it in the guise of privacy and that would've addressed at the core issues at the heart of it, which were in eclipse by the privacy framework. host: but that route would fairly admit that roe vs. wade was wrongly decided, and the original rationale was wrong, and it would simply ignore a major state interest that the court has said exists. that is the states have an interest in maternal health, but they also have an interest in the life of the unborn child. so that would simply ignore one major state interest that the court has recognized since 1973,
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admit that roe was wrongly decided. host: tom larkin makes this comment any comments for him on that? was the doe case a pseudonym? >> yes. host: next up is dave in tallahasse. >> thank you for another great series. my question is, did the court at any point discuss when does life begin? i would like to know with both of your guests, when do they believe that life begins? mr. forsythe: well, the court did address it in roe vs. wade, but they did it in a rather dismissive way. there were no facts, no trial,
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no evidence. they didn't have evidence about fetal development in the record, but the attorneys who argued in roe and doe did address that, but not for the record. the court basically dismisses it and says, we, in the majority opinion, we are very familiar with the facts of fetal development, but then, as they decide the unborn child is not a person under the constitution and not entitled to constitutional protection. host: any more on that answer? richard in st. petersburg, florida? >> yes, they said person who did not exist prenatally. at 8 1/2 months, you're not a person. we've had lots of bigotry through our society. do native americans have souls? hopefully, one day, we will outgrow such stuff. if anyone were to submit a paper to a science journal claiming there was doubt that a
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fertilized egg of a gorilla, whether or not it represented a new individual gorilla, they would be laughed to scorn around the block. i would like to ask our gentleman about his important point about the lack of factual record in the case. in the case before congress a few years ago -- at least there was the opportunity to have a factual record. one of the things thrown out by the anti-life side, you do not have to worry, because procedures telling them they would kill the baby. the president of the american college of the theology said you are endangering women and babies in the country for doing necessary other things the anesthesia procedures telling
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them that that would kill the baby. these lives have long tentacles. -- these lies have long tentacles. host: response? mr. forsythe: it brings up a lot of points. certainly, we have learned a lot more about fetal development. -- as you know, you can hear the original arguments and read transcripts of the original decision. the word ultrasound never appeared in the arguments or the briefs because it only came out in the u.s. marketplace a few years after the decision, but that has permanently changed public opinion. in the court's most recent decision, which i think we can talk about, in 2007, the majority opinion does recognize, perhaps more specifically than
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in previous decisions, that pregnancy involves a living human organism and that is perhaps the most expressed the court has been in 42 years. host: did the judge it knowledge -- acknowledge the fact that medicine was at a certain state? ms. murray: the judge had been a general practitioner at the mayo when it. he was well versed in medical procedures. between the two different arguments, he went back to minnesota and spent most of the summer in the library at the mayo clinic researching the procedure. at the time, his opinion has a long description.
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medical technology was not as advanced as it is today. the monitoring procedures we had were unheard of them. the idea that you would have robust knowledge of fetal neonatology was unheard of at the time. let's talk about the warren burger court. what were the dynamics of it? ms. murray: it was a very different chief justice than earl warren, who preceded him. he was a circuit judge appointed to the d.c. courts. it was burger who suggested that harry blackmun be a nominee for the eighth circuit. he was a champion of harry blackmun. i think when blackmun joined the court, burger really expected that he and blackmun would be of a single mind, and indeed, the
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press thought so too. they called them the minnesota twins. certainly, there are judicial philosophies converged over roe vs. wade, and at the end of their lives, their friendship was really in tatters. the court itself felt the strain of that tension. berger was famously idiosyncratic in terms of his love of celebration and pomp and circumstance. that often wore on certain members of the court. host: so, when the court was prepared to hear this case for the first time, it did not have the full complement of numbers. can you talk about why? mr. forsythe: the court originally took the case is not originally -- originally took both cases not to decide the abortion issue. they took the cases to decide younger versus harris, a divisive case that had been decided just 60 days before the court took roe and doe. and it involved whether civil rights attorneys good take cases
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-- attorneys could take cases from state court into federal court. and that kind of general factual scenario applied in row and do. they took these cases to decide if younger applied in these cases. in 1971, justice black and justice harlan retire within the space of a week due to ill health. black dies the next week. justice harlan dies -- black dies at the end of the next week. justice harlan dies at the end of 1971. and any temporary majority can decide cases. for 15 weeks between 1971-1972, there were 15 weeks where the four want to decide as many cases as they can, and they decide they want to use roe vs.
