Stuff You Should Know - A Dispassionate Review of Roe v Wade

Episode Date: June 30, 2022

Given the landmark undoing of Roe v Wade, Chuck and Josh lay out all the relevant facts of the 1973 case.See omnystudio.com/listener for privacy information.

Hey, I'm Lance Bass, host of the new iHeart podcast Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. And a different hot sexy teen crush boy bander each week to guide you through life. Tell everybody, yeah, everybody about my new podcast and make sure to listen so we'll never, ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple podcast, or wherever you listen to podcasts. I'm Munga Chauticular and it turns out astrology is way more widespread than any of us want to

believe. You can find in Major League Baseball, International Banks, K-pop groups, even the White House. But just when I thought I had a handle on this subject, something completely unbelievable happened to me and my whole view on astrology changed. Whether you're a skeptic or a believer, give me a few minutes because I think your ideas are about to change too. Listen to Skyline Drive on the iHeart radio app, Apple podcast, or wherever you get your podcasts. Welcome to Stuff You Should Know, a production of iHeart Radio. Hey and welcome to the podcast. I'm Josh and there's Chuck and Jerry's here too, but she's hiding behind us and this is Stuff You Should Know. That's right. I think I have

already titled this episode A Dispassionate Look at Roe v. Wade. Yeah, akin to our episode on Kissing or Roller Coasters. Roller Coasters is pretty appropriate. Yeah, for sure, because it's been a heck of a ride since 1973, huh? That's right. So just so folks know, we're gonna just sort of take a look at the case, the original case itself and this idea was hatched quite a few weeks ago and obviously we kind of sped that process along and we'll talk about that toward the end. Oh, okay, cool. Does that sound good? Yeah, we're doing this episode apropos of nothing at all. We just decided to do it finally, right? That's right. So we're talking about Roe v. Wade. It's a Supreme Court case again from 1973. I think it was published at the very beginning of 1973

and it basically said all you states, which at the time most of the states in the late 60s, early 70s had bans on abortion, some of them almost total. The Supreme Court said all those laws are unconstitutional. We have to re-figure this and it was the culmination of like a whole process, a whole bunch of lawsuits were kind of filed at the same time about the same thing. But it was in no way shape or form less sweeping because it was kind of in the zeitgeist, it's what people were talking about. I think it took both sides of the abortion issue by surprise. It was that kind of sweeping and that much of a complete course reversal for the United States as far as how we approached abortion goes. Right. I think it's a good way to say it. Abortion is

nothing and we'll probably do, I think we've long wanted to do just a full episode on abortion. And so we'll probably work that one in at some point in the near future. But abortion has always been around. It's usually always been regulated in some form or another, usually in what we'll call the third trimester, but we'll get to that stuff later as well or later in this episode. But in the 19th and 20th centuries, there were no federal laws on the books and it was left to states to kind of come up with their own interpretations of what was kind of usually originally based on English common law. And beginning in the 1800s is when a lot of the states started really restricting or outright banning abortion. And I believe in the 1960s,

there were not many states left at all that didn't have bans or restrictions on abortion. Yeah. And the 19th century was kind of a pivotal point for the concept of abortion in the United States for a couple of reasons. There's a historian named Leslie J. Reagan who wrote when abortion was a crime. And she wrote that in 1857, the American Medical Association, which had just been founded, basically said, hey, we need to start a campaign to outlaw abortion in part, historians say, to help wrestle control of women's health away from midwives and to help consolidate basically all aspects of health, including that under doctors. That's one thing that people say led to the rise of abortion laws, anti-abortion laws in the United States.

And then on both sides, there's allegations that some of the earliest proponents for for or against abortion were racially motivated to. On the proponent, the abortion proponent side, they say that some of these earliest laws were basically white Protestant Americans starting to get nervous at all of the immigrants that were coming over and saying, we need to step up the birth rate among white Protestant Americans. And one good way to do that is to outlaw abortion. And then the the anti-abortion side says, no, no, that may or may not be true, but you guys were eugenicists and you actually wanted abortion so that you could control undesirable, meaning non-white populations in the United States. So both sides

are slinging mud all the way back starting in the 19th century and just kind of gets worse from there. Yeah. And of course, you're using that terminology because they didn't have terms like pro-choice and pro-life at that point. Yeah, but I also see it seems to be more academic to call it pro-abortion and anti-abortion because pro-life is such a it's such a loaded term. It's like, oh, you don't like life. If you're a pro-abortion, that doesn't mean that you're against life. So I saw a pro-abortion and anti-abortion kind of settling that dispute. Well, and the both sides have also taken those terms and bent them to their own will in more recent years by saying things like, we're not pro-abortion, we're pro-choice,

