Dan Snow's History Hit - Roe v. Wade: America's Landmark Ruling

Episode Date: January 21, 2022

On January 22, 1973, the U.S. Supreme Court struck down a Texas law banning abortion, effectively legalising the procedure nationwide. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.Roe v. Wade, involved the case of Norma McCorvey “Jane Roe”, who in 1969, wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.Linda Greenhouse has reported on and written about the Supreme Court for The New York Times for more than four decades, earning numerous accolades, including a Pulitzer Prize. Currently, Linda writes an opinion column on the court and teaches at Yale Law School - today, she joins Dan on the podcast. They discuss the legality of abortion prior to the 19th century, the details of the court ruling, and the legacy and current challenges to Roe v. Wade, which continues to divide Americans today.If you'd like to learn more, we have hundreds of history documentaries, ad-free podcasts and audiobooks at History Hit - subscribe today! To download the History Hit app please go to the Android or Apple store.

Hello everybody, welcome to Dan Snow's History Hit. On the 22nd of January it is the 49th anniversary of the US Supreme Court's landmark ruling in the case of Roe versus Wade. Jane Roe was in fact called Norma McCorvey. She was a Texan woman in her early 20s who sought to terminate an unwanted pregnancy in 1969. Her case was eventually, after she'd had her child in fact, taken up by the Supreme Court and they decided to strike down the Texas law which banned abortion and that effectively legalized the procedure nationwide. And that was the starting gun for a major partisan culture war that rages to this day and may be nearing a successful conclusion, those who wish to see

Roe versus Wade overturned. Tell me all about it. I've got one of the greats, Linda Greenhouse. She worked at the New York Times for four decades. She's written about the Supreme Court. She teaches at the Yale Law School. She's very brilliant. She's written a book about the remodeling of the Supreme Court in the last months and weeks of Donald Trump's regime. And she's going to tell me all about Roe versus Wade. Fascinating stuff. If you wish to listen to more of these podcasts without the ads, we go back five years. We've got five years of these podcasts. In fact, we're starting to do the same anniversaries again. We did the 70th, now we're doing the 75th. Anyway, so that's how long we've been around. You can check them out

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the very brilliant Linda Greenhouse. Linda, thank you very much for coming on the podcast. My pleasure. Is it possible to say what was the legal status of abortion in the 19th century? Was it state by state or was there a federal approach to abortion? Well, I'd say at the founding of the country, abortion was legal. I mean, nobody thought to criminalize it. What happened was later in the 19th century, there was sort of a wave of sanctimony, much like today, washed over the country. And so state by state began to criminalize abortion. So

by the turn of the 20th century, abortion was illegal in every state in the United States. What was that impulse in the 19th century? What was going on there? It's complicated. As I said, there was a kind of a religious impulse on the one hand. Also, there was a competitive impulse. So the medical profession was quite alarmed at the fact that there were a lot of abortions and they weren't being done by doctors. They were being done largely by women, non-physicians. You might analogize them to midwives today. And doctors were annoyed that women were getting medical services not provided by them. And also there was an anti-immigrant impulse to this.

So the country had an open door and many immigrants were coming from various parts of Europe and they were coming and having babies. And the white Anglo-Saxon women of America were having abortions as often as they were having babies. And there was this fear that the population of the country, this all sounds so current, would be overrun, overwashed by these undesirable groups, quote, undesirable groups. So all these things came together. And of course, women didn't have a vote. Women didn't have a voice in politics or in the public square. And so, as I said, state by state began to criminalise abortion. As early as the 19th century, was this a partisan political issue or was this a matter of campaigning that might sit outside the narrow confines of a party political contest?

