Welcome to I Am Roe, Hear Me Roar!
I’m your host, Kelley Keller. This podcast recounts the journey of Jane Roe, Henry Wade, their cataclysmic meeting in the United States Supreme Court, and the ensuing aftermath.
The show will focus on asking and answering the following questions:
So, please join me on this fascinating journey as we unpack the ongoing fight for abortion rights in America that no one actually seems to be winning.
Episode 5: Abortion Law and the Rise of Regulation
On this episode, we begin by acknowledging that abortion was returned to the states on June 24, 2022, with the Supreme Court decision in Dobbs v. Jackson. This meant that state laws banning abortion could no longer be overturned on the grounds they violate a woman’s Constitutional right of privacy. Whether laws that restrict abortion are acceptable is to be addressed democratically by the people.
Next we discuss the fact that there are seven types of restrictions states can enact, related to costs, delays, availability, and consent. So, even though one has a “right” to something, it’s another thing to be able to exercise that “right.” While women theoretically have had a right to choose to terminate a pre-viability pregnancy, regulations, including public funding bans, have certainly burdened access to that right.
We close out with a preview of the next episode where we’ll illustrate “regulation in action” by dissecting Pennsylvania’s Abortion Control Act, which has been the subject of not just one, but three Supreme Court decisions, including the famous 1992 decision – Planned Parenthood v. Casey.
EPISODE 5: ABORTION LAW AND THE RISE OF REGULATION
This is episode 5 of I Am Roe, Hear Me Roar!
As I was planning this podcast, my team and I were gearing up for an end of June/early July launch, in order to align with the Supreme Court’s opinion in the “big abortion case” – Dobbs v. Jackson – pending before it. Given the magnitude of the case and its potential impact, I assumed it would be one of the last opinions issued by the court for the current term. And, that proved to be true. What I didn’t expect though was for the draft opinion to be leaked in early May.
The leak is what we call a “chance event” in strategy – while we knew that abortion rights were on the chopping block, we weren’t expecting the leak or the attendant controversy, anxiety, and disruption to come as early as it did. This meant that I needed to adapt on the fly and launch earlier than anticipated so we could cover just enough background for the forthcoming Dobbs decision to make sense. We skipped most of the details, so we’re going to step back and catch up on the things we temporarily set aside.
Abortion law is extremely complex and, when added to the cauldron of politics, the details and nuances are often lost. But, they matter and there’s a reason they say the devil is in the details. In fact, many conflicts are won or lost in those same details. So, let’s devil-up and dive right back in!
The sole purpose of I Am Roe, Hear Me Roar! is to isolate the legal reality of Roe from the public perception of Roe, and to analyze the history of it and its legal ascendants in appropriate context. Then, and only then, can we understand where we are and define a realistic path forward.
With that – let’s figure out where we are right now.
As of June 24, 2022, abortion regulation has been returned to the States. This means that state laws prohibiting abortion before fetal viability cannot be overturned by the U.S. Supreme Court on the grounds they violate a woman’s Constitutional right to choose to terminate a pre-viability pregnancy. Note – women have never had the right to terminate a post-viability pregnancy absent an intervening medical emergency.
This limited Constitutional right was first recognized in Roe v. Wade and redefined in Planned Parenthood v. Casey 19 years later. The significance of Casey’s new definition of this “right” was an important distinction since it reclassified the right from fundamental to non-fundamental.
Under the Constitution, fundamental rights are sacrosanct and can’t be abridged by the federal government, except in very narrow circumstances. Most fundamental rights are enumerated, or written, in the U.S. Constitution. But, some are not, including a group of personal privacy rights, one of which was articulated in Roe.
We also have a slew of rights that are important, but not fundamental. These rights are protectable, of course, but not to the extent of fundamental rights. This basically means that non-fundamental rights are not superior to, but rather equal to, competing state interests in protecting maternal health and fetal life, effectively resulting in some infringement of those rights.
Let’s unpack this in the context of abortion.
If a woman has a fundamental Constitutional right to an abortion, then any laws that regulate abortion are, by their very nature, abridging this right. Now, abortion regulations are passed for the intended purpose of protecting maternal health and fetal life, so there’s a fine line between what is acceptable and what’s not vis-a-vis infringing a fundamental right. But what that looks like in practice varies from state to state.
Here’s some background on abortion regulation.
Abortion has always been regulated in the United States, whether at common law or by statute. Common law refers to unwritten law; while statutes refer to written, or codified, laws.
By the late 1800s, abortion was illegal on the books nationwide. That means there were written laws outlawing abortion in every state. But, by the 1960s, with changing social mores, states were slowly loosening their 19th century abortion restrictions. That process was sped way up with Roe v. Wade in 1973, given that it created a new set of rules for when and how states can regulate abortion. Basically, Roe made it extremely difficult to regulate the abortion procedure beyond the most minimal requirements to ensure a safe procedure for women.
Planned Parenthood v. Casey in 1992 chucked Roe’s rules and, in doing so, opened the regulatory floodgates, meaning that, so long as a regulation didn’t effectively prohibit a woman from having access to an abortion, it was legally permissible. As such, regulations burdening abortion rights have been on the rise for 30 years.
That begs the question, what exactly is an abortion regulation and what does it mean?
An abortion regulation is a law that does one or more of the following things:
(1) causes a delay before the abortion is performed;
(2) raises the cost of an abortion;
(3) reduces the availability of abortion by directly or indirectly causing the number of legal abortion providers to decrease;
(4) requires the pregnant woman to receive information about the procedure she has not requested and to provide informed consent;
(5) causes the woman to find the person/s whom the state has required that she notify or obtain consent from;
(6) causes the woman to endure any negative or hostile response from a person whom the state has required the woman to notify or obtain consent from; and/or
(7) takes away the power to decide whether to have an abortion by giving another person, usually a parent or spouse, a veto power on the abortion decision.
Most regulations implicate the first three of these – delay, cost, and availability.
Regulations requiring some form of notice or consent implicate the others.
As suggested above, before Casey, it was pretty tough for abortion regulations such as these to hold up for pre-viability abortions. That’s because they infringed on a Constitutionally protected right.
But, after Casey reclassified this right as non-fundamental, it was open season and the lion’s share of regulations previously struck down were now held enforceable, during all 9 months of pregnancy. Roe practically prohibited any regulation during the first trimester so this was a huge shift.
Now, to be clear, many of these regulations made sense because they were directly related to ensuring the health and safety of the pregnant woman; but many others were put in place as a way to restrict access and, as a result, reduce the number of abortions.
Mind you, all of this legal jockeying has been in progress for the last 50 years. In fact, once the pro-life movement shifted its focus from passing a Constitutional amendment regarding fetal personhood, they adopted an aggressive strategy to reduce access through aggressive regulation. And, they’ve had a much better success record than their pro-choice counterpart.
Legal strategy and execution matter – A LOT. And, make no mistake, abortion rights have been in a perpetual state of erosion since 1992.
In our next episode, I’ll illustrate exactly how this regulatory shift happened by looking at the evolution of Pennsylvania’s Abortion Control Act, first passed in 1974, which has been the subject of not one, but three U.S. Supreme Court cases, including Planned Parenthood of Southeastern Pennsylvania v. Robert Casey (then governor of Pennsylvania).
If you ever doubted the role of the law and legal strategy in abortion access, you won’t after listening to this!
Here’s the TL;DR
Abortion was returned to the states with the Dobbs v. Jackson decision on June 24, 2022. This meant that state laws banning abortion could no longer be overturned on the grounds they violate a woman’s Constitutional right of privacy. Whether laws that restrict abortion are acceptable is to be addressed democratically by the people.
When it comes to abortion regulation, there are seven types of restrictions states can enact, related to costs, delays, availability, and consent. So, even though one has a “right” to something, it’s another thing to be able to exercise that “right.” While women theoretically have had a right to choose to terminate a pre-viability pregnancy, regulations, including public funding bans, have certainly burdened access to that right.
We’ll illustrate regulation in action on the next episode when we dissect Pennsylvania’s Abortion Control Act, which has been the subject of not just one, but three Supreme Court decisions, including the famous 1992 decision – Planned Parenthood v. Casey.
Alright my friends, that’ll do it for Episode 5. Come back next time for the dirty details of the long and sordid path of Pennsylvania’s Abortion Control Act and how it struck a massive blow to the rights articulated in Roe.