and other people saying, we're not anti-choice, we're pro-life, and then other people saying, you're pro-birth, not pro-life. So it sort of leads us into what I like to call the central mess of this whole debate really. And this is as it relates to, you know, legally speaking, there is a larger ethical and moral debate, which, you know, obviously plays a huge part. You can't remove that, but we're here to talk about the legal case, but legally speaking, the all caps huge mess, which has always been around and always will be around, is that nobody, doctors and certainly lawyers and justices and judges have never been able to agree on what life means and when that starts. And that is the central crux and the central mess of it all

that will never get solved and has never been solved because it's unsolvable. There is no definition that everyone agrees on, and even the justices in the original Roe v. Wade case admit to this and say, you know, doctors don't agree on this, we certainly can't decide this. Right. So that created this quagmire and this mini pronged debate over, you know, when is it okay? If ever, is it a crime? When is it a crime? How severe is that crime? What about the mother and her health? What about the health of the fetus? And who decides all this stuff? Yeah, and we've, I mean, despite not knowing and maybe not being able to know when life

actually begins, there have been attempts over the years at abortion regulations that kind of try to take a stab at it. And one of them was quickening. I saw this was an early 19th century one and quickening is a time for that moment when you first see Highlander II and your life changes forever for the better. That's right. No, it's actually when the mother first feels the fetus moving inside of her, they call that quickening. And it's like a super 19th century agrarian, farmy, kind of weird, almost animal term, but that's what they called it. And that's when they defined the beginning of life. And that's when they said, okay, after that, we're regulating abortion after a quickening. That was the first attempt. And that kind of underscores like the attempts

since then, which are basically based on this idea of viability. Like if that fetus was removed from the mom, what chance would it have to survive on its own? And if a doctor, a consensus of doctors say after about this time or at about this state or about this stage in pregnancy, a fetus could probably survive on its own. That has helped kind of define where abortion regulation begins and ends. That's right. So the Supreme Court back then in the 1970s grappled with this. And like I said, they, they flat out said, I mean, here's the quote, when those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus as to when life technically begins. The judiciary at this point and the development of a man's

knowledge is not in a position to speculate as to the answer. So they, you know, at least the Supreme Court has flat out said over the years, like, hey, we can't define this. That would have made it even all the trickier if they weighed in saying, well, here's what we think. Right. So the upshot of all this is we don't know when life begins, but we do know that there are plenty of women out there who don't, who get pregnant and don't want to carry the fetus to full term. They don't want to have that child for one reason or another. So the government decided that it needed to step in and figure out how to balance those two things. They said that the state has an invested interest in protecting the life of the unborn while also protecting the

interests of a woman's right to choose whether she has a child or not. And they basically took a bunch of plates. They put them on the end of poles. They started spinning them. They got on a unicycle and rode out on a high wire over the Grand Canyon. That's right. Yeah. I think that's a good time for a break with that image in people's heads. And we will talk about the case itself and who Ro was and who Wade was right after this. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough or you're at the end of the road. Okay, I see what you're doing. Do you ever think to yourself what advice would Lance Bass and my favorite boy bands give me in this situation?

If you do, you've come to the right place because I'm here to help. This I promise you. Oh God. Seriously, I swear. And you won't have to send an SOS because I'll be there for you. Oh man. And so with my husband, Michael. Um, hey, that's me. Yep. We know that Michael and a different hot sexy teen crush boy band are each week to guide you through life step by step. Oh, not another one. Kids relationships life in general can get messy. You may be thinking this is the story of my life. Just stop now. If so, tell everybody everybody about my new podcast and make sure to listen. So we'll never ever have to say bye bye bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple podcast or wherever you listen to podcasts. I'm Mangesh Atikular and to

be honest, I don't believe in astrology. But from the moment I was born, it's been a part of my life. In India, it's like smoking. You might not smoke, but you're going to get second hand astrology. And lately, I've been wondering if the universe has been trying to tell me to stop running and pay attention. Because maybe there is magic in the stars, if you're willing to look for it. So I rounded up some friends and we dove in and let me tell you, it got weird fast. Tantric curses, major league baseball teams, canceled marriages, K-pop. But just when I thought I had a handle on this sweet and curious show about astrology, my whole world came crashing down. Situation doesn't look good. There is risk to father. And my whole view on astrology, it changed. Whether you're