narrow confines of a party political contest? I've never heard that it was partisan or political in that way, which is actually quite an interesting point because when we move on and get to what was happening just around the time that abortion was legalized, it wasn't a partisan issue then either. So it was a heartfelt issue. It was a controversial issue, but not one that divided neatly into Republicans versus Democrats. That's right. And I'm not even sure how controversial it was. As I say, women didn't have a voice. There was nobody to speak for them. And so this kind of washed over the country, I don't believe, with a lot of hand-wringing or understanding of the social impact. And of course, the social impact was it drove abortion not out of the picture, it drove it into the back alleys at great risk to the health and lives of women who were trying to terminate their pregnancies. The Comstock Law, just before we leave the 19th century, just tell me a little bit more

about Comstock, because in terms of their contraceptives, and it's been easy to almost laugh at it, but there was nothing funny about them at all, particularly in their result on, as you say, reproductive health. Yeah, I mean, don't forget, this is a country that banned alcohol after the turn of the 20th century. So there's always been this impulse in the United States. And yes, the Comstock laws and the banning of the use of the mails for any information about contraception and so on. These things seem a little bit laughable today. But if you step back and look at what's happening in this country today, actually, they seem like warning signals of a

disease that can recur and that I think is recurring today in 2022. Just quickly remind us, because in Comstock laws, it was what? You couldn't distribute information through the postal system about contraception or any kind of contraception itself. That's right. And contraception, such as it was in those days, actually was not banned in most of the country. It was banned in those states that were under the control of the Catholic Church. And that was Connecticut, where I'm sitting right now, and Massachusetts. By the mid-20th century, those were the two holdouts. But, you know, people would get arrested. And it sounds weird, but that's part of the undergirding of the social and political fabric of this country.

Well, let's come now to the 1960 propelled by the new women's rights movement that was coming up in the 1960s. Actually, that's not quite the case. The push for reform came initially from the medical community, which is a little bit ironic because it was the organized medical community that had kind of led the wave of abortionist criminalization. But there were public health doctors who started writing articles and pressing within the profession that, you know, we have a public health crisis, and the public health crisis is illegal abortion that's driving women into the back alleys and causing substantial maternal illness and death. And then the legal profession, the elites of the American legal profession, the American Law Institute, which is still around and is a group of elite lawyers and judges and legal scholars, was in the middle of revising the

country's criminal code. Now, they don't have the power to do that, but they put out model codes. And actually, they were very much influenced by what was going on in the UK at that time. The decriminalization of homosexuality, for instance, had a big impact in the thought process that was behind this. And the thought was, it's time to take a look at the criminal codes across the board of the various states, because criminal law basically resides in the states in this country, and come up with some model rules. And one of their model rules was, let's get rid of the criminalization of abortion. So those two things were happening, the doctors and the lawyers. The witness movement actually had other priorities,

access to education, access to work, child care, that kind of thing. They came a little bit late to the abortion issue. It was not without controversy, actually, inside the women's movement. But of course, eventually, under a very powerful woman named Betty Friedan, who is the founder of now the National Organization for Women, made abortion reform a central part of her priorities. And so the women's movement then got on board. And talk to me about the famous case in Texas in 1969 that we now know as Roe versus Wade. Who are those people? I'll give you a little bit of context for that. So Roe v. Wade is the case that

established the constitutional right to abortion. It was one of a couple of dozen cases that were bubbling up all over the country. And actually, one of these cases had by that time already succeeded in the state court of California, which had lifted that state's criminal abortion ban. in the state court of California, which had lifted that state's criminal abortion ban. So there were a lot of cases in the pipeline to the Supreme Court. The case that we now know as Roe happened to be the first in line. It wasn't necessarily the best case. It wasn't the best litigated case, but it was the first case. And so the court had no choice but to take it under the law at that time. It fell within mandatory jurisdiction of the Supreme Court. But the case was the challenge to the Texas law that made abortion

a crime in all cases, except when necessary to save a woman's life. So there were two young lawyers, Sarah Weddington and Linda Coffey, Sarah Weddington, who died just a couple of weeks ago, actually, they were looking for a case that could challenge the law. That was not easy to do. I mean, who wanted to go public and challenge the abortion law? But they found a woman whose name was Norma McCorvey, who was pregnant. It was her third pregnancy. Her life was quite a mess. She had had two earlier children of which she did not retain custody. Actually, she wanted an abortion. There was no way she was going to be able to get an abortion, actually, because, of course, by the time such a case would be litigated and she was already a couple months pregnant,

