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The Future of Abortion, Part 5: Law

Episode Summary

What went wrong with Roe vs. Wade, and why the court’s effort to resolve the abortion controversy back in 1973 has instead led to decades of division.

Episode Notes

The Supreme Court’s decision on Roe vs. Wade in 1973 was supposed to end the debate on abortion once and for all. But instead, it has led to decades of division. In our “Future of Abortion” series, The Times looks at abortion from a number of perspectives. Today, we dig into where Roe went wrong.

Read the full transcript here. 

Host: Gustavo Arellano

Guests: L.A. Times reporter David G. Savage

More reading:

Where Roe went wrong: A sweeping new abortion right built on a shaky legal foundation

Supreme Court’s pending abortion ruling: What it may mean

When will the Supreme Court make a decision on the fate of Roe vs. Wade?

Episode Transcription

Intro: <>

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Gustavo: The Supreme Court’s decision on Roe in 1973 was supposed to end the debate on abortion once and for all. 

Clip 

Instead…it led to decades of division. 

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And launched a whole new legal philosophy in the United States. 

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But could one…seemingly arbitrary switch in the ruling…have changed the outcome? 

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The Roe v Wade decision in 1973 made abortions legal until “viability…” 

Or somewhere around 28 weeks in a pregnancy.  

And that timetable…

sparked years of litigation… 

And a full on culture war. 

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Protest clip 

I’m Gustavo Arellano. You’re listening to THE TIMES, daily news from the LA Times. 

It’s Tuesday, June 21st, 2022

A Mississippi case that the Supreme Court will decide any day now….

It might strike down Roe versus Wade all together.

Before the Court announces its final opinion, The Times is looking at abortion from a number of perspectives. 

 

Today…where Roe went wrong.

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Gustavo: With me to talk about it all is my LA Times colleague David Savage. He’s been covering the Supreme Court since 1986. David, welcome to the Times.

David: Thx… 

Gustavo: Abortion is just so politicized in the United States, but was it always this way? I mean, was that rancor there? How did the country feel about abortion around the time? Roe vs. Wade was being argued in the early seventies? 

David: It was a big topic in the late sixties through what was then called the women's liberation movement on a lot of different fronts. And one of them was a movement to reform the abortion laws. That's what the phrase that was used at the time. California // passed a law in 1967 that Ronald Reagan signed that reformed the abortion laws to allow abortions in case of rape or incest or whether the mother's life or health was in jeopardy. And so that was the sort of tenor of that era, that things were starting to change. Some states, not most, but some states were starting to reform their laws. It was sort of in the air. And about that time, some young lawyers, women's rights activists, started appealing the question to the Supreme court, basically asking the Supreme court to get involved. They had never dealt with abortion before it was not on the radar, but in the late sixties, early seventies, it started. And that's how the famous case came about, Roe vs. Wade from Texas. 

 

Gustavo: Yeah, I know it was from Texas, but what were the details and how did it actually reach the Supreme court? Especially if you're saying that the court had never really thought about abortion or had any issues like that, how did it get there?

David: Well, there was a case in New York, it was a case in Georgia, a case in Texas. So there were several of them kicking around in lower courts. The Supreme court sort of decided about 1971: We need to face this issue. They took one case from Texas because it was a total ban and they took the case from Georgia because it was a California-like law. It was a little more moderate. And so they ended up with two cases. You probably not heard of the other one. It was called Doe versus Bolton. It was taken up at the same time. And then they had the big issue before them, essentially, what do we do about abortion? Is it unconstitutional? And they were really starting afresh. 

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David: And a lot of other areas of the law, like the fight against segregation for year after year after year Thurgood Marshall and the NAACP legal defense fund would challenge racist segregation laws on different fronts. 

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They started winning in the lower courts and then won the big decision in brown vs. Board of education. 

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David: Abortion was not like that. Roe was essentially the first big abortion case. The first time the court had really confronted the issue, they struggled quite a bit over like a year and a half before they finally decided the case.

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Gustavo: Yeah you mentioned civil rights…and many of those cases were incremental, like Shelley versus Kraemer on housing covenants…Brown versus Board on obviously school desegregation, but with Roe, as you said…it was just one case…a huge case…decided 7-2…And Justice Harry Blackmun…he wrote the majority opinion…which included a lot of medical history…he even quoted a few ancient Greeks…but what he didn’t quote..was the Constitution…

David: When you look back at it now, it seems like it truly was an opinion from a very different era. Blackman had been the counsel for the Mayo clinic. He actually wanted to be a doctor. 