a skeptic or a believer, I think your ideas are going to change, too. Listen to Skyline Drive and the iHeart radio app, Apple podcast or wherever you get your podcasts. All right. So if you're going to talk about Ro V Wade, you got to talk about Ro and Wade. Ro, and I think, you know, I'm not sure that a lot of people have really studied this. They may know a lot about the case, but I had never studied it to this degree until we did this. And it's just good information to have, especially these days. So Ro was Jane Ro, obviously a made up name, like Jane Doe. And they usually do use Jane Doe. But when there are a bunch of Doe cases on the docket, and especially in this one,

there was another Doe on the docket that had to do with abortion, Doe V Bolton, which we'll talk about as well a little bit. They just change it to Ro. It's that simple. But we do know, and we've known for decades now, who Jane Ro really was. And that was a woman named Norma McCorvey in her 20s in Texas. Yeah. So at the time, Texas had one of the most comprehensive bands on abortion. It was basically, it said, if the fetus is malformed, their words, if the mother's life is in danger, or I think if the, what was the last one? I think if it's the product of a rape, then those are the three different criteria that an abortion could possibly be carried out under, performed under. And that meant that since Norma

McCorvey didn't fit any of those criteria, but still didn't want the kid, that she was looking for an abortion, but couldn't get one in Texas. She also didn't have very much money. And so she couldn't travel out of state, like a lot of more well-to-do women in her situation would have done. So she started to get desperate, because I mean, I didn't say this, Chuck, but she had, already had two kids. This was her third child. She wasn't married to the man who she had gotten pregnant by, and in fact, was a lesbian who was in a committed relationship, I think at the time. Yeah. So yeah, she really did not want to have this kid. Yeah. She had given the other two up for adoption, just so everyone knows. It's not like she had two kids at home. She had given the

other two up. I think one to a family member. I'm not sure about the other one. Definitely adopted the second one. The first one was raised by her parents. Right, which is also adoption. But she's now in a position where she doesn't want to have this third one and was put in touch with an attorney named Linda Coffey and Coffey's partner, Sarah Weddington, two recent law school grads who were looking for a case like this. And this is where, I don't know if you've seen the great Alexander Payne movie, Citizen Ruth, but it's a movie about basically the Roe v. Wade debate with Laura Dern, and it's his first movie, and it's great. And it's a great comedic satire, but... Wait, what? You haven't seen it? No, it's comedic? Oh, yeah. It's Alexander Payne

satire. Is it a musical comedy? No, no, no. It's just a movie. Basically, Laura Dern is the central figure who is a drug addict who is pregnant and gets co-opted by both sides, like they both think they have found the golden case to make their case. And in true Alexander Payne fashion, both sides are played rather satirically, and there are no winners, really. That sounds like this one. That sounds like real life, for sure. Yeah, but that basically is what's happened. So she was, you know, later says that she was kind of co-opted and manipulated, which we'll get into by these two women who are her attorneys. Later in life, she became a born-again Christian, and this is when most of that stuff out about the attorneys manipulating her came out, and after

being pro-choice for her whole life, was pro-life, and then came out later, almost like a deathbed confession, and said, you know what, they paid me. The quote was, it was a mutual thing. I took their money, and this is to be clear, the pro-life side paid her to reverse course is what she says, at least. It was a mutual thing. I took their money, and they put me in front of the cameras, told me what to say, and that's what I said. I did it well because I was a good actress. Yeah, and there's a lot of people who argue that she wasn't ever really pro-choice either, that she was, and Ed helped us with this one, that she was basically more of a mercenary who looked out for herself, and I've read quotes from her that basically say as much, that she didn't

really care about this whole huge case that she was the center of. She just wanted an abortion, and that was the thing that she said that she was manipulated about, that coffee in Weddington basically talked her out of getting an abortion because they were worried that if she didn't, if she didn't have the child by the time the Supreme Court heard this case, she would no longer have standing, because at the time the courts used to rule that if you weren't actively pregnant, if you'd already had the kid, your case would just get thrown out because you weren't pregnant anymore, so who cares? And we'll talk a little more about that in a minute, but that was why they supposedly talked her out of it. They say they definitely didn't talk her out of it,