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wade to sweep away abortion laws, and they want to do it before vacancies can be filled. although they are not able to do it on that timeframe, they create such momentum that by the time of the vacancies are filled, the cases are pretty much decided, and it is only a question of how they will be written. ms. murray: it was not quite as nefarious as that. even though they were down to justices, they wanted to pick out the ones that would be cases they could decide with seven justices. take out the controversial ones and focus on the ones that would not be controversial. blackmun writes in his notes that he and potter stewart misjudged roe vs. wade. potter stewart thinks this is going to be a straightforward application of younger versus harris, the federal court
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extension case, and in fact, it is a much more controversial issue. blackmun later admits they bungled that. host: here are the questions before the court as they consider roe vs. wade. first, it would criminalize all abortions except to those medically deemed necessary to save the life of the mother. does the right to privacy include the right to obtain an abortion? are there any circumstances where states may enact laws prohibiting abortions? does the fact that roe's pregnancy was terminated prior to the case render her argument moot? next, we are going to listen to some of the oral argument could -- arguments.
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this is from december 13, 1971. >> regard as the circumstances of conception, whether it was incest, she has no release. a pregnancy, to a woman, is perhaps one of the most determinant of her life. -- aspects of her life could -- life. it disrupts her body, her education, her employment, and often her entire family life. we feel that because of the impact on the woman, this is a matter 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 terminate her pregnancy. >> there is nothing in the united states constitution concerning birth, contraception, or abortion. we do not agree with the
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appellate statements that the woman has a choice, but as we previously mentioned, we feel this choice is the woman's prior to the time in which she becomes pregnant. host: because our goal is to understand the people involved in these cases, i have read a number of descriptions of how the case was presented. peter irons, in his book, suggest the justices were very frustrated by the end of the oral arguments because the attorneys did not give them constitutional reasons for their arguments. can you add more to the understanding of what happened in the courtroom? mr. forsythe: because they took these cases to decide younger versus harris, the first arguments, and again, listeners can hear them online and read the transcripts. it is best to listen to the arguments and read the transcripts at the same time so you don't miss anything -- the first arguments are mostly concerned with questions about jurisdiction and procedure, questions like who has standing,
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is it moot, who should have brought these cases, should they have gone to the court of appeals first? there are very few substantive questions or answers until the end. at the end of the first argument, one of the attorneys for the plaintiffs kind of sums up by saying quickly at the end, and we appeal to the right of privacy and the ninth and 14th amendments of the constitution as the basis for our case, in kind of a rush like that. but, the first arguments are consumed with procedure and jurisdiction. that is one of the problems. host: what more can you tell us about these two attorneys who argued the case before the court? both for the first time. ms. murray: there was a question of constitutional avenues, and one of the things they focused
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on was whether the texas laws work constitutionally vague. -- were constitutionally vague. there were other kinds of constitutional theories that could have been used in the case. there was an interesting, kind of funny, if not misogynistic moment at the beginning of the argument when jay floyd notes that with these two pretty young ladies by his side, they are sure to get the last word. he played it for a laugh and failed miserably. he was greeted with stony silence. one reporter wrote that it looked like war and burger was about to come down from on high and discipline him himself. mr. forsythe: the attorney general and the solicitor general play that tape for their students in classes of how not to do this. host: john is watching us on twitter.
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how could you start with a joke like that? forsythe: what he wrote was quite fair, 17 pages, mostly dealing with disability and only three pages dealing with the substance of the merit. that was like a lead balloon to other members of the court who found it unsatisfying. host: some have suggested that a justice exploded with rage over the opinion and also over the thought of rehearing the case. what can you add to our knowledge of what happened behind closed doors? mr. forsythe: i think it's -- >> there was broad consensus was the statute in roe ruled unconstitutional for vagueness. douglas, felt that
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because there was no consensus --to know -- on doe burger assigned blackmun to write this. what he wrote was actually quite fair. 17 pages, mostly dealing with disability and only three pages dealing with the substance of the merit. that was like a lead balloon to other members of the court who found it unsatisfying. host: some have suggested that a explodedwill douglas with rage over the opinion and also over the thought of rehearing the case. what can you add to our knowledge of what happened behind closed doors? mr. forsythe: i think it's important to understand that when berger replaced earl warren, the liberals on the court, among them douglas and brennan, could not stand burger.