As always, I appreciate you, your time, and your feedback … and I’ll see you on the next episode of I Am Roe, Hear Me Roar!
EP 4: The Day that Roe Died
Welcome to Episode 4 of I am Roe, Hear Me Roar.
This episode addresses the June 24, 2022 bombshell decision from the U.S. Supreme Court – Dobbs v. Jackson – which overturned Roe v. Wade and Planned Parenthood v. Casey.
We begin the show by exploring the core issue in Dobbs, which is the “fundamental right” to choose to have an abortion created by Roe.
First up, we identify what fundamental rights are and where they’re found in the Constitution. Then we take a deep dive into the Due Process Clause of the 14th Amendment since that is the source of the “privacy right” in Roe. This leads us to a discussion of the term “liberty” in the Due Process Clause … nor shall any State deprive any person of life, liberty, or property without due process of law … and how it was defined and expanded over the course of the 20th Century to includes rights of privacy under a doctrine called substantive due process.
We then shift to the test, or standard, used to determine whether a right should be included in the expansive definition of liberty and discuss how Dobbs applied it.
We round out the show by unpacking Justice Thomas’ concurrence in Dobbs and what it really means.
Finally, we wrap with a TL;DR about Dobbs, what happened, and where we go from here, now that abortion is back in the hands of the people.
Roe v. Wade – Supreme Court: https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137
Planned Parenthood v. Casey
Lochner v. New York
West Coast Hotel Co. v. Parrish
Griswold V. Connecticut
Washington v. Glucksberg
Moore v. City of East Cleveland
Dobbs v. Jackson Women’s Health
U.S. Constitution: https://www.archives.gov/founding-docs/constitution-transcript
U.S. Const. Bill of Rights: https://www.archives.gov/founding-docs/bill-of-rights
U.S. Const. 9th Amendment: https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-ix
U.S. Const. 14th Amendment: https://www.archives.gov/founding-docs/amendments-11-27#xiv
EPISODE 4: THE DAY THAT ROE DIED
This is Episode 4 of I am Roe, Hear Me Roar
If Roe v. Wade is the most famous abortion decision in the United States, then Planned Parenthood v. Casey is the second. Until June 24, 2022, they stood as the twin pillars of abortion jurisprudence in American law. They were, as they say, the law of the land.
49 years after Roe, and 30 years after Casey, the United States Supreme Court overturned both cases in a stunning decision called Dobbs v. Jackson Women’s Health. While Roe may no longer roar, she certainly casts a very long shadow.
Dobbs did it.
Dobbs overturned two of the most controversial cases in American law. Abortion has been returned to the states, where it will be regulated by the people via the democratic process, at least for now.
As an aside, it’s interesting to note that with Dobbs, the late Justice Byron White finally got his wish – for the court to get out of umpiring the abortion debate. He had to wait 30 years, but alas, the court is indeed out of the abortion umpiring business, which Justice White said does neither the court nor the country any good. On that, he was not wrong.
Americans were stunned on Friday, June 24, 2022, when the United States Supreme Court issued its opinion in Dobbs v Jackson which overruled Roe v. Wade and Planned Parenthood v. Casey, and a slew of other cases relying on them. Emotions have been running high and people have been in full-on freakout mode. While I understand that reaction, for those of us nutty enough to eat, drink, and sleep the development of abortion law, it wasn’t unexpected. In many ways, it signaled the end of a long, ugly, sordid legal story that would never have a happy ending, no matter how you sliced it. At the end of the day, you can put lipstick on a pig, but … it’s still a pig.
My initial plan for this episode was to dive into Planned Parenthood v. Casey and work through how states regulate abortion using that case as a backdrop. But given the breaking news (this is being recording on June 30, 2022), I’m going to push that off for a future episode and focus instead on the heartbeat of this issue – the constitutional right to have an abortion. How that right was initially recognized and how it was changed over the course of 50 years, is the single most important and single most misunderstood part of this entire process.
The Dobbs ruling, while expected given the leak from the court in May, has been accused of taking away 50 years of rights. That’s kinda true, but there’s a lot more to the story.
You see, there’s a presumption that American women have had a positive fundamental right to an abortion for 50 years. That’s simply not the case.
This fundamental “right” was acknowledged and justified in Roe v Wade in 1973 but was downgraded to a non-fundamental right in Planned Parenthood v. Casey in 1992. As a legal matter, this distinction is a very big deal and had an enormous practical effect.
Fundamental rights are in a special class under the U.S. Constitution.
They are “found” in four places:
1 – they’re enumerated in first 8 Amendments to the Constitution, which, along with the 9th and 10th Amendments, create the Bill of Rights
2 – they’re retained by the people under the 9th Amendment
3 – they’re recognized as unenumerated rights under the privileges and immunities clause in Article 2 of the Constitution and the 14th Amendment
4 – they’re recognized as unenumerated rights under the Due Process Clause of the 14th Amendment.
We’ll look at each in turn.
The first 8 amendments identify various fundamental rights that cannot be infringed by the federal government absent a compelling purpose. These rights are enumerated. While the nature and scope of proper governmental intrusion into these rights is hotly contested, their existence as constitutionally protected rights is not. Of course, these federal protections were incorporated against the states via the 14th Amendment in 1868, meaning that neither the feds nor the states could infringe these rights.
The 9th Amendment says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” These, of course, are also unenumerated. There isn’t a lot of 9th Amendment jurisprudence, or case law, but it’s an extremely critical one. Unenumerated rights, that haven’t been classified as fundamental, simply don’t enjoy the higher level of judicial scrutiny as fundamental ones do.
The privileges and immunities clauses in both Article 2 and the 14th Amendment ensure that no state can deny the privileges it provides to its citizens to those from another state. Voting and interstate travel are considered privileges and immunities of citizenship. This is why a driver’s license issued in one state is valid in another.
Finally, we find fundamental rights in the due process clause of the 14th Amendment. These, too, are unenumerated rights and have only been recognized by the U.S. Supreme Court via a doctrine called “substantive due process.” This doctrine was first used by the court in 1905 in a case called Lochner v. New York. It was summarily rejected in a case called West Coast Hotel in 1937.
Let’s get some context on the 14th amendment and then swing back.
The 14A was passed by Congress in 1866 and ratified in 1868.
It has 5 sections: the first 4 include the actual text being added to the Constitution, and the last is the implementing clause, giving Congress the power, via legislation, to enforce the amended language.
The 14A was a big deal because, among other things, it incorporated most of the federal restrictions in the Bill of Rights to the states. The Bill of Rights says that the federal government can’t infringe on the enumerated rights in the first through eighth amendments – the 14A says state governments can’t infringe on those rights either.
But, it’s just Sec. 1 of 14A that’s at issue in abortion law.
Here’s the text:
The third clause (called the due process clause) is at the center of the abortion debate, because that is the textual source for rights associated with abortion.
As used in the Constitution, the term liberty in the DPC means freedom from arbitrary and unreasonable restraint upon an individual. Initially, this term was used in its literal sense – no one can be deprived of their liberty (as in physical liberty) without due process of law. Due process means being given notice of why your liberty may be taken away, having a fair hearing, and the like. There are procedures set up so people can’t arrest you and take you to the gallows without a fair trial before a jury of your peers. Bottom line – you can’t be denied liberty without the government going through the “process” or “procedures” so to speak.
In the early 20th century, the U.S. Supreme Court expanded the definition of liberty in the DPC to include something broader than physical liberty. They expanded it to include various “fundamental values not traceable directly to constitutional text, history, or structure” that relate to matters of reproduction, family, sex, and death. The general reasoning is that some liberties, or values, are so important that they cannot be infringed, regardless of how much “process” is given. This line of thinking became known as “substantive due process” as opposed to “procedural due process.”
While the protection of unenumerated rights isn’t anything new, deciding to protect them under the due process clause was curious, given that there were other textual sources that would have been a much better fit. This, many argue, would have ensured that “such important rights” would not have been dependent on a newly expanded definition of a term that was not tied to any textual source in the Constitution nor did didn’t enjoy wide support among the justices then (or now for that matter). This expanded definition of liberty formed the basis for the most controversial judicial doctrine since the 19th century.
Initially, the doctrine was used as a way to strike down economic regulations that hurt big business. It was actually created by SCOTUS in 1905 in a case called Lochner v. New York as a way to keep big business from being subject to economic regulations.