you know, she would have had the baby. And in fact, she did have the baby. So she got actually no benefit from the case. But she became the anonymous plaintiff, Jane Roe. Roe versus Wade. So who was Wade? Henry Wade just happened to be the district attorney in Dallas where the case was filed. He was not any kind of anti-abortion crusader. I think later in his life, he said he favored reform of abortion laws, but it was his name on the legal pleadings because he was the one who had to enforce the state's laws. And actually, as part of the original litigation, there was a doctor who was also one of the plaintiffs, along with Norma McCorvey, Jane Roe, who was facing criminal prosecution for having performed an abortion. But the Supreme Court cut him out of the case because there's a doctrine that the federal courts

couldn't interfere with an ongoing state criminal prosecution. So it came down to just Jane Roe versus Henry Wade, but Henry Wade was just kind of a passenger in the case. Okay, that's very interesting. And his name is now one of the most famous names in US history. What happened in the case? How did it progress? So in the lower court, it went to a court of three federal judges under the way the legal system was working at that time. And this three-judge court said,

yes, the law is unconstitutional under the law of privacy and due process has recently been articulated by the Supreme Court. So we declare the law unconstitutional, but we're not going to enjoin its application. That is to say, we're not going to stop the state of Texas from actually carrying out the criminal law because we have a limited power as a lower federal court. And we are sure that the Texas state legislature will step up to the plate and fix this problem. So that's why Norman McCorvey's lawyers brought the appeal to the Supreme Court. It's a little bit confusing because when you tell people that actually the lower court struck down the Texas law, you say, okay, well, then why did she appeal? She appealed because the law was still in effect,

even though it had been declared unconstitutional. So it came up to the Supreme Court. It was argued once in the fall of 1971. What happened just before that argument was two elderly justices resigned from the court. So there are only seven justices. It was argued before seven, there should be nine. And later in the next year, in early 1972, the court decided, you know, we really should have this argued before a full court. Richard Nixon was president. He had just appointed two new justices to replace the two who had resigned. So the case was argued a second time in the fall of 1972. By this time, it was quite a big news event. People were really paying attention because abortion, even though some states had begun to liberalize their laws through legislative action, abortion was still illegal in almost the entire country. And the case came down

49 years ago. Of course, the question now is, will Roe live to see its 50th anniversary? We'll talk about that later, I'm sure. 49 years ago. And the court ruled seven to two, not five to four, as most people assume, seven to two, including three of Richard Nixon's appointees in the majority, including the very conservative chief justice at that time, Warren Burger. The court said that as a matter of the constitutional right to privacy and due process under the 14th Amendment to the US Constitution, women had a right before viability, before the fetus could live on its own, to terminate pregnancy. And that's the law we've had for these last 49 years. And why do you think it was not an issue then? You mentioned the conservatives. It reminds me of Richard

Nixon's attitude towards the environment as well. Why was it an issue then that did not break as neatly along the partisan lines that we recognise so clearly today? Well, there was actually strong public support for the reform of the abortion laws, which no longer made sense to many people. So the summer of 72, when the court was working on the case, there was a Gallup poll that was published and Americans were asked, do you believe that abortion should be an issue between a woman and her doctor without involvement by the state? And strong majorities of every demographic group, men, women, Catholics, non-Catholics, educated. It was only the uneducated, those with a high school

degree or less, who had their doubts about this. But the court was really reflecting not only the view in the country as a whole, but specifically the view of the justices' professional peers in other professions, the doctors, the lawyers. Politics had not entered into it at that point. People have a mythology that, you know, the court came down with the opinion and a political firestorm emerged from that, a big backlash emerged from that. And it's a much more complicated story than that. You listen to Dan Snow's history,

we're talking about the anniversary of Roe versus Wade. More coming up. Have you ever wondered if those pointy medieval shoes gave you bunions? Would you be friends with someone who had leprosy in the Middle Ages? And what on earth does that Bluetooth symbol on your phone have to do with the Vikings? I'm Dr Kat Jarman, and on Gone Medieval, we find those answers for you,

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Rebellions. And crusades. Find out who we really were. By subscribing to Gone Medieval from History Hit. Wherever you get your podcasts. Find out who we really were by subscribing to Gone Medieval from History Hit, wherever you get your podcasts. I'm just doing some math here. Norma McCorvey, Jane Roe, nine months.