 

AP Tape: Harry Blackman was a lifelong Republican and was considered a staunch conservative when he was appointed to the high court by president Nixon in 1970. Three years later, he wrote the landmark decision in Roe V. Wade as the court legalized abortion.

David: It's sort of a medical rights opinion, and it's sort of the history of abortion back to Greek and Roman times. 

AP Tape: It was written in terms of the doctors' right in consultation with the woman to make a choice about abortion.

David: But he didn't devote a lot of time or effort to saying, how does the US constitution, what does it say about this? There's like one or two paragraphs where he says, well, we've decided there's a sort of right to privacy for personal and family and intimate matters. And that's broad enough to include the right to abortion. 

AP Tape: The decision sparked a torrent of hate mail in which Blackman was called a murderer and a butcher. 

AP Tape Blackmun: There are times when it gets a little tense, but that's the nature of the work with which we are concerned.

David: And so it was a strong medical rights opinion, a very good explanation of the history of abortion and very thin… as a constitutional decision. 

Gustavo: What amendment was Justice Blackmun basing his ruling on…this idea of the right to privacy?

David: He cited several. The ninth amendment says there are some rights that are not mentioned. It's sort of an open-ended one, but the 14th amendment of 1868 after the civil war says there's this right to liberty. People can not be deprived of liberty without due process of law. And he almost sort of in a casual way said that that's broad enough to encompass the right of a woman to end a pregnancy. 

Gustavo: The opinion, David, also said that abortion shouldn’t be restricted until “after viability,” which is between 24 to 28 weeks. How did Justice Blackmun land on that cutoff? 

David: Well, that's an interesting story. It was a small story at the time. It's become a very big story over the years.

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David: Blackman spent a lot of time writing this big draft on his own. He sent it around and his like final version in November of 1972, he said, you'll notice the cutoff point is the first trimester. He said, that seems reasonable. I know it's arbitrary. Maybe quickening, maybe viability. Several justices said, that's fine with me. Two of them center on memos from their clerk saying, oh, you really ought to… some women don't even grapple with us until later. 

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David: Viability, like 28 weeks would make more sense. And so Blackman said, okay, I'll change it. Made it 28 weeks. 

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David: I'd say for the better part of the last 20 years, 25 years, all the legal fights had been over late term abortions. And so in a sort of casual way, the court made a very big decision without really spending a lot of time thinking about it. It turned out to cause a lot of consequence because the public was with the court on the early abortions, solid majority, but not later abortions. 

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Gustavo: Coming up after the break…how Roe versus Wade….and that seemingly casual change to its timetable….reshaped the country’s politics. 

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Gustavo: David, before Roe versus Wade, there didn't seem to be much real divide between Democrats and Republicans on abortion. It seemed very much to be a Catholic thing. When did that start to change? 

David: You're right about that, Gustavo. And it started to change in the seventies and actually fairly, it changed over time.

NBC Tape: Good evening. I met when Newman, moderator of this first debate of the 1976 campaign between Gerald R. Ford of Michigan Republican candidate for president and Jimmy Carter of Georgia democratic candidate for president. 

David:  For example, in the 1976 election, Jimmy Carter was an opponent of abortion and Gerald Ford, he and his wife were pro choice people. 

NBC Tape: Tonight's debate focuses on domestic issues and economic policy. 

David: So as late as 1976, the Republican presidential candidate was more a supporter of the right to abortion than the Democrat. Started to change over time. And the big change came in 1980 with the election of Ronald Reagan.

NBC tape 

David: Ronald Reagan said he was a pro-life person. The Republican platform said we will stand up for the rights of the unborn. 

Reagan Foundation Tape; Reagan : with regard to the freedom of the individual for choice, with regard to abortion, there's one individual who's not being considered at all. That's the one who was being aborted. 

David: When Reagan became elected, it became the sort of official Republican mantra that we're going to appoint justices who will overturn Roe vs. Wade. 

Reagan Foundation Tape; Reagan: The litmus test that's in the Republican platform says no more than the judges to be appointed should have a respect for innocent life. Now, I don't think that's a bad idea. 

David: And over time, both parties separated all of the Catholic Democrats who were opposed to abortion, sort of moved out of the democratic party. And the Republicans became the essentially 100% pro-life party. And the Democrats became the women's rights pro choice party. 

Gustavo: And a lot of that push was because of evangelicals who all of a sudden became very, very important to the republican party. 

David: Yes. That is correct, too, that as you said early on, you could look at the Catholic states in those like Massachusetts and Minnesota and Pennsylvania, were the anti-abortion states. 