Here are the basic facts.
New York state passed a law saying bakers couldn’t work more than 10 hours/day. In striking the law down, the court said that bakers had a “freedom to contract” under the liberty component of the due process clause and that the state’s regulations deprived them of that right. So, basically, the court said that telling a business they have to limit their workers’ hours to 10/day is a violation of the workers’ rights b/c it unduly burdens workers’ “fundamental freedom” to negotiate their hours. The irony here is that the legislation was intended to protect workers by saying bakeries couldn’t overwork their employees. As if the workers had the ability, opr bargaining power, to exercise that right even if they wanted to?
The Lochner opinion was a textbook case of judicial activism, which essentially means that the court is writing to a predetermined conclusion and finding a reason to justify it. The decision was controversial at the time and is controversial now. While the doctrine of substantive due process gave the court a “reason” for decision making, it really did nothing more than serve the pro-business policy preferences of the justices who agreed with the Lochner decision. Lochner is in many ways so famous given Justice Harlan’s scathing dissent where he said the court shouldn’t get involved in striking down laws. He continues … and I paraphrase … if that’s what the people want, it’s my job to help them get there.
It took a while, but 32 years later, in 1937, Lochner was finally overruled & the doctrine of substantive due process was repudiated in a case called West Coast Hotel. Interestingly, West Coast Hotel upheld minimum wage laws to protect workers, which was the exact opposite of the Lochner ruling.
The era of substantive due process, or “Lochnerizing” as they called it, was over and the working class finally got some protection from big business.
But substantive due process would have a resurgence.
It was resurrected in the famous 1965 case – Griswold v. Connecticut, which held Connecticut’s law outlawing contraception for married people was unconstitutional. It used the doctrine of substantive due process as the rationale for its decision, but this time the court stated they were striking down laws that regulated “noneconomic” liberties, as opposed to the economic liberties at issue in Lochner (with economic referring to one’s ability to make money), such as a right to personal privacy in matters of marriage, sex, family, and death. These noneconomic liberties were found in various parts of the Constitution.
Justice Douglas, writing for the majority in Griswold, famously said that personal privacy rights are found in the penumbras – or shadowy edges – of the Bill of Rights and 14A of the Constitution. And, those penumbral rights were violated by Connecticut’s anti-contraception law. Griswold’s holding (or result) has been affirmed, but its penumbral reasoning has not.
Every SDP case has generated new rights without reliance on any particular constitutional provision or agreed-upon doctrinal understanding. There is no one standard, test, baseline, or benchmark for what SDP means, and there is no consensus regarding which rights should be read into the 14A and which should not. This is the heart of the problem. Since its “second coming” so to speak, courts that have invoked substantive due process have done so inconsistently and with a mixed bag of results.
Let’s dig a little deeper.
When a court anticipates making a determination that an “implied right” is so important that no amount of “process” is acceptable, they look to previous decisions, or other sources of authority, for reaching that determination. Under the doctrine of stare decisis, it is ultimately the court’s prerogative to determine whether to follow precedent, or set a new precedent. The historical trend has shown that, if the established criteria doesn’t support the preferred outcome, the court won’t necessarily follow it and will create a new one.
A common test for determining whether a fundamental value should qualify for protection as a fundamental “noneconomic” liberty under the Due Process Clause was set forth in a case called Washington v. Glucksberg. In Glucksberg, the court held the right to assisted suicide is not among the fundamental values protected under the due process clause. The Glucksberg court looked to a 1976 case called Moore v. East Cleveland to inform its decision.
Here’s how the test goes:
When analyzing the substantive guarantees of the Due Process Clause, the high court will focus on two things:
1 – Protecting those rights and liberties which are, objectively, deeply rooted in this Nation’s history, traditions, and legal practices and implicit in notions of ordered liberty; and
2 – Cautiously describing what exactly constitutes the due process liberty interest. People need to be able to identify what exactly is included and what isn’t.
Regarding, the first element, here’s what the famous Justice Harlan said in a scathing dissent in Poe v. Ullman:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society …
He continues …
The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed, as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
The bottom line is that determining whether a fundamental value is deemed a fundamental liberty interest under the due process clause is a balancing test between individual rights
Applying this test, the Glucksburg Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause given that its practice has been, and continues to be, offensive to our national traditions and practices.
Second, the Court has required a “careful description” of the asserted fundamental liberty interest.
This inconsistency is extremely frustrating for the American people because they never know what to expect now. To be clear, at present, all personal privacy, or privacy-related rights “protected” under the American Constitution rest on the continued acceptance of the ever-changing, ever-shifting doctrine of substantive due process doctrine.
Justice Thomas’ concurrence in Dobbs criticized this doctrine and said cases decided under it were clearly erroneous, not because of the outcome, but the faulty reasoning and the unpredictable nature of it. In fact, he expressed his preference to see all substantive due process cases rejected by the court and the issues returned to the states where the people can decide at the ballot box. These issues, simply put, are not for the courts, but for the very people from whom the court derives its power.
Here’s an excerpt from his concurrence that explains his views on how substantive due process has informed the abortion debate.
Thomas writes, “substantive due process exalts judges at the expense of the People from whom they derive their authority.” Because the Due Process Clause “speaks only to ‘process,’ the Court has long struggled to define what substantive rights it protects.” In practice, the Court’s approach for identifying those “fundamental” rights “unquestionably involves policymaking rather than neutral legal analysis.” The Court divines new rights in line with “its own, extra constitutional value preferences” and nullifies state laws that do not align with the judicially created guarantees.
“Nowhere is this exaltation of judicial policymaking clearer than this Court’s abortion jurisprudence. In Roe v. Wade the Court divined a right to abortion because it “fe[lt]” that “the Fourteenth Amendment’s concept of personal liberty” included a “right of privacy” that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
In Planned Parenthood v. Casey, the Court likewise identified an abortion guarantee in “the liberty protected by the Fourteenth Amendment,” but, rather than a “right of privacy,” it invoked an ethereal “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
As the Court’s preferred manifestation of “liberty” changed, so, too, did the test used to protect it, as Roe’s author, Justice Blackmun, lamented. In Casey, Justice Blackmun wrote that [t]he Roe framework is far more administrable, and far less manipulable, than the ‘undue burden’ standard.” But, he, of course, lost the day.
Now, in this case, the nature of the purported “liberty” supporting the abortion right has shifted yet again. Respondents (that’s Jackson Women’s Health) and the United States (the government was on the pro-choice side) propose no fewer than three different interests that supposedly spring from the Due Process Clause.
They include “bodily integrity,” “personal autonomy in matters of family, medical care, and faith … and women’s equal citizenship.”
That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification. Substantive due process is the core inspiration for many of the Court’s constitutionally unmoored policy judgments.
Thomas concludes his opinion with these comments, which are the primary source of the virulent anger toward him:
He’s saying that …. [b]ecause the Dobbs Court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the Court’s opinion. This means that he agrees with the result, not the reasoning.
But, in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.”
Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.
He goes on to list famous 20th century cases decided under SDP, but those are beyond the scope of this episode.
Needless to say, the doctrine of substantive due process is not only controversial, but it’s malleable and fluid – two things no one wants when establishing baseline standards for anything, especially what is protectable as a fundamental right under the Constitution.
So, what does this have to do with Dobbs?
In applying the Glucksberg test, the court said that the positive right to an abortion is not deeply rooted in this nation’s history or traditions and therefore does not rise to the level of a fundamental right protectable under the liberty clause of the 14A. It therefore is properly regulated at the state level by the people. If the people want positive rights to abortion, they can legislate it into being.
Here’s the TL;DR.
Dobbs overturned Roe, ending a 50 year battle royale between the pro-choice and pro-life movements in the U.S. Supreme Court.
In the majority opinion, Dobbs found that the right to an abortion is not included among the fundamental rights protected under the due process clause of the 14A. The judicial doctrine that recognizes rights under this clause is called substantive due process and is highly controversial.
The courts have established a 2 part test that is sometimes adhered to and sometimes not to determine when a fundamental value should be recognized as a fundamental right under the 14A. The test requires the court to look at the country’s history and traditions (those we follow and those from which we broke), legal practices, and implicit in the notions of ordered liberty, and to define the right with specificity.