but at the same time they didn't help her find an abortion, which is what she was after when she contacted them in the first place. Right, so if you're wondering why this happened, she was, I believe, pregnant in 1969, and this case wasn't rendered until 1973. It's because a lot of stuff happened in 1971. They were going to begin hearings in December of that year when both Justices Hugo Black and John Marshall Harlan, the second, retired from poor health. That was in, you know, they died, they both died before the end of 1971, so they were definitely in poor health. The prophecy turned out to be correct. Well, and just crazy timing. I mean, I don't think we've seen, I mean, definitely I haven't seen anything like that since then,

but for two Justices to retire, you know, within days of each other is pretty monumental. And so President Nixon, of course, was looking at chops and appointed William Wynquist. I always have a trouble with that. Wynquist? Wynquist. I know, I just go... Just pretend like the H isn't there. Go all Princess Bride in that moment. And Louis F. Powell Jr., nominated on the same day in October of 1971, came in, and because these Supreme Court cases take so long to get through, they decided basically after a lot of hand wringing that even though they had begun hearing arguments on that case, that they would redo it all with the nine Justices instead of the seven. Yeah. So this was October of 1972, when the case that was eventually decided started in earnest.

So yeah, by this time, Norma McCorvey had already had her child. Her child was two and a half years old and already had been given up for adoption, but they still ruled that she had standing. That essentially it was not moot, right? No, it wasn't. So let's just talk about that real quick. So like I was saying, courts used to rule that if you weren't actually pregnant, you couldn't have standing in a pregnancy-related case, even if you'd filed the initial lawsuit while you were pregnant. You weren't pregnant any longer, so whatever. So the Supreme Court, one of the things they did in row, was establish that pregnancy could not be rendered moot, because as they put it, pregnancy provides a classic justification for a conclusion of

non-mootness, which apparently is a real legal term, because it says it could truly be capable of repetition, yet evading review. Meaning that any time you, like an appellate said, hey, these guys passed me over for lack of standing, because I'm not pregnant anymore. Following the letter of the law, the appellate court would be like, well, we can't hear it, because they're right. You don't have standing anymore. So the Supreme Court finally said, forget that. Pregnancy is a recurring thing. It's a transitory thing, but it's actually a thing, so we need to be able to review it. So they said, yes, if you are a woman who has been pregnant, or even could be pregnant, you have standing in cases like this.

Yeah, because basically they would never hear a case, because it takes way longer than nine months to get this thing up to the court system and review it. Yeah. And I mean, all the initial prosecutor would have to do is file a bunch of motions to delay it for nine months, and then the case gets automatically thrown out. And they even say like, our law should not be that rigid. So that was a big thing that they did in the Roe opinion. For a brief sidetrack into levity. I cannot hear the word moot without thinking of that great Saturday Night Live sketch with Jesse Jackson years ago. The question is moot. Did you ever see that one? No. It was a game show called The Question is Moot, and Jesse

Jackson was the game show host. And basically he would lob out a big question, and anytime someone would go to answer it, he would just interrupt them and say, the question is moot. And like my brother and I said, the question is moot to each other over and over for a period of years. When we were kids, it was pretty great. No, I've never seen that one. All right. So back to Roe v. Wade, funniness, now over. We have to talk about a few of these cases because, you know, we tend to think of Roe v. Wade as this sort of this vacuum single case, but there were many cases that went into kind of shaping what ended up happening. The first of which was probably United States versus Vuich, which was in 1971, when a doctor in D.C., Dr.

Vuich, was performing abortions and said, and was prosecuted for doing so under D.C. law. Because D.C. law said it can only be done if it was necessary for the preservation of the mother's life or health key under the direction of a competent licensed practitioner of medicine. And he said, this is really unconstitutionally vague of what that means. Like what does health of the mother even mean? And a really key thing came out of that, right? Yeah. They said, nope, it's actually not overly vague. It actually makes sense. But they ruled in their opinion. So they ruled against Vuich and in favor of D.C.'s abortion law. But they did say, but we could see how health could include something like a mother's psychological

health or the impact an unwinding child might have on a family. That was new and that was huge. So that was a precedent. And we saw on the freedom of the press episode that sometimes justices will rule against the person, but then we'll establish a foundation for a later case by just mentioning something like that. And that's what they did in that case. Another few cases that had a big impact were the first two were Meyer versus Nebraska in 1923, which was post-World War I. There was a large anti-German sentiment. So they basically enacted laws that said, you can't teach foreign languages in school anymore. Only English is the only language you can teach. And then Pierce versus Society of Sisters, which was based on in 1925, based on an