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nixon had campaigned against the war in court. -- warren court. he appoints burger to change the warren court. his assignment of opinions was viewed with skepticism. this is only like a second or third term. douglas did doubt his integrity. in january, when rehnquist joined to the court to make a full bench of nine, burger makes a motion -- not in order, but a motion to have the cases reargue to. reargued.argue douglas and brennan are very skeptical about this because they think it will flip the balance and result in a 5-4 decision against abortion rights.
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that crisis renews in may and june when justice blackmun distributes his first draft opinion and again the motion is made to reargue the cases in the fall. the justices explode, especially justice douglas. he writes a scathing dissent that he wants to issue before the end of the term condemning burger for allowing the manipulation of the court. he holds that dissent, but it sneaks into the press and is on the front pages of the washington post on the fourth of july weekend and gets on the front page of the new york times the next day, which raises tensions that it will be re-argued and it was re-argued in 1972. host: we should also note that there was a presidential election going on. the court always envisions
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itself as being distant from the political process, but in case after case in this series, we have learned that there are political influences that find their way into the court and the proceedings. what about in this case? ms. murray: the election as the -- election of nixon and mcgovern dominates the backdrop against which the court is doing all of this. nixon is an interesting figure because he actually is in favor of liberalizing abortion at one point in his career. but as he takes on the much more liberal mcgovern, he begins to play up his only names. -- own antiabortion leanings. his stance on crime is more articulated. it's all done to position himself as the anti-mcgovern, and he wins in a landslide. the court speculated, and there is strong evidence for it, justice burger delays releasing the opinion in roe vs. wade
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election andhe nixon is inaugurated. the decision is released in january 22, just after nixon inauguration. dreadreddes of scott. so, we are going to listen to the second oral argument. as you mentioned, there is a new attorney representing the state of texas, robert flowers. do you know anything about him that would be important for people to know? mr. forsythe: he was an assistant attorney general who did a better job, but still, the arguments are limited by the fact that there is no trial, there is no record, there is no evidentiary proceeding. so, the justices ask the attorney questions about substance, history and abortion that they have no basis for answering.
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in both arguments, there are lots of times when the attorneys say, "i don't know," because they have no factual record on which to rest their answers. host: again, this is october 11, 19 72. -- 1972. >> under the federal constitution, is a fetus a person for the protections of the clause? >> all cases in common-law history would indicate it is not. ift's what you lose the case the fetus was a person? >> then you would have a balancing of interests. though, the balance of the rights of the mother and the fetus. >> it seems it would be balancing the rights of the person, the mother, and the statutory rights of the fetus. >> we have a person, with an
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concept of the constitution of the united states. is that not true or true? the medical profession itself does not agree. >> i think that is true. standpoint,n's medically speaking, we would save it at the moment of chromosome,from the every potential that anybody in this room has his present at the moment of conception. >> then you're speaking of the potential of life. >> on the seventh day, i think the heart in some form starts beating. host: what is different about the second time around? ms. murray: you are definitely getting more substance. less issues. one of the things that is spoken about is
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connecticut's antiabortion statutes. they discussed that, as well as the ninth amendment. there's more grist for the mill in this argument than in 1971. host: we are going to take a few phone calls then hear from judge harry blackmun himself about this case. let's hear from herbert in chicago. highi, herbert. caller: i have a couple of questions or points. did any of the decisions by any of the justices talk about when life begins in the decision? also, whether any friends of the court briefs filed on behalf of the unborn child? i like to listen to your response. host: we did take the first one before, but will you answer it again? mr. forsythe: the justices only in passing talk about their familiarity with fetal
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development, but there were amicus briefs filed that presented pictures of fetal development in prenatal life. in fact, the attorneys argued that we have exercised sarah weddington and the texas attorneys in roe vs. wade, but there are arguments and transcripts in dover versus bolton. -- doe vs. bolton. although sarah weddington has gotten a lot of media over the decades, the assistant attorney general for georgia argued both rounds of arguments. she is regularly touted to be the best or a list in both of these cases in both rounds of arguments. you can listen to this online and hear the argument. they made arguments about constitutionality and fetal development.