The right to choose to terminate an abortion pre-viability was recognized by Roe v. Wade as one that can be inferred from the 14A. In applying the Glucksberg 2 part test, Dobbs disagreed with Roe. Because the right to an abortion has never been deemed to exist anywhere else in the Constition, Dobbs overruled Roe and every case that relied on it. With that move, abortion was returned to the states for the people to decide.
And if the reactions to the decision are any indication of what’s next, the people WILL decide.
Thank you for listening. This is heavy complicated stuff and I appreciate your time, interest, and attention.
Although Dobbs overturned Roe, the abortion wars are far from over. We’ll keep at it in the next episode of I am Roe, Hear Me Roar.
Welcome to Episode 3 of I am Roe, Hear Me Roar.
This episode lays the groundwork for understanding the second most important abortion case in American law, Planned Parenthood v. Casey, decided in 1992.
The episode begins with an acknowledgement that Roe did not settle the abortion debate, but rather created a fractious debate that didn’t really exist before it was passed.
We then shift to discussing the myriad health and safety regulations passed by various states in the post-Roe years and why they were struck down by the high court. This leads into a discussion of standards of judicial review and how courts determine whether a law is constitutional or unconstitutional.
Understanding standard of review is key for understanding Planned Parenthood v. Casey, which changed the standard of review for abortion cases and reduced the court’s authority to police regulatory legislation. It is also important to understand the role Justice Sandra Day O’Connor played in crafting Casey and this new standard of review.
We also explain that Casey also threw out Roe’s trimester framework in favor of a viability test, which, given advances in medical technology, necessarily made it easier to regulate abortion earlier in the pregnancy.
We wrap the show with a TL;DR about the two pillars of abortion law, Roe and Casey, and the role they play in the current legal environment.
The next episode will take a deep dive into Casey and how we regulate abortion in the United States.
Roe v. Wade – Supreme Court:
Akron v. Akron Center for Reproductive Health: https://supreme.justia.com/cases/federal/us/462/416/#tab-opinion-1955113
Calautti v. Franklin – Supreme Court:
Thornburgh v. American College of Obstetricians:
Webster v. Reproductive Health Services:
Planned Parenthood v. Casey:
U.S. Const. Bill of Rights:
U.S. Const. 9th Amendment:
U.S. Const. 14th Amendment:
So, stay with me, and I’ll see you in Episode 4 of I am Roe, Hear Me Roar.
EPISODE 3: THE CHASE THAT CHANGED ROE:
PLANNED PARENTHOOD V. CASEY (1992) – Part 1
This is episode 3 of I am Roe, Hear Me Roar.
The Roe v. Wade decision, which was handed down in January 1973, drew clear battle lines between the anti-abortion and pro-abortion camps.
Although Justice Harry Blackmun, the author of Roe v. Wade, believed that the decision would settle the abortion debate once and for all, we know from looking back almost 50 years later, that not only did Roe not settle the debate, it took it to an entirely new level.
In fact, the first two decades after Roe were fraught with high stakes litigation, sophisticated legal maneuvering, and political jockeying, on both sides. Cases were flying up and down the courts in what seemed like a nonstop merry go round. All the while, frustrations were mounting and the political environment was becoming increasingly toxic.
In 1992, then Supreme Court Justice Byron White had this to say:
“Roe fanned into life an issue that has informed our national politics in general, and has obscured with its smoke the selection of Justices to this Court … ever since. [W]e should get out of [the abortion umpiring business] where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
In the 1970s and 80s, advances in medical technology increased the chances of a fetus surviving outside the womb earlier and earlier in the pregnancy, which meant that the state’s ability to regulate abortion earlier and earlier in the pregnancy technically become easier as well. This confluence of events created all kinds of political and cultural conflict as you can imagine.
In Roe’s trimester framework, abortions could only be prohibited in the third trimester since that’s when the fetus would be viable outside the womb. In 1973, fetal viability was generally understood to be around 28 weeks, but that was no longer the case in the late 1980s. Since Roe ultimately tied state regulation to viability, as opposed to a particular week of gestation, things started to get messy.
You may recall from the last episode that the decision in Roe effectively overturned 46 state laws either regulating or prohibiting abortion, overnight. It was also the first time abortion was elevated to the national level where, according to one of the dissenting opinions in Casey, it is infinitely more difficult to resolve.
Among the 46 states where laws were overturned, 13 had already begun to liberalize their regulations through the democratic process – that is at the ballot box – and the demand for change was catching momentum throughout the country. But, Roe stopped that progress in its tracks by moving the debate to the courts, instead of state legislatures where laws are actually made. Suffice it to say, the blowback was fierce and fast.
Across the country, there were numerous efforts to pass what appeared to be permissible health and safety regulations regarding first and second trimester abortions, or pre-viability abortions, given the holding in Roe.
Abortion clinics and providers challenged most of these regulatory efforts and many of the cases made their way to the U.S. Supreme Court. Incidentally, nearly all of the regulations were struck down because they simply could not survive the strict scrutiny standard of review.
Let’s break this down.
What exactly is a standard of review?
A standard of review is the criteria a court will use to determine whether a particular law is constitutional or unconstitutional. Think of it as the baseline, or threshold, for whether a law is enforceable or unenforceable.
In cases involving Constitutional questions, there are three standards or review:
Strict scrutiny is, of course, the highest and most stringent form of judicial review.
Under strict scrutiny, a law or policy will be deemed constitutionally valid only if it does three things:
This means that the law has to be written so precisely that it is not overbroad in the type of conduct it prohibits. Additionally, there cannot be any other way to achieve this compelling interest or purpose without infringing upon or otherwise affecting one’s fundamental rights.
In simple terms, think of it like this – the shortest distance between 2 points is a straight line, right? So, the law has to follow a straight line, or whatever is the closest to it, to achieve its objective. If you’ve ever taken a road trip, you know that following a straight line to anywhere is a very TALL order.
Another complicating factor is that there is no bright line (or clear delineation) for when an interest is “compelling” or if it’s just important. We know that “compelling” generally means that the interest is absolutely necessary and is not just a matter of choice or preference. Protecting fundamental rights is certainly a compelling state interest, as is a state’s interest in protecting public health and safety. This, naturally, would include, for example, regulating violent crime. Compelling interests also include things like passing laws to meet the requirements of national security and military necessity.
Let’s look at a non-abortion example of strict scrutiny in action:
State A passes a law banning individuals from burning the state’s flag.
Flag burning has been deemed a form of protected speech under the First Amendment. As such, the new law will only be constitutional if it can pass strict scrutiny review, meaning it serves a compelling state interest (in this case, a state’s police power, which includes the power to govern for public health and safety), be narrowly tailored to achieve that interest, and be the least restrictive means of achieving that purpose.
In this situation, there is likely no compelling purpose related to the state’s police power that justifies limiting an individual’s fundamental 1st Amendment rights. As such, the state statute would likely be held unconstitutional.
Here’s another example from recent history.
A state passes a law or implements a policy prohibiting people from leaving their homes during a pandemic. Stopping the spread of a virus is indeed a compelling state interest.
The question then is whether imposing travel restrictions is acceptable or overbroad in the behavior it prohibits. In this instance, so long as people can leave their homes for basic necessities – food, medical help, work if they’re considered essential employees – and visit other private facilities, like friends at home, the policy is probably okay b/c it was narrowly tailored to achieving the states’ interests and used the least restrictive means possible.
Absent a pandemic, this type of restriction would die quickly at the hand of strict scrutiny.
Strict scrutiny is always the judicial standard of review used for determining whether laws burdening or abridging a fundamental Constitutional right are enforceable. In plain English, this means that any law that curtails one’s ability to exercise their fundamental rights must be 100% absolutely necessary. The strict scrutiny standard is actually so rigorous that many in legal circles have actually called it “strict in theory, fatal in fact.” See Gerald Gunter 86 Harv. l. Rev. 1, 8 (1972). Current Justice David Souter has said that strict scrutiny rarely has any survivors. Our flag example above certainly illustrates this point.
So, how do we know if a law burdens a fundamental right?