Oregon case where the state of Oregon said, all kids have to go to public school. You can't go to private school because of the Oregon Compulsory Education Act. So those two factor in and how they affected how the 14th Amendment and the 9th Amendment were framed in terms of Roe. And it gets a little confusing, but... It's a little wonky. Yeah. But the upshot of it is that in 1923 and 1925, the Supreme Court established a precedent by saying, we're going to start interpreting the 9th Amendment, which basically says, even though we've mentioned some stuff in the Constitution and the Bill of Rights specifically, that doesn't mean that other stuff isn't constitutionally protected. There are other rights too that we didn't mention. Figure it out, Supreme Court is

basically what the Framers are saying are the 9th Amendment writers. And then the 14th Amendment grants equal protection under the law with due process. It's called the due process clause. And so they put these two things together and they basically said that the court now has the ability to interpret whether something not mentioned in the Constitution is a constitutionally protected right. That's what those two cases did. And that established a longstanding precedent that gave the Supreme Court that ability. Sure, because the Constitution was written in the 18th and 19th centuries. And obviously there were not things like the internet back then and all kinds of things that we have to decide upon these days. But if you're an originalist, then that's great

because that just means that you can overturn the existence of the internet by outlawing it if you're a Supreme Court justice. That's right. What did Thomas Jefferson think? Griswold versus Connecticut was the other case in 1965. And they used that, I don't think we said that the doctrine was ended up being called substantive due process. Can I take a crack at it? Sure. I would say substantive due process. Substantive. Yeah. You know why? Because that's correct. I knew I was tripping over it. A very obvious thing there. Substantive, substantive due process. Let's just call it SDP. So in 1965 with Griswold versus Connecticut, they used that SDP doctrine to say that Americans also have a right to privacy,

because that's not mentioned in the Constitution either. But like, I mean, this kind of opened up all what we would call like the bedroom cases, which is, hey, we can't legislate what happens in someone's bedroom. That's a right, inherent right to privacy. And that covers, and that ended up covering, according to Scottus, marriage, procreation, contraception, family relationships, child rearing, and education, which was sort of the basis of everything in terms of Roe. Yeah. And Griswold versus Connecticut was not really the first case that tested that. I think Loving versus West Virginia, which the Supreme Court overruled laws that kept interracial couples from marrying. But Griswold versus Connecticut was short on the heels of that, and it was over

birth control rights. But also that led that right to privacy, that substantive due process doctrine kind of led to the creation of, led to everything from the support for gay marriage, overturning laws, that ban gay sex. I mean, all sorts of different stuff. It just basically said there's really private things in people's everyday lives that the government has no business or no say in. So we're just going to leave that alone. But there's a big problem with that, Chuck, and this is a huge problem, at least as far as law goes. The idea that Americans have a right to privacy guaranteed by the constitution is technically illegal fiction. If you're an originalist and you read the constitution, literally, and you say, okay, what would the founders think about this?

What were they thinking at the time they wrote this document? Then they would say they didn't put right to privacy in there, and maybe they do have a right to privacy, Americans do, but it's not in the constitution, meaning that it could be overturned later by a court because it's not constitutionally protected. That is what put Roe v. Wade on shaky ground from the beginning, is that it was argued and decided as a right to privacy case. And again, privacy in this sense is not privacy like you and I would think of, like nobody looking over your shoulder, but more an American's ability and freedom to make decisions about what affects their own personal life without government intervention, that term of privacy. But by basing it on that,

it set Roe v. Wade up on rather shaky legal foundation. And that was actually a pet argument of Ruth Bader Ginsburg. Yeah, I mean, she was on record as saying that she thought it was on shaky ground, and for good reason, and that it should have never been decided on those grounds, and was certainly not saying that she was pro-life, but was on record as saying that it tried to do too much to sweeping too fast, and the way it should have gone about was XYZ. And so who knows what would have happened had she had to cover one of these cases. Well, she was at the time. One of her cases was on its way to the Supreme Court, and it was an abortion case. It just got decided or it was

resolved because the Air Force changed its policy. So she could have been the one who argued the abortion case in front of the Supreme Court. Yeah, I'm really curious how that would have panned out. But the way that she suggested it should have been done is rather basing it on the right to privacy, it should have been based on the Equal Protection Clause of the 14th Amendment. Right. Because her logic was that by forcing women to be pregnant, the government is forcing a condition on women that men are not subject to, and that that is, by definition, gender discrimination, which is protected against by the Equal Protection Clause. So that's in the Constitution. So what Ruth Bader Ginsburg was saying, if you had argued and decided Roe on the basis