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it is a very strong argument in support of the georgia statute. >> we go to marvin in los angeles. caller: is roe vs. wade established law or is there any case that could come through the lower court system that could overturn roe vs. 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. so, is it established? is it safe? or is there a case coming through that might overturn it? ms. murray: it is established law. is it safe is a different question. based on a lot of different things, you could have a decision that completely overrules roe vs. wade. we have certainly seen the court overrule opinions they believe were incorrectly decided. i think the more likely thing to happen that might endanger it
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would be intermittent chipping away of the decision, which i think we have seen over time. i think the idea of a complete overruling might be more remote, that the idea that there might -- but the idea that there might be incremental restrictions might be something to think about. host: could there be a legislative response? mr. forsythe: well, the states are often regulating to protect maternal health and fetal life, and that creates what comes into the courts. i would add to that roe vs. wade was substantially overhauled in planned parenthood versus kc. so, the original opinion is somewhat defined and has been superseded by planned parenthood versus kc in 1992 -- casey in 1992. but roe is completely unsettled. the justices could in any particular case in which a state statute arguably conflicts with it revisit roe vs. wade.
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they won't do so in the short term, but they could, in any case. they won't do so in the short term, but they could. perhaps the caller was also alluding to the fact that by the time of the next presidential inauguration, four justices are going to be 80 or on the verge of 80. the next president, one way or another, may affect the future of the supreme court for the next quarter century. ms. murray: it's a bit of an overstatement to say that roe vs. wade is defined. it,ainly, casdeyey overhauls but the decision, the corbett, survived casey. host: the court ultimately ruled 7-2. i want to ask you in a moment how we got to that vote, but first, keith in minnesota, you're on. caller: there has been talk, discussions about the rights of
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the unborn and the rights of the mother. has there ever been discussion about the paternal rights? host: you are shaking your head yes. ms. murray: not in roe vs. wade, certainly, but in other cases. there is a provision of misery law that requires a woman seeking an abortion who is married to get the consent of her husband. that was part of casey. both of those decisions are invalidated by the court in both of those cases. other cases deal with paternal rights. there is a 1971 case called stanley versus illinois that considers the rights of unmarried fathers. those decisions often interact but are not necessarily understood as being on the same track. host: let's listen to justice
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harry blackmun about writing this opinion. justice blackmun: i think at the conference after the first argument, the chief justice sent the -- sensed the sensitivity of the argument and of the issue, rather, and i think probably preferred not to assign it to himself, as he could have. there were personal reasons also. family reasons, i think. douglas, i think, wanted the case, and i don't think he would misunderstand this comment on my part.
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bill was in the waning years of his service, and was not writing as well as he did in prior years. he would've treated the case rather preempt early -- preemptively. should brennan write it? at the time, he was the only roman catholic on the court. i think would've resulted in his sustaining a lot of abuse, even though he didn't write it. host: do you think he wanted to write it? >> i don't think he did, but i think he was firm in his view. one can go down, the same with thurgood marshall. he was the only african-american on the court at the time. i think it would have been hard and a little unfair. host: some interesting backstage dynamics explained at the heart of all of this and justice blackmun writing the majority opinion. what did you think of that? ms. murray: i think it's great to think about the different
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personalities and the way these decisions are assigned. what i think he wanted to write the opinion. -- what i think is that he really wanted to write the opinion. he had spent time writing an original draft when there was a motion for re-argument. he worried that after all of that investment he would not be the one to write the opinion, that it would be given to another justice. i think he protests a little too much. there are reasons for the others not to write it, but i think there are reasons for him to write it as well. host: what you have to say about the dynamics of the court that we just heard justice blackmun talk about? mr. forsythe: it was an unusual time at the court. it was a unique time, the 1960's, the sexual revolution, the two vacancies.
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there was a lot of turmoil in the court. this created a crisis within the court at any number of points. what is interesting is that when justice powell and justice rehnquist joined the court, there was so much momentum that they could not have reversed it if they wanted to. at the end of the day, justice powell joined. at the very end, chief justice burger joined and switched it from a 6-3 decision to a 7-2. host: here were the questions for the court again. we will go through them quickly. do laws that criminalize all abortions, except those required on medical advice to save the life of the mother, violate the constitution? the court said yes. does the 14th amendment's due process clause protects the right of the mother question privacy, the court said yes.