Fundamental rights are those that the U.S. Supreme Court has stated have a high degree of protection from government encroachment. Fundamental rights include those enumerated in the Constitution (primarily in the Bill of Rights), those retained by the people under the 9th Amendment (these are often codified in state or federal laws), and some unenumerated rights, or those not specifically listed in the Constitution, but still recognized by the U.S. Supreme Court as being fundamental under the liberty component of the Due Process Clause of the 14th Amendment. These unenumerated rights include matters of personal privacy, marriage, contraception, child rearing, interstate travel, and voting, among others. Note that in cases where the Supreme Court recognizes an unenumerated fundamental right, the court may later revoke its fundamental status. This is all part of a legal doctrine called substantive due process, which we will tackle in a future episode.
Here’s why all of this matters.
Roe expanded the right of personal privacy to include a woman’s right to choose to terminate her pregnancy, pre-viability. This meant that the choice was deemed a fundamental right. As such, any laws restricting her ability to access that right must pass the strict scrutiny test. As noted above, most of these laws did not survive strict scrutiny review, save those that created some restrictions for minors, public funding for abortion, and some forms of parental notification and consent.
In fact, the test is so rigorous that by the late 1980s, SCOTUS had struck down more than 20 health and safety regulations, many of which enjoy broad support from a lot of Americans today, regardless of one’s point of view.
A representative sample of some of the regulations that made it to the chopping block follow:
This “strike down streak” was long and intense, but by the end of the 1980s, it was about to end.
Indeed, the era of strict scrutiny came to a screeching halt with the Court’s dramatic and controversial decision in Planned Parenthood v. Casey, which was decided in 1992.
To understand Casey, one must recognize the perspective Justice Sandra Day O’Connor brought to the court regarding abortion regulation after her appointment in the fall of 1981.
Here’s some background.
Justice O’Connor questioned the court’s reliance on the strict scrutiny standard of review for abortion cases because, in practice, she believed it ignored a key element of Roe’s holding, namely that states could regulate abortion care.
You see, Justice O’Connor always focused on all three parts of the Roe holding, not just the first one, which tends to get most of the attention:
Here are the three parts of the Roe Holding:
Roe recognized a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. The State’s interests before viability are not strong enough to support prohibiting abortion imposing substantial obstacles to the woman’s effective right to elect to have an abortion. This right, albeit limited, was deemed fundamental by the Roe court.
Roe also confirmed the State’s power to restrict, or even prohibit, abortions after viability, so long as the restrictions contain exceptions for pregnancies endangering a woman’s life or health; and
Roe confirmed that the State has legitimate interests in protecting the health of the woman, and the life of the fetus that may become a child, from the outset of the pregnancy and throughout its duration.
Given the nature and number of post-Roe SCOTUS decisions that had struck down virtually all pre-viability state regulations, Justice O’Connor observed that they had cast doubt on the meaning and reach of Roe’s holding, particularly regarding a state’s ability to further its interest in protecting maternal health. In fact, some scholars called this post-Roe period a “public health vacuum endangering the lives and health of women.” (Forsythe & Kehr, 57 Vill. L. Rev. at 65.)
A clear imbalance had emerged.
To “course correct,” so to speak, Justice O’Connor suggested the court employ a different standard of review for use in abortion cases.
Enter the now famous – or infamous, depending on who you talk to – undue burden standard.
The undue burden standard was viewed as a sort of middle ground that recognized not just a woman’s fundamental right to choose to terminate a pre-viability abortion, but it also recognized Roe’s limitations on that right. This effectively changed the privacy right at issue from a fundamental right to a “protected liberty interest.” More on that later.
While this new standard still subjected legislation that unduly burdens a woman’s fundamental right to choose a pre-viability abortion to strict scrutiny review, it also said that legislation that does NOT unduly burden a woman’s fundamental right to choose a pre-viability abortion will be permissible so long as it rationally relates to a legitimate state interest. Rational basis is the lowest form of judicial scrutiny in constitutional cases. So, the undue burden was a bit of a hybrid standard – until then a judicial outlier.
This also begs the question – what is an undue burden?
Justice O’Connor first articulated the undue burden standard in her dissent in a 1983 case called Akron v. Akron (later abbreviated to Akron 1), but applied it affirmatively in the majority opinion, which she authored, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989). Applying her then version of the undue burden standard, rather than strict scrutiny, the Court upheld a Missouri law that prohibited the use of state funds or facilities for abortions.
After Webster, Roe was still technically the law of the land, but its reach had been checked.
Interestingly, it has been observed that if Webster checked the reach of Roe’s power, Planned Parenthood v. Casey diminished its potency.
Let’s take a look.
Planned Parenthood v. Casey signaled the climax of nearly 20 years of exhausting and very high stakes litigation over Pennsylvania’s abortion control laws. Interestingly, Casey wasn’t the first, but the third Pennsylvania abortion case to make it to the high court in the post-Roe years.
But unlike the first two cases, Casey was different. This time, Justice O’Connor was in charge.
Calautti v. Franklin (1979) and Thornburgh v. American College of Obstetricians (1986) were the first two Pennsylvania cases to make it to the high court. Both challenged various versions of Pennsylvania’s Abortion Control Act (the 1974 and 1982 versions) on the grounds there were unconstitutional.
Here’s a quick rundown of the key regulations that were implicated.
When subjected to strict scrutiny review, none passed the test.
Undeterred, Pennsylvania’s General Assembly (that’s the state legislature) went back to the drawing board and in 1988 and 1989 passed amendments to what remained of the Abortion Control Act. The amended Act included restrictions very similar to those identified above. We’ll discuss the reasoning for this in the next episode.
Although these regulations had already been reviewed by the Supreme Court, with a new standard of review gaining traction, Pennsylvania bet on the outcome being different. They lost at the trial court in 1990, but their luck took a turn in the appeals court in 1991. And, by the time Casey made its way to the Supreme Court in 1992, Justice O’Connor’s undue burden standard had become the law of the land. Given this massive legal shift, Pennsylvania and much of the American public were prepared for Casey to be the case that overturned Roe.
But it wasn’t.
While Casey affirmed Roe generally it was (and remains) an extremely controversial decision, as much for its reasoning as its outcome.
Like Roe before it, it too purported to be the case that FINALLY settled the abortion debate once and for all. Well, monkey see, monkey do.
Not only did it not “solve” what we now understand to be an “unsolvable” issue, it complicated it even more. Some of the unwelcome results were an uptick in social discontent, increased confusion in the lower courts, and highly politicized Supreme Court confirmation hearings.
We’ll dissect all the gory details of Casey in the next episode, but we can’t wrap before talking about how Casey ends.
The Planned Parenthood v. Casey opinion was issued in mid 1992. Note that Casey was a plurality opinion, as opposed to a majority opinion, which meant that while a majority of the justices did agree on the ultimate judgment of the court – that is the bottom line of the case so to speak – they did NOT agree on how to get to that judgment – or what we call the reasoning of the case.
Now, plurality opinions do not hold any less precedential weight than majority opinions, but, because in American law, the reasoning of a case is as important as the actual decision, plurality opinions tend to provide less guidance to lower courts on how to decide future cases. This “double duty” makes precedential analysis, or what we call stare decisis, far more complex than most believe it to be.
While Casey’s judgment upheld nearly all of Pennsylvania’s Abortion Control Act, except for the spousal notification requirement (more on that in the next episode), it’s holding is the star of the show.
First, Casey reaffirmed the core holding of Roe – all 3 parts;
Second, it ditched Roe’s strict scrutiny standard in favor of the undue burden test which effectively shifted the abortion right from a fundamental one to a protected liberty interest; and
Third, it threw out Roe’s trimester framework and replaced it with a viability test.
This means that pre-viability abortions can be regulated to protect maternal health and fetail life, but they cannot be prohibited.
Whereas post-viability abortions can be regulated and prohibited.
When a fetus is deemed viable is an entirely different question, whose answer depends on myriad medical, economic, social, and behavioral factors. Suffice it to say, there is NO clear answer.
In view of the above, one can surmise that Casey effectively invalidated, or basically gutted, many of the court’s decisions over the previous 20 years that struck down scores of regulatory measures because they failed to pass strict scrutiny.
So, no Casey did not settle anything, but it reset everything.
I know this is a lot, so here’s the TL;DR:
Roe v. Wade and Planned Parenthood v. Casey are the twin pillars of abortion law in the United States.
In 1973, Roe said the right to have an abortion before the fetus was viable outside the womb was protected as a fundamental privacy right under the 14th Amendment. It also said that the state has an interest in protecting maternal health and fetal life, so it could regulate abortion in certain instances. To balance these competing interests, the Roe Court established a trimester framework for addressing when and how a state can regulate abortion.