The case was not decided in nine months. So what happened to her third pregnancy? Well, because she had had a baby by the time the case came down. And actually, your listeners might be interested. A book was recently published here in the US about that. It's called The Family Roe. A young man named Joshua Prager set out to find out what happened to Norma McCorvey's three children, including the one who was born while Roe was being litigated. It's a very interesting book, The Family Roe. But actually, a new doctrine emerged from Roe versus Wade that had nothing to do with abortion. But it was obviously prompted by this fact that who could challenge an abortion law and get an answer in

time while they could actually avail themselves of the right to abortion. It's a doctrine known as capable of repetition yet evading review. And it's an exception to the mootness doctrine where a court loses jurisdiction if the case is moot. It no longer has a live controversy to decide. loses jurisdiction if the case is moved. It no longer has a live controversy to decide. But if it's an issue that escapes the court because of a timeliness problem, like with pregnancy, and obviously the issue will come up from some other woman in some other pregnancy, it's capable of repetition yet evading review. And she went on an interesting journey. She was active in abortion rights and then changed her mind later in life, didn't she? Yeah, it's a sad story.

I mean, Norma was kind of used and abused by both sides. I mean, once the case was submitted to the lower court, her lawyers didn't keep in touch with her. And they never even called to tell her that the case had been decided. She was kind of nowhere. And the Right to Life side of the street kind of found her and took care of her and persuaded her that she should become a poster child for anti-abortion, which she was for a number of years. And then by the end of her life, there was a documentary film that came out last year or so that kind of tracks her through the end of her life. She said, oh, you know, I never meant that anyway. And I believe there should be a right to abortion. So she was a person

without very many emotional or intellectual resources, shall we say. And like a lot of people that end up as accidental heroines or accidental victims or accidental martyrs in one cause or another, she was maybe all three. It's an interesting example of law. You talked about the law was changed after that. Law change is something we maybe associate with the legislative branch. We associate with Congress and the States and Parliament here in the UK. Why were politicians happy for it to be left to the courts? Why do we not have an act of Congress dealing with this issue? Why do we have Roe versus Wade? Well, that's interesting. I don't think Congress at the time thought that it had jurisdiction over something like abortion. As I said earlier, most criminal law, almost all criminal law,

is a matter of state law. And if you regard abortion as an issue of public health, public health is a matter of state law. So the question really is what was going on in the states. And New York State, which of course we regard now as a blue state, a liberal state, the legislature actually reformed its abortion law, repealed the 19th century criminal law in 1970. But that's, again, everything about this whole story is intensely complicated. The reform law in New York passed by only one vote. And the next year, the Catholic bishops in New York State went ballistic and preached against it and really put the screws on Catholic legislators. And believe it or not, the next year, this liberal New York state repealed the reform and their legislature was going to be willing to go back to the criminal law. Only a veto of the repeal by Governor Nelson Rockefeller kept the reform in New York alive. I went into this kind of detail in answer to your question to say that, although every state legislature in the country had the power to reform its abortion laws, the church was so strong in so

many states that it was just not going to happen. Now, there were some southern states, and this again is counterintuitive, states like Georgia, who did reform their laws because there was a very small Catholic population in the South at that time. And they adopted the model law that this group of elite judges and lawyers, the American Law Institute had put out. It required women to jump through a lot of hoops to get a legal abortion, to go before a committee in the hospital and persuade, I think, five doctors that they really should have an abortion. So the Supreme Court took that case as a companion case to the Texas case, companion case to Roe, and also invalidated the Georgia law as setting too great an obstacle to women who were trying to claim the right to terminate a pregnancy.