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here is a bit of justice harry blackmun's opinion. it was how many pages long, in total? ms. murray: around 50. host: so this is a quick glimpse. this is the concept of personal -- but enough to encompass a woman's decision, whether or not to determine her tendency. and from justice byron wright's dissent.
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and is host: the court that day, for example, we learn that justice blackmun invited his wife to come to the court to listen to him. he decided to read the summary. how often does that happen in court cases, where the justices read their summary from the bench? mr. forsythe: reading an entire opinion is rare. a short summary happens now and again. it was not really out of the ordinary. host: and what do we know about the dynamics in the courtroom that day? ms. murray: we know that justice powell sent a note to dottie blackmun telling her she should be very proud of her husband on that day. she was in the audience. powell was one of the newest justices. he joined with william rehnquist. he was kind of a wildcard. blackmun was very glad when he endorsed roe and actually pushed
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back on designating when life came into being. he wanted to expand it to viability. host: the day became historically notable for another reason. lyndon baines johnson died that day, and that really dominated the headlines. how long did it take for the media to catch up with the importance of this story? mr. forsythe: it was on the front page of "the new york times," below the fold. johnson's death is the leading headline on january 23. but it was announced by walter cronkite. what is significant, i think, about the earlier media announcements is that the media almost consistently says that the right to abortion is limited to the first three months and we know that is inaccurate.
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but that was the initial message the public got. we know that when you look at roe and doe together and you look at the viability rule in roe vs. wade, but dover's is -- doe versus bolton looks at all factors, that unlimited health definition requires the states to perform abortion even after fetal viability. so, the press got it wrong and has continued to get it wrong. host: we always talk about the impact of the decision on the court and on society. we begin with harry blackmun talking about what public reaction was in his mailbag after this decision. justice blackmun: there were the expected comments to the effect,
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your mother should have aborted you, or i have been praying for your immediate death. much of the correspondence is abusive. i suspect i have been called every possible apathetic on name -- epithetical name, pontius pilate, murderer, herod, madman, and the like. i suspect i can out run chief justice roger toning. host: reaction? ms. murray: he certainly got blowback for this. there were calls, just as there had been to impeach earl warren. there were more vociferous calls to get rid of harry blackmun. this was a defining moment in his life as a justice, and he would go on to do many great things on the court but he was
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defined by roe vs. wade. host: what are your comments? mr. forsythe: the justices completely underestimated the public opposition that there would be. there was discussion in various memos and deliberations in the two years leading up to row e about how this would be criticized by the media, but of course, the public opposition and public anger has been more significant and resulted in hundreds of state laws attempting to eliminate the right to abortion as well as constitutional amendments presented to congress in hearings from 1973-1980 three. -- 1973-1983. the justices completely underestimated where the public was. host: let's go back to phone calls. next up is nathan in bishop, texas.
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caller: i have a question. hold on, real quick. why couldn't a supreme court decision be handed down directly to the states under the 10th amendment, since it is not found in the constitution? why can't it be handed down directly to the states under the 10th amendment? mr. forsythe: or why has the 10th amendment not been a relevant consideration? the court has never considered the 10th amendment to be a blockage to its decision in roe versus wade. in effect -- host: what does the 10th amendment do? mr. forsythe: it reserves power for the states, but the court, in effect, said the 14th amendment supersedes anything the 10th amendment might say. ms. murray: although there have been cases in recent years that resurrect the more robust view
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of the 10th amendment. host: david is in tracy, california. caller: what do you think could have or should have happened that would have settled this issue once and for all? ms. murray: that's a tough question. what could've been done to settle the issue once and for all? i do agree with clarke that a more robust factual record would have made clear what the stakes were for the many women seeking abortion who were unable to get them. i think it would have also made clear what the states were seeking to regulate, whether it was in the case of maternal health or the case of immorality, which some of them are quite forthright about. one of the issues of roe vs. wade is that you don't have that record, see you don't get the -- and for that reason, you don't get the voices of the many
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constituencies affected by this decision. mr. forsythe: some issues in a democracy are simply not finally settled, and may take decades to settle, especially issues with such strong cultural current. but i think it's clear that roe vs. wade has unsettled this issue more, and if it had been left to the people, it would have provided the opportunity for public opinion to effect public policy and be more in line with public policy. the fact that public opinion is so out of sync with roe vs. wade that it has kept this issue simmering for the last 40 years. ms. murray: we could say that about a lot of issues. segregation is an issue that, if left to public opinion, would have come out very differently. there is a role for the court to play regardless of public opinion.