of the Equal Protection Clause, it would have been virtually ironclad from day one. And it wasn't. It was on shaky legal ground, and anybody who knew the law knew that it could be challenged. She just had to chip away, erode at it, make all these different arguments, and sooner or later, a change in court would start finding holes in it because they knew the law too. That's right. Great time for another break, I think. So let's come back and talk a little bit more about Roe v. Wade. Yeah? Sure. That's a good idea. I was thinking we'd change to Zeppelin's mid-episode. Led Zeppelin? I would do that, actually.

All right. So man. Oh man. And so my husband, Michael. Um, hey, that's me. Yep, we know that, Michael, and a different hot, sexy teen crush boy band are each week to guide you through life step by step, not another one. Kids, relationships life in general can get messy. You may be thinking, This is the story of my life. Just stop now. If so, tell everybody, yeah, everybody

about my new podcast and make sure to listen so we'll never, ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart Radio App, Apple Podcasts or wherever you listen to podcasts. I'm Mangesh Atikular and to be honest, I don't believe in astrology, but from the moment I was born, it's been a part of my life.

In India, it's like smoking. You might not smoke, but you're gonna get secondhand astrology. And lately, I've been wondering if the universe has been trying to tell me to stop running and pay attention because maybe there is magic in the stars if you're willing to look for it. So I rounded up some friends and we dove in

and let me tell you, it got weird fast. Tantric curses, Major League Baseball teams, canceled marriages, K-pop. But just when I thought I had to handle on this sweet and curious show about astrology, my whole world came crashing down. Situation doesn't look good. There is risk to father.

And my whole view on astrology, it changed. Whether you're a skeptic or a believer, I think your ideas are gonna change too. Listen to Skyline Drive and the iHeart Radio App, Apple Podcasts or wherever you get your podcasts. So Chuck, I think you said that the Roe v. Wade was just one of a number of cases that were making its way to the Supreme Court

at that time, around 1970. I think there was something like 18 cases. And the reason that America went from abortion laws starting in the 19th century to all of a sudden a bunch of them being challenged from different states all at once was because in the 60s, there was so much social change. And one of the big changes is that women

were getting out from under men's thumbs. They were going into the workplace. They were taking birth control pills. They were taking control of their lives in ways that they never had been before. But they saw very clearly and very early on, and long before the 60s, that one of the major paths to self-determination was their ability to choose

whether to terminate a pregnancy or not. And that's why all at once there were at least 18 cases coming to the Supreme Court that sought to overturn abortion bans. That's right. And all of these cases sort of played into it. Some were actually joined two Roe. Some were decided alongside Roe.

One of them was John and Mary Doe. They filed a complaint because the wife, Mary, well, of course, that probably wasn't her real name, right? I don't think so. That would have been a heck of a coincidence. Well, I mean, Mary, they couldn't use Jane anymore either. So... Oh yeah, I guess not.

They went from Jane Doe to Jane Roe to Mary Doe. And maybe there would have been a Mary Roe eventually, who knows? Maybe. But she couldn't continue to take birth control pills for health reasons. And so they argued that the government was infringing on their right

to have sex as a married couple without getting pregnant, basically. James Hallford was a Texas doctor who was arrested for violating the Texas abortion ban. That was tagged on. And then we mentioned Doe versus Bolton earlier. This was a Georgia case, which was really similar to Roe v. Wade.

Georgia just had a bunch of kind of hoops you had to jump through to get a legal abortion. And they decided that at the same time. And we could be talking about Doe v. Bolton more. It just kind of went the other way and we talked Roe v. Wade more. But it was the same kind of deal equally as important. Yeah, the thing is, is I read that Bolton went further,

like way further, that the case was, they were both published on the same day. But then Doe v. Bolton, the Supreme Court essentially said like a woman should be able to get an abortion for basically any reason she wants. That they couldn't see any genuine reason why the government should be able to tell a woman that she couldn't terminate a pregnancy.