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David:  Over time in the late seventies, Paul Wiric…He was a Christian conservative,

CSPAN Tape: Did you invent the phrase, “the moral majority?” I did…it was an odd situation.

David: He was sort of early on believing that Republican party should take on more of these culture issues. There was a culture divide in the country. 

CSAPN Tape: Well, out there you might say there is a moral majority, but it has been separated by historical and denomination difficulties.

David: It's now sort of the principle we all accept, but it was not so in the seventies. The parties still were much more concerned about federal spending and taxes and all that. He was one who was a real culture warrior and knew that abortion was an issue that would sort of drive voters. 

CSPAN Tape: If one could get those people together, you could constitute a majority in the country.

David: The Republican growth in the late seventies and eighties was the sort of Evangelical Christian signing on to this more conservative cultural agenda of the Reagan administration. 

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Gustavo: We've been talking about the cultural and political ramifications of Roe vs. Wade and the controversies, but legal experts. They had issue with the ruling from the beginning, even those who supported abortion rights, like justice, Ruth Bader Ginsburg. She wasn't even on the Supreme court yet. But what did she have to say about Blackmun's decision and what would she have done differently?  

David: You're right about that. She was head of the ACLU women's rights project. She was very skeptical of the Roe opinion for a couple reasons. it went too far, too fast she said. You know, it took that one case and basically struck down all the abortion laws all across the country in one decision, and also said the right to abortion was up to 28 weeks and she thought correctly that it would create a backlash. And that that principle could always be under attack. 

AP Tape: So many of us bought the lie in the early seventies that abortion was passed just so there could be the times where the woman's life was in danger. It was a lie then it's a lie now. And you have to know the women all over this nation are recognizing that lie and that we will stand for life. Pro life! Pro life! 

David: I think what Ruth Ginsberg  thinks the court should have done was decide a sort of a narrow case involving one state, say that there is some sort of right to abortion and then nudge the states to liberalize their laws, to do it sort of gradually over a decade or 15 years. She also had the, I think excellent insight, which was, this was a decision about women's equality, these laws were passed by men. They were enforced by men. The impact was entirely on women. 

AP Tape: If you take away our rights to make our personal decisions about our bodies, we will see you at the ballot box in November. When we fight we win!

David: So I think she thought it would have been better if the court had relied on the principle in the constitution of the equal protection of the laws. The privacy, right, which was that Blackman sort of signed on to, it was just sort of an open-ended concept. And she thought that the abortion decision should be grounded in the principle of women's equality.

Gustavo: Because of all that legal controversy, there was a lot of challenges to Roe during the eighties. And in 1992, there was a Supreme court case, planned parenthood versus Casey out of Pennsylvania. And it came before the court. I vaguely remember it as a teen, but I remember a lot of people saying, oh, Roe’s going to come down because of this. What were the details of Casey? 

David: Well, Reagan put three new justices on the Supreme court, his successor, George H w two more. They were all believed to be critics of Roe vs. Wade. Rehnquist and Byron white had dissented in Roe. And I remember that time well, in the spring of 1992, it looked there was seven opponents. 

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AP Tape: Pennsylvania's pro-choice senators tried in vain to stop passage of what many are calling the toughest abortion controls in the nation. The bill requires women to notify their husbands, ban abortions after the 24th week of pregnant. And establish a 24 hour waiting period before having an abortion, the author and architect of anti-abortion bills in Pennsylvania. And this bill state representative Steven friend says that pro-choice supporters are hesitant about challenging his law. Lest it end up before the U S Supreme court, which could then restrict abortion even further. 

David: We didn't know exactly what they're going to do, but the belief was that if Rehnquist then would have a majority, once Clarence Thomas was confirmed in 1991, to essentially say there is no right to abortion and states can go back to criminalizing it.

AP Tape: Since this court's decision in Roe vs. Wade, a generation of American women have come of age secure in the knowledge that the constitution provides the highest level of protection for their childbearing decisions. 

David: Pennsylvania case was argued. The justices met behind closed doors. There were seven of them to strike down the Pennsylvania law. Rehnquist said, I'll write the opinion. That's the way they were. He's going to write this opinion and basically explain why there is no right to Roe vs. Wade. But Sandra O'Connor said, I'm not ready to go for overturning Roe. I'm going to write a separate opinion. 

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David: David Souter, who was a relatively new guy from New Hampshire, not well-known.

