I am Roe,
Hear me roar

FEATURED SERIES

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:

  • What exactly does Roe say?
  • What exactly does Roe NOT say?
  • What is the state of the law now?
  • Where do we go from here?
  • What actually happened to Roe and Wade?

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.

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.

Links Mentioned

Roe v. Wade – Supreme Court: 
https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137

Akron v. Akron Center for Reproductive Health: https://supreme.justia.com/cases/federal/us/462/416/#tab-opinion-1955113

Calautti v. Franklin – Supreme Court:
https://supreme.justia.com/cases/federal/us/439/379/

Thornburgh v. American College of Obstetricians:
https://supreme.justia.com/cases/federal/us/439/379/

Webster v. Reproductive Health Services:
https://supreme.justia.com/cases/federal/us/492/490/

Planned Parenthood v. Casey:
https://supreme.justia.com/cases/federal/us/505/833/

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 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.” 

[INTRO]

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
  • Medium scrutiny, and
  • Rational basis

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:

  1. it serves a compelling state (or governmental) interest or purpose
  2. it is narrowly tailored to achieving that purpose, and
  3. it uses the least restrictive means possible to achieve it.  

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:

Regulations  …  

  • requiring a woman to provide informed consent at least 24-hours before having an abortion;
  • requiring doctors themselves to provide women with information about the abortion procedure as well as available alternatives such as receiving certain types of medical assistance and adoption;
  • requiring parental consent without judicial bypass – judicial bypass provides minors with a way to literally “bypass” their parents and get consent instead from a judge;
  • requiring abortion doctors to have admitting privileges at a nearby hospital, or at least have an agreement with a physician who does; and
  • requiring the humane disposal of fetal remains.

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:

Part 1

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.  

Part 2

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

Part 3

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.

  • a mandatory 24-hour waiting period for all women seeking to have an abortion;
  • a parental informed consent/judicial by-pass procedure for minor women seeking to terminate their pregnancy;
  • spousal notification provisions;
  • physician-only disclosure requirements
  • and various reporting and disclosure requirements.performance of abortions.
  • the Act also disregarded the court’s definition of medical emergency

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:

First trimester:

A woman’s privacy right was superior to the state’s interests.

Second trimester:

A state’s interests began to emerge as the woman’s privacy interest began to decline

Third trimester:

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.

Links Mentioned

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?

TRANSCRIPT 

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.

Links Mentioned

Roe v. Wade:  https://www.oyez.org/cases/1971/70-18

Planned Parenthood v. Casey:  https://www.oyez.org/cases/1991/91-744

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:

  • What exactly does Roe say?
  • What exactly does Roe NOT say?
  • What is the state of the law now?  
  • Where do we go from here?
  • What actually happened to Roe and Wade?

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 kelleykeller.com (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.

I Am Roe, Hear Me Roar | Trailer

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:

  • What exactly does Roe say?
  • What exactly does Roe NOT say?
  • What is the state of the law now?  
  • Where do we go from here?
  • What actually happened to Roe and Wade?

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 kelleykeller.com (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.