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certainly, those who have defended roe vs. wade. that.d have spoken about there may have been backlash, but it wasn't clear that the democratic process would work in a way that would vindicate constitutional rights. host: is it fair to say that the criticism of this case does not fall neatly into a liberal-conservative divide? ms. murray: i think it's fair. it stands a lot of different constituencies. people, justifiably, reasonable people disagree on this question, and do. i think the larger question is what is the court's role in this process and when should the court intervene when the political process breaks down? we've talked a lot about reform efforts. they had stagnated. that is the reason there were so many cases the pipeline at the time this was decided. the process had broken down.
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mr. forsythe: a big difference is that brown versus the board of education was based on reconstruction, based on the 14th amendment, particularly designed to detect the rights of freemen. -- of the freedmen. in roe vs. wade, there is no history in anglo-american history of an abortion right. the court was not relying upon history and text of the constitution could -- constitution. it was creating something wholly new. the justices, in reconstructing -- in implementing reconstruction amendments, it is something that's part of judicial character and judicial function. ,ut, the court's opinion here as the the ex officio medical board with the power to approve and disprove medical practices
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through the united states, it is not a role judges can do. they cannot be the national abortion control board, and the 42 years has shown that very clearly. ms. murray: in grizzled versus connecticut, that speaks to the right of privacy and constitutional guarantees, and roe vs. wade is rooted in griswold. it also speaks of the ninth amendment. not as clearly, but again, this idea that not all constitutional rights are enumerated in the constitution. the constitution does not necessarily exhaust all the rights that people retained it -- retain. mr. forsythe: but again, i think the distinctions are stark. in griswold, the court acted like a court of judges and invalidated the statute, whereas in roe vs. wade, the court did and just invalidate a texas -- the court did not just invalidate a texas statute, it rewrote a national statute of considerable detail that it has been forced to administer. that is completely different, and it has completely reinvested
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this court in the issue year-to-year. the only way that the court can really set up the issue is, to some extent, by relinquishing its role here. host: robert in dallas, you are on the air. i. hi, robert. caller: i want to confirm my understanding that sarah weddington was judge syracuse's former law clerk, and when the case was filed in dallas, it may be more than a coincidence that it ended up before judge syracuse. are you aware of any background that? ms. murray: she was not her clerk, but her cocounsel. linda haughey, had been the clerk. when they were filing in austin, they decided they would have a better shot near dallas because judge hughes was likely to be
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part of the panel. i don't think it was necessarily angling, but it was certainly a degree of shopping. host: you said earlier that you didn't think that the personalities in this case were quite as large as some of the earlier cases we did. but, there is an interesting art to this story. we have some video to show our audience of how sir weddington has changed camps. -- of how roe has been involved in this issue. she has changed camps. >> i don't think i have enough time to sell the spirit want to say -- to say all of this. i want to take the opportunity to apologize to each and everyone of you here today. i am sorry. i have asked jesus into my heart. what can i say? i love jesus and i love all of you. thank you. fax what a journey this has
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-- >> what a journey this has been, right, guys? how many of us love jesus? [applause] >> how many of us want to see roe versus wade overturned? [applause] >> this is the day i have been waiting for. when we filed 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 overturned like our great president george w just said. [applause] >> god is good and jesus is. host: every year on january 20 2, there is a large margin washington, d.c., and she has been a speaker for many years at that rally. what happened?
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mr. forsythe: suffice to say, she completely changed her visa -- her views and she became, basically, a pro-life activist. she testified before congress more than once in support of overturning the decision. she and the married to in doe in doe versuse bolton both filed to overturn the decisions. but their motions were denied and the court refused to hear those cases, refused to reopen them. ms. murray: which is not to say the supreme court has turned a deaf ear to them. justice kennedy cites sandra cano's brief in upholding the partial-birth abortion ban.