Here’s the framework:
A woman’s privacy right was superior to the state’s interests.
A state’s interests began to emerge as the woman’s privacy interest began to decline
A woman’s privacy right was fully subordinate to the state’s interests.
Because Roe established choice, limited as it was, as a fundamental right, any laws burdening that right in any way – so basically any regulations passed by state legislatures or Congress – must be subjected to the heightened judicial standard of strict scrutiny review.
19 years later, in 1992, the court revisited the holding of Roe in Planned Parenthood v. Casey.
While the court upheld the core holding of Roe, it ditched the trimester framework in favor of a viability test, and replaced strict scrutiny with a new undue burden standard. With these changes, Casey overturned many of SCOTUS’s abortion decisions from the previous two decades and paved the way for more robust regulatory authority regarding abortion.
It goes without saying that abortion proponents disfavored Casey, while abortion opponents saw it as a step in the right direction.
Thirty years later, things are still a gigantic mess.
But I’m going to try to keep explaining them so they seem, well, a little bit less of a mess.
We’re just getting started on this issue, so don’t move an inch – we’ll be right back with a deeper dive into Casey and how its reasoning, in particular, has changed abortion jurisprudence, or abortion law, ever since.
As an aside …
As of the date of this recording – June 22, 2022 – Casey and Roe are still governing law. We’re waiting on the court to issue its opinion in Dobbs v. Jackson, which may, of course, change the entire game and grant Justice White’s wish for the court to get out of the abortion umpiring business exactly 20 years after he died.
For now, that’s a wrap. But don’t go anywhere …
I’ll see you soon in Episode 4 of I am Roe, Hear Me Roar.
What does Roe v. Wade actually say?
Welcome to Episode 2 of I am Roe, Hear Me Roar.
This episode lays the groundwork for understanding Roe v. Wade, the famous 1973 Supreme Court decision that effectively legalized abortion nationwide for the first time.
First, we set the stage – the legal stage that is.
We begin with an explanation of Jane Roe’s initial lawsuit filed in the federal district court in Dallas, Texas against Henry Wade, the district attorney in Dallas County, where she argued that the 1854 Texas law criminalizing abortion, except in cases to save the life of the mother, was unconstitutional.
Jane won half the case, so she appealed to the U.S. Supreme Court. Wade appealed to.
We then move onto the appeal and explain the arguments put forth by both sides and unpack the decision of the court which didn’t give either side everything they wanted, but some of what they wanted.
The decision itself, and its reasoning, has been a source of much controversy in legal and political circles alike given the unique trimester framework it laid out for balancing the interests of the pregnant woman, fetus, and the state.
Finally, we recap with a TL;DR and set up the next episode where we’ll dissect the second most famous abortion case in America: Planned Parenthood v. Casey (1992) and explore how it changed Roe and, despite its good intentions, muddied the abortion waters all the more.
Roe v. Wade – First Lawsuit in the U.S. District Court for the Northern District of Texas: https://law.justia.com/cases/federal/district-courts/FSupp/314/1217/1472349/
Roe v. Wade – Supreme Court: https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137
Griswold V. Connecticut: https://supreme.justia.com/cases/federal/us/381/479/#tab-opinion-1945663
Planned Parenthood v. Texas: https://supreme.justia.com/cases/federal/us/505/833/#tab-opinion-1959105
U.S. Constitution: https://www.archives.gov/founding-docs/constitution-transcript
U.S. Const. Bill of Rights: https://www.archives.gov/founding-docs/bill-of-rights
U.S. Const. 9th Amendment: https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-ix
U.S. Const. 14th Amendment: https://www.archives.gov/founding-docs/amendments-11-27#xiv
So, stay with me, and I’ll see you in Episode 3 of I am Roe, Hear Me Roar.
EP 2: WHAT DOES ROE V. WADE ACTUALLY SAY?
This episode two of I am Roe, hear me roar.
Like any good story, we always start at the beginning … but I’m going to do it a bit differently for this story.
Although this podcast is about the legal history of abortion in America, which history begins in earnest in the second half of the 19th century, we’re going to start in 1973 by unpacking Roe v. Wade, the famous Supreme Court decision that effectively legalized abortion nationwide for the first time.
Welcome back to the podcast!
I’m your host, attorney Kelley Keller, and I take the awe out of the law. I’m passionate about demystifying the law for ordinary people so they can better understand and access the law, know the rights it protects, and learn to advocate effectively, for things that matter. Thank you for joining me on this fascinating journey as we unpack and explore the legal history of abortion in America.
Starting in the middle-ish of this history seems appropriate since, when it comes to abortion in America, all roads lead to Roe.
Therefore, it’s critical we get on the same page and have a clear understanding of what Roe actually says, and perhaps as importantly, what it doesn’t say about a woman’s right to terminate a pregnancy.
Let’s set the stage – the legal stage that is.
In 1970, Jane Roe (a pseudonym for a woman named Norma McCorvey – we’ll chat about her in a different episode) filed a lawsuit in the federal district court in Dallas, Texas arguing that an 1854 Texas law criminalizing abortion, except in cases to save the life of the mother, was unconstitutional.
The case was filed against Henry Wade who was at that time the district attorney for Dallas County, Texas. Basically, Wade was the head lawyer for the county so it was his name on the lawsuit. He wasn’t being sued personally, but in his capacity as the legal representative for Dallas County.
Here’s a rundown of the facts.
Jane Roe was pregnant with her third child and wanted to have an abortion, but she couldn’t because of a Texas law saying that any doctor who performs an abortion, or furnishes the means for performing an abortion, for any reason except to save the life of the mother, is committing the crime of abortion and will prosecuted by the state for that crime. If convicted, the doctor will be put in jail for 2 – 5 years. Suffice it to say, few doctors were willing to risk their licenses and livelihoods by performing abortions in Texas. So, unless Roe went to a different state, she was out-of-luck.
In the lawsuit, Jane Roe was asking the court to do 2 things:
1 – to declare the Texas criminal law unconstitutional; and
2 – to issue an injunction requiring Texas to stop enforcing the criminal law.
Here’s how it went down.
Jane Roe argued that the Texas law was unconstitutional because it invaded a woman’s right to choose to terminate her pregnancy at any time before a live birth, which she believed arose from 1, 2, or 3 different sources in the Constitution.
Here are the three sources she outlined:
One – Roe argued that the right to choose to terminate a pregnancy emanates from the concept of personal liberty embodied in the 14th Amendment’s due process clause.
Two – Roe argued that the right comes from the unenumerated rights with respect to personal marital, familial, and sexual privacy which the court previously found in the so-called penumbras, or shadowy edges, of the Bill of Rights.
Three – Roe argued that the right may also emanate from the 9th Amendment, where unenumerated rights may be identified by the people and therefore protected by the Constitution.
Worry not, we’ll explore these “sources” in greater detail in a moment.
Before I do that, Roe also claimed, as a fail safe argument, that the statute was void on the grounds it was unconstitutionally vague, irrespective of the rights it violated. Vagueness is a constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable by the criminal law.
In its defense, Texas, via Wade, asked the court to keep the Texas law intact because an abortion denies the fetus of its constitutional right to life, which Wade argued begins at conception. As such, the pregnant mother cannot have an abortion without the physician committing murder. There is, of course, still massive debate regarding when life begins for purposes of recognizing legal rights for the unborn. That’s for a different episode.
Roe’s first request was granted.
The federal court deemed the Texas law unconstitutional under Roe’s option 3. The court agreed generally that a woman’s right to terminate a pregnancy is protectable under the 9th amendment. The court also deemed the law void for vagueness, so it was a double punch.
Ok, as for Roe’s second request, the court declined to order an injunction requiring Texas to stop enforcing the criminal law. An injunction is an order from a court requiring someone to either start doing something or stop doing something.
In this case, an injunction would have ordered the state of Texas to stop prosecuting doctors under the law. The federal court didn’t believe that it was the proper forum for issuing an injunction against the state and deferred instead to Texas to address how to handle enforcement in light of the court’s decision. As a practical matter, this meant that Henry Wade could keep prosecuting doctors for performing abortions.
So, Jane Roe got half of what she asked for, but it wasn’t really worth the paper it was written on.