AP Tape: A new Supreme court justice was sworn in this year. David Souter and enigmatic scholar from New Hampshire succeeded, liberal William Brennan, Suiter vowed to protect the constitution. I will try to transmit it. I hope refreshed to another generation of the American republic. Conservatives hoped suitor would swing the court their way. 

David: Nobody knew his views. Souter didn't know his views on abortion, and basically said to him, I think I can come with you because I think as a matter of precedent, the court shouldn't go back and overturn an constitutional right like this. This is a precedent. We ought to stick with it. Then to their surprise, Anthony Kennedy, who was Reagan's third appointee… 

SCOTUS HEARING Tape: Judge Kennedy. Welcome. We're delighted that you are here and are anxious to get this underway. I'd like…

David: To their surprise. Anthony Kennedy basically came to them and said, I'm closer to where you two are than where the chief is.

SCOTUS HEARING Tape Kennedy: The framers had an idea which is central to Western thought.

David: In other words, Kennedy thought long and hard about overturning Roe. He was a Catholic conservative, thought abortion was immoral, but he also was thought the constitution protected Liberty, including liberties, that he didn't agree with.  

SCOTUS HEARING Tape Kennedy: A line that's drawn where the individual can tell the government beyond this line, you may not go. Another great question. Constitutional law. One, where is that line drawn? And two, what are the principles that you refer to in drawing? 

David: He really struggled with that question. He went to O'Connor and Souter and they decided to write a separate opinion that would say, yes, the government can regulate abortion, but it can't ban it can't restrict it. And, um, that they want to work on that inside the court. It was only a couple of weeks later before Rehnquist's learned about it. I remember a scene where Rhenquist was walking around. He liked to go out and walk in the morning around the court building. And he was walking with Anthony Kennedy and Rehnquist was really talking with him and seemed very perturbed. And we didn't know what was going on at the time. And it turned out that Rehnquist realized that Kennedy had sort of abandoned ship. He thought he had five votes, at least overturn Roe and turned out he only had four. And so it was quite a surprise when the last day of the term, there was three O'Connor, three and two others, Harry Blackman and John Stephens. It was a five to four vote to affirm the right to abortion.

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David: I think a lot of people on the abortion rights side said, we dodged a bullet. That's over and done with. Bill Clinton was elected president that fall, but it turned out that from then on out, what the conservative movement learned from it is that we need to pick // conservative justices who will not waiver. 

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AP Tape: We will never, ever, ever give up. We will fight until we prevail and the day will come. I believe in my lifetime when politicians like bill Clinton will be a part of our sorry, past, 

David: That's sort of where we are now. 

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Gustavo: After the break, a reshuffled core and a new judicial philosophy.

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Gustavo: David, it wasn’t just the political divide that Roe versus Wade ended up widening…it also galvanized a judicial philosophy that had previously been taught mostly in conservative circles…. Originalism. What should we know about it?

David: Well, originalism, as you said, really did grow out of Roe vs. Wade, because it really fueled that movement. It began with the Reagan justice department, Ed Meese, Robert Bork, basically saying we shouldn't allow the unelected justices to make up provisions of the constitution. We ought to decide constitutional cases based on what the constitution said or what it meant when those provisions were put into the constitution. For their point of view, the Sterling example, the prime example was Roe vs. Wade, because no one thought in the 1860s, when the 14th amendment was added, that it had anything to do with abortion or a right to abortion. And it was very hard to get it from the language.

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David: A lot of the young conservative attorneys who came along in that era..

SCOTUS HEARING Tape: I swear that the testimony you're about to give before this committee will be the truth, the whole truth, and nothing but the truth. So help you. God. I do. 

David: Brett Kavanaugh is a good example. 

SCOTUS HEARING Tape: My judicial philosophy is straightforward. A judge must interpret the constitution as written, informed by history and tradition. 

David: Neil Gorsuch or good example.  

SCOTUS HEARING Tape: Mr. Chairman, I am honored and I'm humbled to be here. 

David:  They came up with the view that the right way to decide constitutional cases as Justice Scalia would say is look to what the constitution says and look to what it meant at the time.

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David:  And now we've got five justices who espouse that view.

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Gustavo: Justice Samuel Alito actually invoked originalism in that leaked draft opinion that we saw for the Dobbs case…

David: Yeah. Samuel Alito is one of those true believers, a sort of culture-war conservative, George Bush, second appointee along with Clarence. Sam Alito have for a number of years, been ready to overturn Roe vs. Wade. He's now got three on his right. The three Trump appointees. And yes //  the draft link draft opinion is basically an explanation of why. If you look at the constitution, the way it was written and its history, it's very hard to come up with the idea there was a right to abortion. He says, it's grievously wrong to say that and innovative. The opinion has proven divisive, he said. 