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they do receive an audience. host: do you happen to know any more of a norm is story and what norma mccorvey and what changed her mind on this issue? ms. murray: she became a born-again christian and her faith is what changed her mind. host: let's take a call from john. caller: thank you very much for the fairness of this. it was my understanding in the bolton versus the georgia case where sandra cano never wanted an abortion. an attorney traitor by -- an attorney tricked her by putting in the papers that she wanted an abortion. the second thing is, talking to most gynecologist-obstetricians, they feel the life of the mother is really not at stake because we now have a c-section, which
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can protect both the mother and the baby. this case, roe v. wade, is rooted in griswold. that said that the right to privacy retained to things like contraceptives. contraceptives. isn't it a tremendous stretch to go from, "i have the right to to, "i have the right to kill an innocent child?" the question to melissa, and the gentleman, with all due respect, yes or no, do you consider the baby in the mother's womb a human being? the reason why that is so important is because justice blackmun said if we know that life begins at conception or before birth, we have to revisit this. host: i'm going to let you go because we have a little time and lots of questions on the
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line. ms. murray: just to make clear the bridge between griswold and roe, another case went before the court dealing with contraception. they're the court is considering the court is considering whether the law that prohibits selling contraception to unmarried people is constitutional. the court writes that the right of the individual to decide whether or not to bear or beget a child is the right of the individual, not necessarily a married couple. in griswold, it goes on to say what a couple lives. that language speaks of a fundamental right to determine whether or not to bear or beget a child. that furnishes the underpinnings of roe vs. wade. forsythe: this is an
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equal protection case. as the history shows and the papers of the justices show, justice brennan was writing eisenstadt at the time of these decisions and envisioning addressing the abortion question, he puts this paragraph about privacy that was complete dictum into the equal protection decision for the very reason that they could use it in roe vs. wade. but, maybe to address the second part of the caller's question, i do believe that science shows that the life of the human being begins at conception, but what is really more important for our discussion tonight is that the states have progressively strengthened their prenatal injury law, wrongful death laws , and fetal homicide laws to the extent that 50 states have laws
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that protect the unborn child. we have laws, wrongful death laws in 36 states that protect the unborn child. there are fetal homicide laws in 39 states protect the unborn child. that is a very significant show of public opinion support for fetal protection. host: the guest has referenced many cases that have come before the court for the past 42 years have considered some aspect of abortion. your book has 29 depending on how we count those. we are going to put some of the names on the screen. you have heard references to them. the last one was before the roberts court, whole woman's health versus coal, which is not yet on the schedule. so, as we look at that, let us listen to marianne in pennsylvania. marianne, your comment. caller: i am a physician in philadelphia and i have two things to say. i find it so painfully inconsistent that the child in
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the womb has no rights, but when scott lacy killed his wife and -- scott peterson killed his unborn child,d his he was accused of killing two people. a law made a woman wait 24 hours and if under the age of 18 have parents consent. karen's consent. consent.'s what did the attorneys have to say about that? ms. murray: this is the case you were referring to, a 1992 case from southeastern pennsylvania. the court is considering pennsylvania's abortion control act that has a number of provisions. one requires parental notification. the other requires a 24-hour waiting period. another one requires power solidification. -- spouse notification.
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the court affirms the essence of roe vs. wade but scales back and dismantles the trimester framework and the standard of review required for abortion cases. so, the scrutiny has been lowered, and the idea here is that abortion regulation will not be considered constitutional if it imposes a substantial obstacle to the woman seeking the abortion. the waiting period is not held to have a substantial effect, or parental notification, that -- but spousal notification is struck down under the standard that it renders women subordinate to their husbands. husbands do not have the authority to unilaterally invoke this kind of veto. importantly, the court is worried about about domestic violence and coercion in these relationships.
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mr. forsythe: roe vs. wade focused only on abortion. it did not address fetal homicide law, wrongful death law. it left it to the states to enhance fetal protections in those areas, and the states have done so. fact, halfhave, in of the states with fetal homicide laws that extend protection from conception, but have got this supreme court edict across all 50 states allowing virtually abortion on demand at any time for any reason, and that has created, because there is such attention -- a tension here, that has kept to the issue simmering for 40 years. host: the issue is certainly simmering in the presidential campaign this year. and, hearing another case, congress itself, with the issue of planned parenthood funding, up until very recently, the
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threat of a government shutdown hinged on funding for planned parenthood. the guest has made the case, this continues to really be debated in american society. our next clip is to senators on the floor of the senate on the anniversary of roe vs. wade in january of this year. >> even before america's founding, the law was on a steady march toward protecting human beings before birth. through the 19th century, medical professionals and civil rights activist's lead a -- activists lead a movement that succeeded in prohibiting abortion in every state except to save the mother's life. america had reached a consensus on protecting the most vulnerable. unfortunately, the supreme court swept all of that aside, imposing upon the country of a permissive regime that to this day the american people have never chosen or excepted. >> it is hard for me to believe
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that here, i stand, in the century arguing that women should be respected, that families should be respected, that everyone's religion should be respected. i support a woman's right to choose, and that means if your religion says you will never end your unwanted pregnancy, i support you. i believe this decision should be between a woman, her doctor, and her god, and her family. i don't think any united states senator should get in the middle of a woman's private life. host: as our program is quickly coming to an end, i am going to move from two united states senators talking about roe v wade to give you the view of two justices talking about the decision. ruth bader ginsburg and antonin scalia. let us listen in. justice ginsburg: take the worst-case scenario, roe vs. wade is overruled by the supreme court.