Without an enforcement mechanism, the decision was just a pyrrhic victory for Roe – a symbolic “win” so to speak, without any teeth.
Therefore, Roe appealed – directly to the U.S. Supreme Court. Wade appealed as well.
Enter SCOTUS – SCOTUS is an acronym for the Supreme Court of the United States.
In her appeal, Roe was asking the Supreme Court to (1) affirm the holding from the lower court that the Texas law was not constitutional, and (2) to overturn the lower court’s decision not to issue an injunction.
Wade was asking for just the opposite.
The Supreme Court agreed to hear the appeal and, after a series of delays, they scheduled the case for oral argument.
The lawyers for Roe and Wade argued the case before the court on December 13, 1971. But, two of the justices had resigned a few months earlier due to poor health, so the case was heard by just 7 justices, not the typical 9. Given the importance of the issues, the court ultimately held the case over to the next term so a full bench of 9 justices could weigh in on the issue. Roe was re-argued before the full court on October 11, 1972.
The judgment of the court and accompanying opinion was announced on Monday, January 22, 1973, ironically the same day former President Lyndon Johnson passed away. Newswise – it was a bit of a nothing burger, at least initially.
Obviously, we know the Supreme Court sided with Roe, but its reasoning for agreeing with Roe was different than that of the lower court, and that’s part of why the decision has been extremely controversial.
The Supreme Court held that the Texas criminal law was unconstitutional because it denied a woman of her constitutional “right to privacy” which, the court claimed, was guaranteed by the due process clause of the 14th amendment.
The due process clause of the 14th amendment says that no State shall deprive any person of life, liberty, or property, without due process of law.
Now, life and property are relatively straightforward concepts.
Liberty, however, is less so. What “liberty” means beyond its ordinary meaning of physical freedom has been (and still is) the source of great debate. So, inferring a right to privacy from the term liberty was a pretty big leap at the time, especially when the privacy right included the right to terminate a pregnancy.
Legal recognition of the “right to privacy” was a relatively new idea in 1973.
In Griswold v. Connecticut, a 1965 decision about contraception, the Supreme Court held that a right to marital privacy, while not expressly stated or enumerated in the Constitution, is implied by the Bill of Rights if one looks to the penumbras, or shadowy edges, of the various amendments. As such, the right to marital privacy should be recognized as a fundamental Constitutional right alongside the other enumerated rights, such as freedom of speech.
This line of thinking was pretty controversial then, but it was new, and seemingly helpful to Roe’s argument, so she invoked it nonetheless.
As indicated above, the Roe opinion didn’t specifically adopt the penumbral reasoning set out in the Griswold case, but it did conclude that the “right to privacy” is embedded in the definition of liberty in the 14th amendment, and that the right to privacy includes a limited right to have an abortion.
So, when read in the context of the due process clause of the 14th amendment and swapping out the term liberty, Roe v. Wade says that no state can deprive a woman of her right to terminate a pregnancy (with several caveats) without due process of law.
Whether the court had (or has) the power to expand the definition of liberty to include a right of privacy, or right to an abortion, or any unenumerated rights for that matter, or whether that power rests solely with the political branches of government, is a source of huge disagreement even today.
Ok – back to Roe …
So, the court said that women have a right to privacy, which includes the right to have an abortion, but it also said that the privacy right is not absolute. It must be balanced against the state’s interest in safeguarding maternal health and fetal life.
In its opinion, the court set forth a trimester framework for balancing these competing interests.
Here’s how it works.
In the first trimester, a woman’s right to privacy is superior to any state interest. The abortion decision must be left to the medical judgment of the pregnant woman’s attending physician.
In the second trimester, a woman’s right to privacy may be deferred to a state interest. The State, in promoting its interests in the health of the mother, may regulate the abortion procedure in ways that are reasonably related to maternal health. It doesn’t have to, but it may.
In the third trimester, or after viability, the woman’s right to privacy is fully subordinated to the State’s interest in the potentiality of human life. So, the state may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
That’s a mouthful.
The court also said the State may define the term ‘physician’ to mean only a physician currently licensed by the State, and prohibit anyone else, including a physician licensed in another state, from performing an abortion in that state.
So basically, under Roe, the state can place increasing restrictions on abortion as pregnancy progresses, provided those restrictions are specific to the state interests of protecting maternal health and fetal life.
After 3 years, 3 oral arguments, and hundreds of pages of legal briefs, the Supreme Court held that a Texas criminal law proscribing abortion except to save the life of the mother was unconstitutional because it violated a Constitutionally protected right of personal privacy, which includes the right to choose to terminate a pregnancy during the first trimester without any government interference. After the second trimester, regulation is permitted provided it is related to maternal health. And in the third trimester, states can prohibit abortion except when required to save the life of the mother.
By striking the entire Texas statute down and not just the parts that violated the new rules established by Roe, the court effectively overturned 46 state laws with varying degrees of abortion restrictions overnight. Justice Blackmun, who wrote the majority opinion, naively thought the state legislatures would fall in line and adopt new laws in compliance with Roe. Not only was he wrong, he was dead wrong.
In the late 60s and 70s, the social climate in the U.S. was beginning to change and 13 states had already liberalized their abortion restriction laws, and others were in process. But Roe stopped that progress in its tracks.
According to the late Justice Ruth Bader Ginsburg, the court’s opinion in Roe erred because it was too broad and disrupted too much social infrastructure too fast. Without the buy-in of the people, judicially mandated social change usually fails and the blowback begins.
Roe then did not settle the abortion issue, it was simply the opening shot in the new abortion wars … and they were just starting to roar.
OK – Let’s recap …
In 1973, the Supreme Court held in Roe v. Wade that a Texas law criminalizing abortion, except in cases to save the life of the mother, was unconstitutional because it violated the due process clause of the 14th amendment.
The due process clause says a state can’t deny someone of their life, liberty or property without due process of law. The Supreme Court reasoned that the Texas law denied women of their “liberty” without due process of law and, in doing so, the court broadened the definition of liberty to include the right to have an abortion.
Texas argued that the law was enforceable because the fetus also had a right not to have its right to life be denied without due process of law. The court declined to recognize fetal rights prior to viability, so the Texas argument failed.
Now, although the Roe court acknowledged a right to privacy, it also said the privacy right is not absolute. It has to be balanced with the state’s interest in protecting maternal health and fetal life. The court created a trimester framework for how the interests are to be managed.
Here’s the framework.
In the first trimester, the state can’t regulate abortion. The woman’s right to privacy is superior to any state interest.
In the second trimester, a woman’s right to privacy begins to diminish in favor of the state’s interest in safeguarding maternal health and fetal life.
In the third trimester, a woman’s privacy right is fully subordinated to the state’s interest in protecting maternal health (abortions are less safe as the pregnancy continues) and fetal life (once a fetus is viable, the state has an interest in protecting its life as well). As a result, states can ban abortion for any reason, except to save the life of the mother, during the third trimester of pregnancy.
This trimester framework has since been replaced by a pre and post-viability test, but the privacy right, albeit changed a bit, remains, at least for now.
With that, my friends, you have the legal story of Roe.
Thank you, as always, for tuning in.
Next, we’ll tackle Planned Parenthood v. Casey, the 1992 decision that made significant changes to Roe and remains, as the date of this recording, June 2, 2022, the “law of the land” on abortion.
So, stay with me, and I’ll see you in episode three of I am Roe, Hear Me Roar.
Welcome to Episode 1 of I am Roe, Hear Me Roar. This introductory episode is a table of contents of sorts for the podcast so you know what to expect.
Here’s the scoop.
What is the show about?
Specifically, I am Roe, Hear Me Roar is a legal podcast. It will paint a clear picture of the legal landscape surrounding abortion in the United States. It is neither a political nor advocacy show arguing for or against a particular position on abortion. Instead, it’s a revelatory show – safe for everyone, irrespective of your personal opinions or political position regarding abortion.
What is the purpose of the show?
This podcast exists is equip non-legal experts with the knowledge and information needed to have a better understanding of the legal and social tension surrounding abortion and why it’s seemingly impossible to find a middle ground.
What will the show cover?
The podcast begins with an examination of the law as it stands now. Next, we’ll crack open the history books to see how and why we’re experiencing this highly contentious public debate. And, last, but not least, we’ll peel back the onion a bit and identify practical and useful next steps, depending on the outcome of the case currently pending before the court, Dobbs v. Jackson.