too great an obstacle to women who were trying to claim the right to terminate a pregnancy. Let's bring it up to the present day here. It was seen as, what's the expression they always use in their nomination hearings, seen as settled law, settled case law or whatever, but maybe it isn't so settled. It is under attack. And you can tell me why in terms of the composition of the Supreme Court, I guess. Well, that's right. I mean, what happened after Roe is that the Republican Party saw an opening. The Republican Party, Richard Nixon, who really didn't care about abortion one way or the other, but he cared about his political future, had been very successful in what they called the Southern strategy. And that was to use race in peeling away traditional white Democratic voters from the Democratic Party and turning them into Republicans. The Republican leaders said,

we can do the same thing in the North. We can have a Northern strategy. We can use abortion. We don't need to use race. We can use abortion and peel away the traditionally Democratic, Catholic, urban, ethnic voters in the North and turn them into Republicans. It took a long time, eight or 10 years. So by the time Ronald Reagan became president in 1981, the Republican Party had really aligned itself with the anti-abortion movement. And so this continued and every Republican president ran on a platform that pledged him to appoint judges and justices who would overturn Roe versus Wade. This was part of the political armature of the Republican Party. And so we come up to today where Donald Trump had three openings. Well, claimed one that

he didn't really legitimately have that should have gone to President Obama, but he filled three vacancies in his four-year tenure. And that created on the court a majority of justices. Now, we don't quite know what they're going to do yet, but we know justices who have strong, strong reservations about the right to abortion as a constitutional matter. A case that puts this directly to the court, a case from the state of Mississippi, was argued in early December. It will be decided within the next few months. And so the country's kind of holding its breath in the expectation that, as I said earlier, Roe may well not live to see a 50th anniversary. There are presumably no restraints. They can choose to overturn it. Do they have a legal

route? Do they have to prove that the court got it wrong in the 70s? What is it incumbent upon them to do to overturn it? Well, I mean, that really is the question, Dan. And I have to say, I'm hard pressed to think of what they're going to come up with. As you said, justices who've been confirmed recently have said, yes, Roe is settled law, quote, settled law. What does that mean? It means it's settled until there are five votes to go the other way. Not to sound totally skeptical, but what are they going to say? Well, one route they might take, the Mississippi law, whose constitutionality is at stake, bans abortion after 15 weeks of pregnancy. Now, a fetus is not viable until several months after that, 22 weeks, maybe 23 weeks. Roe and the cases that came along between Roe and now have upheld viability as the absolute wall between a woman and the state. Before viability, you can make the woman jump through all kinds of hooves. You can make her listen to biased, so-called informed consent scripts from the doctor.

You can make her undergo an ultrasound that she doesn't need. You can do all kinds of things. But at the end of the day, before viability, she has the right to terminate that pregnancy. So if the court upholds the Mississippi law and says something like, you know, there's still a right to abortion, but a woman just needs to act more quickly and get the abortion before 15 weeks, that would open a gaping hole in the right to abortion because there'd be no principle behind it. You know, viability states a principle. Before the fetus can live outside the woman's uterus, the pregnancy can be terminated. After that, no. So if you can ban viability at 15 weeks, why not 10 weeks? Why not

six weeks as the new Texas law has done? Why not zero weeks as some states are trying to do? So in that way, the court on the surface would not be overturning Roe, but what they would be doing would be just carving a gaping hole in the middle of Roe that would open the door for other states to go ahead and do whatever they want to do. You mentioned other states, and you mentioned earlier that some of the reforms in the 1960s in the US were being inspired from outside the US and particularly in the UK. What do you think the impact of overturning Roe versus Wade would be elsewhere in the Americas, elsewhere in the world? Well, I think it would have other countries just kind of scratching their heads. I mean, here we had on our border a few months ago, the Mexican Supreme Court opened the door to legalizing abortion in Mexico. It's already legal in Mexico City. So we have this image of women in Texas who could no longer get abortions crossing the border into Mexico to get legal abortions. Now, that's pretty head-snapping. We have, of course, the referendum in Ireland