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there will be states, a sizable number, that will not go back to the way it was. at the time of roe vs. wade, there were four states that gave women access to abortion without any questions asked in the first trimester. those states are not going to change. what it means is a woman who can afford a plane ticket, a bus ticket, will be able to decide for herself. whether to have an abortion. but the women who won't have that choice are poor women. justice scalia: these are political questions for the american people to decide. that is about. -- that is what democracy is about. do you think abortion should not
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be prohibited? fine. persuade citizens to pass a law. but don't tell me the constitution has taken that issue out of democratic choice. it simply hasn't. host: there we have two members of the current court, and also united states senators, laying out the continued divisive arguments. we have only three minutes left. i want to get on the record the effect on the court itself. because, appointments for roe onward, this has been a litmus test. can you talk about the impact of this case on the selection of justices for the court? mr. forsythe: it has been a litmus test ever since probably 1976.
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justice stevens' nomination was probably the last in which it wasn't an issue or much of an issue. so much evidence has skewed judicial appointments to the court. it has become a disproportionately emphasized issue. when you take into consideration all of the other serious, statutory, constitutional, and policy issues that are addressed on the court and that have skewed consideration, i think that has been to the detriment of the country and the court. ms. murray: one of the interesting stories about wrist bader ginsburg's confirmation was that president clinton -- -- clinton worried about appointing her, because she had written an article about roe vs. wade and he worried that she was against it. it turned out she was just against the reasoning. it is a litmus test and it plays out in different ways. >> closing now for both of you,
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how should people think about this case and its impact on our society and on the court? and where does this country go from here given the heat around this issue? ms. murray: this is an issue where very reasonable people can disagree. some people on one side think issue about women's right to participate equally in society. others focus on the life of the unborn child in question our democratic process. those are hard things to reconcile. i think we're trying to play it out. every so often, the court intervenes in either takes us in one direction or another. mr. forsythe: i think 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, and the best thing the court can do is return the issue to the
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american people where public opinion, and public policy would be allowed to be more in sync, and that would, i think, alleviate a lot of the tension on the issue, and restore public opinion to its rightful place and determine the outcome of this issue. host: we are at the final moments of our landmark cases series. thank you so much for being with us throughout the 12 cases. the series is archived on our website, you can find it easily under the series. we have video from each of the 12 programs there for you, including the other videos that did not make it into the television production, visits to historic sites and oral histories from people involved in these cases. you can also read opinions and hear audio on our website. finally, if you would like to have landmark cases on your bookshelf, that's also available and we can get it out to you very quickly.
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thanks to our two guests tonight for being with us. we learned more about the background and the importance of the roe vs. wade in 1973. thank you for your expertise. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit]
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>> a live look at the white house and u.s. capitol as washington, d.c., and much of the northeast braces for a winter storm making its way up the coast. forecasters are predicting as much as two feet of snow in the nation's capital this weekend area d.c., maryland, and virginia are all declaring us eight of emergency -- a state of thegency as a result of winter weather. earlier today, pro-life advocates were on the national mall for a march for life rally. those speaking at the rally , and iowaarly fiorina senator and a new jersey congressman. we also heard from leaders of various pro-life organizations. this is just over an hour.
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patrick: my name is patrick kelly. i am honored to serve as the chairman of the board of the march for life. on behalf of the board and the whole march for life team, i would like to welcome you to the largest annual civil rights demonstration in the world. before we begin, let us join together in the pledge of led by a member of the knights of columbus council at george washington university. >> i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation, under god, indivisible, with liberty and justice for all.


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