That there just wasn't a good reason. And I guess that factor, that argument didn't come up in Roe v. Wade, but it did come up in Doe v. Bolton. And you mentioned that it was a Georgia law and that there were some hoops that that basically, that the Jane Doe in that case was saying, like George is just putting up obstacles, barriers,

just to keep me from getting an abortion. And there were a bunch, your doctor had to agree to it in the first place. They had to go consult with two different doctors who both had to agree that you should have the abortion. Then your doctor had to go get permission from a hospital review board where the abortion would be performed.

If it was because of rape, you had to produce proof of rape, proof of the rape to get an abortion. So you basically had to bring a note from the local police saying, yes, this woman was raped and became pregnant as a result of it. Like that's nuts in and of itself. And then also your family or even a court attorney

could block it, could petition for you not to have the abortion and it would come before a judge to hear whether it should proceed or not. I would say there's a lot of obstacles mixed up in there in that Georgia law. I would agree with you. And that was decided, like I said, alongside Roe. And in the end, well, the end at the time at least,

Supreme Court ruled 7-2 in favor of Jane Roe, January 22nd, 1973. Justice Blackmon wrote the majority opinion, did the same for Doe versus Bolton, also a 7-2 decision. And Byron White and William, oh God. William Rehnquist. Nice work.

Thank you very much. They were the ones who did not join the majority in those cases. And again, it was based on those ninth and 14th amendments and they basically said that an unwanted child can be a serious problem for both the physical and mental health of the mother and the family and even the child and the government forcing families

to take this burden on violated the right to privacy. You wanna hit us with a little bit of the majority opinion? Yeah, they were saying like it could be harmful to the woman's health and you could diagnose that even early in pregnancy. So why should the government block that treatment from a doctor? Or it might force a stressful life onto a woman.

She might suffer psychological harm by it, just from even raising a kid, especially a kid that is unwanted, which is going to have an impact on the child itself and how the child is raised. They basically said like there's a, and also don't forget like the stigma of unwed mothers. Like, are we gonna also force the woman to get married to

because she's an unwed mother? No, we're not gonna do that, but there is a social stigma and they called out like a pretty decent handful of reasons why the government saying, no, you cannot get abortions was unfair to women and unconstitutional as a result. And, you know, a lot of that has been, well, basically proven in what's called the turnaway study,

which for some reason I was calling the takeaway study. The turnaway study is a longitudinal study that was performed. They basically took 1,000 women from three different groups, women who sought an abortion up to three weeks over the limit and were denied. They're called turnaways, which is where the study gets his name.

Women who sought an abortion up to two weeks under the limit and did receive the abortion. And then women who received an abortion in the first trimester, and we'll talk about all the trimester stuff here in a bit too, but what the turnaway study found was a lot of things. Women who were denied abortions were more likely

to experience complications from the end of pregnancy, including death, more likely to stay tethered to abusive partners, very big one, less likely to have aspirational life plans for the coming year. What else? I mean, there's a lot of financial burden too.

Being denied an abortion was linked to a lower credit score, a higher amount of debt, and increasing the number of negative public financial records like bankruptcies and evictions, just from being denied an abortion. And 95% of women reported that having the abortion was the right decision over a five year period after the procedure.

That's a pretty key finding. Yeah, and that turnaway study has been like widely lauded as a gold standard study, because these researchers figured out how to create, you know, an experiment under natural conditions. Like the women involved in the experiment in the study, the only, essentially the only thing that differentiated them was if they had gone to the abortion clinic

just before the cutoff or just after the cutoff. That was it. Like there was a follow-up study. Except the first trimester group. Okay, so, but those, the first two groups, like that was the only difference. There was a follow-up study that looked at the methodology that they used

and found that like analyzing the different participants' credit scores showed that they were like, they virtually had the same credit scores. They were that similar economically, education-wise. And that when, where they diverged was when they were either granted an abortion or turned away for an abortion.

And the turned away for abortion groups, life like started to go downhill. The receiving an abortion groups suffered a slight dip in mental health that recovered, they recovered from. And then apparently over five years, the thing that they most frequently expressed as an emotion or thought about it was relief

for having been able to get the abortion that they'd wanted. So that's a turn away study. Like I encourage people to go check this out and read more about it. Back to Roe v. Wade, one of the crucial parts of the decision was this legal term, strict scrutiny. And that means that if you have a,

if it is a right that you're deciding upon that's guaranteed by the constitution, then any restrictions on any laws that you're gonna put down or put forth have to be narrowly tailored to only limit the right in that case where the government thinks like we should get involved here.