a couple of years ago that legalized abortion. So I don't think that the U.S. Supreme Court overturning Roe would inspire other countries to tamp down on abortion. I think it would make them feel rather superior as countries living in the modern world instead of countries being under the grip of religious extremism. And I think they feel pretty proud of themselves compared to the US, actually. And within the US, in terms of the states, how many states do we think would see abortion effectively made illegal? This is obviously not something that would affect all 50 states, would it? That's right. That's right. It is a matter of state law to that extent. About half

the states would probably ban or severely limit abortion. The problem is those states are clustered in the middle of the country. I don't know the extent to which your listeners have the US map in mind, but the red versus blue, the blue liberal states are on the coast of the country. I don't know the extent to which your listeners have the U.S. map in mind, but the red versus blue, the blue liberal states are on the coast, the Atlantic coast and the Pacific coast, and the red conservative states are in the 2,500 miles in between. So although you might say, well, a woman in Nebraska can just get on a plane and go to New York or go to California. Not so easy for people. Not so easy. Before Roe, women with means would fly to London from the East Coast or would fly to Tokyo from the West Coast.

That's great if you can do that. There would be a great income and social class disparity in the country as to who could avail themselves of what used to be a constitutional right for all women. And let's just end up on what do we know would be the result in terms of its effect on women's health? Well, actually, the access to abortion has devolved currently really down the socioeconomic ladder. So there are many fewer abortions now among middle-class women. Why? Because they can avail themselves of long-lasting, reliable, and quite expensive contraception. So most abortions now are among the poorer women who

have much less access to healthcare. I mean, probably your listeners know what a mess health care is in this country without a national health system. You know, people would be forced to have babies that they didn't feel they were equipped to care for. There's already a severe disparity in pregnancy outcomes between rich and poor in this country, and between white and black also, I should say. So the situation would be pretty tragic in a modern country in the 21st century to be going backwards in this way. Well, thank you very much indeed for coming on the podcast and talking about it. If people want to learn more, how can they get hold of your book? Okay, so my new book, thank you for mentioning it. It's not specifically about abortion,

but it's about what's going on in the Supreme Court today that has led up to that. And the book is called Justice on the Brink. The subtitle is The Death of Ruth Bader Ginsburg, The Rise of Amy Coney Barrett, and 12 Months That Transformed the Supreme Court. And it's a chronicle of the last term of the court in which the court decided to move down this road and undertake to hear the Mississippi abortion case. I think it's available through Amazon in the UK. And just remind us, Ruth Bader Ginsburg, famous RBG, she died how long before the election? She died about six weeks before the election in September of 2020. My book kind of starts with that. Nobody anticipated that Donald Trump facing election in six weeks and Americans were already voting by the millions through early election in many states, would actually have the nerve to nominate somebody to fill the vacancy.

But of course, he controlled the Senate at that time. And so the Amy Coney Barrett nomination was pushed through without a single Democratic vote. And she was confirmed about two weeks before the November 2020 election. And then there was a super spreader event in the White House as well, for just to add. Oh, yeah. When President Trump introduced his nominee to the country, there was an unmasked gathering in the Rose Garden outside the White House, a very lovely venue for all kinds of nice events. And of course, everybody ended up with COVID.

Yeah. Well, there we go. Thank you very much, Linda, for coming on the podcast and talking all about it. My pleasure. Thanks, folks. You've reached the end of another episode hope you're still awake appreciate your loyalty sticking through to the end if you fancied doing us a favor here at history here i would be incredibly grateful if you would go and wherever you get these pods give a little rating five stars or it's equivalent a review would be great please head over there and do that it really does make a huge difference it's one of the funny things the algorithm loves to take into account so Please head over there and do that. It really does make a huge difference. It's one of the funny things the algorithm loves to take into account. So please head over there,

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