Thank you for joining me on this fascinating exploration of the legal history of abortion in America.
Roe v. Wade: https://www.oyez.org/cases/1971/70-18
Planned Parenthood v. Casey: https://www.oyez.org/cases/1991/91-744
Ep. 1: An Introduction To I Am Roe, Hear Me Roar
This is episode one of I am Roe, hear me roar.
I’m your host, attorney Kelley Keller, and I take the awe out of the law. I’m passionate about teaching regular everyday people how to understand and access the law, know the rights it protects, and learn to advocate effectively, for things that matter.
Thank you for hanging out with me on this inaugural episode of my brand new podcast, I really appreciate the gift of your time. And I’ll work hard to ensure you take something important and enriching from each and every minute you spend with me.
So once again, thank you.
OK – Let’s get down to business.
Here’s what you can expect from this show: First, I am Roe, Hear me Roar is a legal podcast.
It will paint a clear picture of the legal landscape surrounding abortion in the United States. We’ll examine the law as it stands now – breaking it down into bite sized digestible pieces of information. Then we’ll crack open the history books to see how we got here, and last, but not least, we’ll peel back the onion a bit so we can thoughtfully consider the path forward.
Second, I am Roe, Hear me Roar is neither a political nor an advocacy show arguing for or against a particular position on abortion. Instead, it’s a revelatory show – safe for everyone, irrespective of your personal opinions or political position regarding abortion.
And, third, my goal with this podcast is to equip non-legal experts with the knowledge and information needed to have a better understanding of the legal and social tension surrounding abortion and why it’s seemingly impossible to find a middle ground. We didn’t get to this explosive place overnight, or by accident.
I must admit, as I’ve dug into this issue, from many perspectives now, I find it increasingly fascinating and hope you do too.
OK – with our expectations managed, let’s take a look at the topics we’ll cover:
We’ll begin by unpacking the 1973 landmark Supreme Court decision that legalized abortion in the United States – Roe v. Wade. We’ll break down the legal framework the court created – which was intended
to strike a balance between the state’s interests in protecting both women’s health and fetal life. This way we’re all on the same page vis-a- vis what Roe actually says, and doesn’t say.
Then, we’ll step back in time and dive into the legal history of abortion in America. Interestingly, the law was silent on abortion until 1867 when Congress and state legislatures started passing laws restricting access to information about contraception, abortion, and all manner of other things. By 1910, abortion was illegal nationwide. And, it wouldn’t be legal again until 1973. This history is definitely a tale-to-tell.
Our historical review will take us right up to the late 1960s when the initial lawsuit in the Roe v. Wade dispute was filed as a challenge to a Texas law making it a crime for physicians to perform abortions. When we get there (the late 60s that is), we’ll hop behind the scenes, meet the players, including Jane Roe, Henry Wade, the teams of lawyers, the Texas judges, and the 9 Supreme Court Justices on the bench at that time, and follow the case as it winds its way through the Texas courts and ultimately to the U.S. Supreme Court.
I’ll also give some air time to discussing why the case was actually argued before the Supreme Court not once, but twice …. and why issuing the decision on January 22, 1973 played a key factor in how the case was perceived at that time. I’ll give you a hint, the cease fire in Vietnam had gone into effect just a week before the decision, and the Paris Peace Accords – which effectively ended the Vietnam War – were signed a week after the decision. Perhaps even more poignant though is that former president Lyndon B. Johnson died the same day the decision was published. So, there was a lot going on at the time. As Billy Joel would later sing – we didn’t start the fire, it was always burning since the world’s been turning …
After our historical deep dive, we’ll set the stage for what has truly become a legal battle royale for nearly 50 years between the pro- abortion crusaders on the one hand, the anti-abortion crusaders on the other hand, and, a whole lotta lotta inbetween.
Given the broad sweeping nature of the Roe decision, 46 state laws criminalizing (or otherwise restricting) abortion were overturned, overnight. I believe this dramatic shift in the legal, medical, and social ecosystems in place at the time – without much warning or preparation – created a perfect storm for what has become an increasingly volatile and supercharged situation that we, as a country, struggle to manage every single day.
But Roe isn’t an outlier.
In 1992, 19 years after Roe was decided, the Supreme Court heard arguments on another pretty big abortion case. In Planned Parenthood v. Casey, the Court was asked to consider the constitutionality of Pennsylvania’s then new abortion control law, in light of Roe v. Wade. In Casey, the court actually upheld the core holding of Roe (that is essentially the heart of the case), but it threw out the legal framework created by Roe and replaced it with a slightly different one. We’ll explore Casey in detail, the court’s reasoning for it, and its practical impact on present day abortion restriction legislation, including the smattering of relatively new state heartbeat laws that make abortions illegal as soon as embryonic or fetal heart activity can be detected.
Finally, we’ll take a peek inside the abortion case currently pending before the court which involves the constitutionality of a Mississippi law that bans abortions after fifteen weeks of pregnancy, not the roughly 24 weeks, which is the timeline – give or take – allowed under Roe and its ascendants. If the Mississippi law is upheld, it would be a dramatic shift from the Roe and Casey decisions that collectively define when abortion is legal v. illegal. The case – called Dobbs v. Jackson Women’s Health – was argued before the Supreme Court just a few months ago, on December 1, 2021. We expect a decision from the high court in June or July of 2022.
Rest assured, I will be watching this case very carefully and will break it down, piece by piece, once the opinion is published. I believe this ruling will be the harbinger of the direction the abortion debate will take for many years to come.
We’re tackling a big topic on this podcast – and the nature and scope of its role in American life command thoughtful and respectful treatment. I will aim to do it justice.
Thank you, again, for tuning it.
I’m your host, Kelley Keller, and you’re listening to I am Roe, Hear Me Roar.
I’ll see you in the next episodey
I am Roe, Hear Me Roar
Meet Jane, Jane Roe
In 1969 Jane Roe was pregnant and wanted to have an abortion. But abortion was illegal in Texas and she could not afford to travel out of state for the procedure. She ended up having the baby, a girl, and put her up for adoption. But Jane didn’t want any other woman to suffer as she had.
Meet Henry, Henry Wade
In 1969, Henry Wade was the district attorney in Dallas County, Texas. An unforgettably aggressive lawyer, Wade garnered fame when he prosecuted Jack Ruby, the man who assassinated Lee Harvery Oswald in the Dallas police headquarters after JFK was shot.
Meet Jane Meeting Henry
In 1970, Jane Roe filed a lawsuit against Henry Wade (in his capacity as a representative of Texas), hence Roe v. Wade.
The lawsuit claimed the Texas law criminalizing all abortion, except when necessary to save the life of the mother, was unconstitutional.
Jane argued that the law invades a pregnant woman’s constitutional right to personal privacy, which she believed includes the right to terminate a pregnancy at any time before a live birth.
Texas argued that the embryo, then fetus, is a person, whose right to life and equal protection under the law is guaranteed by the Constitution. Therefore, a pregnant woman cannot deprive the fetus of its rights by having an abortion.
The case ultimately made its way to the U.S. Supreme Court, and, interestingly, the high court didn’t fully agree with Roe, and didn’t fully agree with Wade.
Instead, the court attempted to strike a balance that threw carrots at each side, and in doing so, left a slew of unanswered questions and set the stage for a nearly 50 year season of roaring and rage, on both sides.
This [podcast / talk] recounts the journey of Jane Roe, Henry Wade, their cataclysmic meeting in the United States Supreme Court, and the ensuing aftermath.
Our content will focus on asking and answering the following questions:
So, please join me on this fascinating journey as we unpack the ongoing fight for abortion rights in America that no one actually seems to be winning.
I promise there will be plenty of political intrigue, legal maneuvering, virtue signaling, and straight-up knock-down drag-out fights for the hearts and minds of the American people and their collective support either for or against abortion.
I’m Attorney Kelley Keller, and I take the awe out of the law.
I’m passionate about teaching regular everyday people how to understand and access the law, know the rights it protects, and learn to advocate effectively for things that matter.
And, I’m thrilled you’re hanging out with me.
So, are you ready?
Buckle up and hop on over to kelleykellercom.stage.site (that’s k-e-l-l-e-y-k-e-l-l-e-r.com) or your favorite podcast app to come along for the ride.
I’ll see you in Episode 1.