Gustavo: There’s also one line in the draft… “the court should be “reluctant to recognize rights that are not mentioned in the Constitution”…and so that has a lot of people worried about other Supreme Court decisions…like the one on gay marriage. They’re afraid that now those could be overturned as well, those decisions. Are those rights at risk?

David: Well, I think not, but that's just a guess because // this is a very conservative court. They're going to be around a long time. The reason I think it's different though, is that gay marriage might've been controversial in the nineties or whatever. But it's been accepted by the American public. 

AP Tape: In a five to four ruling, the high court said same-sex couples have a right to marry anywhere in the U S .By the power recently vested in me by the state of New York. I now pronounce you married. Congratulations.

David: You know, the argument in abortion was you're ignoring the unborn job and that's why it's different. But gay marriage strikes me as is such a good thing. And nobody's hurt that there's not the same animus for politicians and others to say, we should go back and try to unwind or knock down the same-sex marriage right. So, you know, I can't predict the future, but it doesn't look to me like that there's going to be a real challenge to same-sex marriage. 

Gustavo: On the other hand, though, you do have authorities in Texas like the governor Greg Abbott and the Attorney General Ken Paxton. And they’re openly saying “oh, there's this case, Plyler vs. Doe, from 1982 that gave undocumented children the right to a public education in Texas. And we don’t like the decision, so now we’re going to challenge it.” So all this backlash and partisanship… that judicial philosophy of originalism, all of this emerged in the wake of Roe. David, have we ever seen a similarly divisive decision like it before or since at the Supreme Court?

David: I can't think of one quite like this. And you're right to point out the Plyler case from Texas.

SCOTUS Tape: We’ll hear arguments first this morning in Number 80 15, 38 to fire the superintendent of the school districts, uh, against Roe and  the consolidated case. 

David: That's one of those decisions that you can imagine, Greg Abbott finding a way to challenge it and getting that issue back before the court. 

SCOTUS Tape: Mr. chief justice. And may it please the court, the questions before this court today may and indeed based on the last year's experience will dramatically affect the future of the state of Texas and some of it's school district.  

David: But no, Roe is unusual in the sense of being a sort of a 50-year division that never quite ends and never quite heals. And it's now, you know, metastasized into all these other areas that sort of culture war issues that is sort of unique because it's so individual and so personal, and it seems to never end. 

Gustavo: Finally David, that change in the Roe opinion that justice Harry Blackmun made it in 1972. The one you mentioned about the legal cutoff viability for abortion around 24 to 28 weeks, could all of this rancor around Roe vs. Wade have been avoided if he had just stuck with the first trimester instead? 

David: My guess is that could have, Gustavo, but that's a real guess. It's sort of unwinding history. And what I mean is if they had fallen, what Ruth Ginsburg had said, and sort of decided a minor case and said, Hey, Texas, you can't ban all abortions except for the life of the mother. I think it's possible that some of the political compromises would have been worked out in the seventies and eighties. So it would not have become this sort of fractured issue because people pointed out to me is the pro-life side. Once they lost in row, there was nothing else to do. They couldn't go to states and win anything. The only way they could do is fight the court, fight Roe versus Wade, and they spent all these years organizing around the principle of fighting Roe vs. Wade.

protest tape

David: And so that's where we are today and it's hard to know, but I think it's possible things would have worked out much differently and much better had the court move slowly in the seventies, rather than sort of all-or-nothing approach that they took 

MUSIC AP TAPE

Gustavo: David. Thank you so much for this conversation. 

David: Thanks.

AP TAPE BUMP TO REVERB OUT 

BREAK 3 

Gustavo: And that’s it for this episode of THE TIMES, daily news from the LA Times

Kasia Broussalian was the jefa on this episode and Mario Diaz mixed and mastered it. 

Our show is produced by Shannon Lin, Denise Guerra, Kasia Brousalian, David Toledo, Ashlea Brown, and Angel Carreras. Our editorial assistants are Madalyn Amato and Carlos De Loera. Our engineers are Mario Diaz, Mark Nieto and Mike Heflin. Lauren Raab and Kinsee Morlan edited this episode. Our executive producers are Jazmin Aguilera and Shani Hilton. And our theme music is by Andrew Eapen. 

Like what you’re listening to? Then make sure to follow the Times on whatever platform you use. Don’t make us the Pootchie of podcasts!

I'm Gustavo Arellano. We'll be back tomorrow with all the news and desmadre. Gracias.