So that's why like the Second Amendment is in the constitution that you have the right to keep and bear arms. So any restrictions placed, and this is why it's so hard to get anything passed, any on gun legislation, any restrictions on that is protected by the Second Amendment.

So it has to be narrowly tailored to serve just that case. Yeah, because the government has an inherent interest in protecting human life, but they also have to protect the Second Amendment's guarantee to bear arms, right? To have a gun. So they have to figure out through their laws

how to say like prevent mass shootings without infringing on people's right to have a gun. That's why this is so hard and so pernicious like you were saying. That's just gun rights. I mean, the abortion issue makes gun rights seem like a walk in the park. Yeah, absolutely.

Because in the case of Roe v. Wade, SCOTUS determined that laws restricting abortion had to be narrowly tailored to that state's compelling interest to protect the health of the mother. And this is where we get back kind of full circle to that central mess with this quote. Some argue that the woman's right is absolute

and that she is entitled to terminate her pregnancy at whatever time and whatever way and for whatever reason she alone chooses. We, sorry, with this, we do not agree. And in that quote kind of sprang up this central mess again, which is how do we define life and how do we define where life starts? Again, everyone has their own opinion.

Some people say from the second two cells are joined together then that's a potential human life. Other people say that is not the case. So they had to come up with what ended up being a pretty initially arbitrary system of deciding this. So they invented trimesters, which is months one through three, four through six and seven, eight and nine

during a pregnancy. And in terms of Roe v. Wade, the first trimester, you could get an abortion and it was legal. And second trimester, there were restrictions if your state wanted to have them. And in the third trimester, you could ban an abortion outright if you wanted to in your state.

And the quote here is that's the point where a fetus is quote, presumably has the capability of meaningful life outside the mother's womb. And what I thought when I was hearing this was, I'm surprised that hasn't been challenged because that would be the stickiest of all cases if someone really wanted to throw a wrench in this whole idea is for a woman to say,

I've just entered my seventh month and I wanna have a C-section today because you're telling me that I have a viable human being growing inside of me at this point. And if you don't agree with me, let's take it to court and let them decide. That person would be the most reviled person in America I think for trying that.

But yeah, that would definitely be a messy test case for sure. But the problem with this trimester framework, like we said earlier with quickening with the idea of viability outside of the womb, like science doesn't know, we just don't have that information right now. And so the whole idea is kind of arbitrary because science is actually advanced by leaps and bounds

and its ability to keep a baby alive way earlier than the third trimester, which led abortion, anti-abortion groups to say, well, wait a minute, if we can do that and it's before the third trimester, we should be banning abortion earlier than just the third trimester. And that led to a bunch of challenges against Roe v. Wade

because again, like we said, it's widely considered to have been based on shaky legal foundations. So there've been challenges of plenty. But the thing is, is up to this point, the Supreme Court has always overruled those challenges to a large degree or at the very least in every single case upheld Roe v. Wade

and it's banned on full bans on abortion. That's right. And Planned Parenthood versus Casey is a shining example of that. This was the 1992 case where the Supreme Court upheld almost all of the 1982 Pennsylvania law that was kind of like the Georgia law in Doe v. Bolton where they had a series of obstacles.

I believe in this case, it was spousal notice, parental consent for minors, and a 24 hour waiting period. So in this case, there was not, it was decided on plurality. I can't believe I can say that word. There was no majority that agreed to one specific verdict in this case.

That's a plurality, now let's see, there I go. That jinxed myself. That's what that means. Dissentive plurality of inquests. Oh my gosh. So in this kind of case, you don't have like a majority opinion and a dissenting opinion.

You have a bunch of opinion or several opinions that are written with different parts agreeing with different elements basically. Yeah, and that's what happened. Apparently four of the judges wanted to overrule Roe v. Wade or overturn Roe v. Wade entirely in this case. Two wanted to uphold it entirely

and just throw the Pennsylvania law out. And then three of them, Sandra Day O'Connor, David Souter and Anthony Kennedy, I think all of them were appointed by conservative presidents, basically took the middle ground and they said, you know, we're just gonna say the only part of that Pennsylvania law

that should be struck down as spousal notification because that is a onerous, undue burden. But we're gonna tinker with the law a little bit. And one of the things that they did, they got rid of the trimester framework and they instead said the viability of the fetus as determined by a doctor should be when abortion restrictions can begin.

So you take, I mean, as unscientific as the trimester system was, Chuck, at the very least it provided objective guidance for women and abortion providers. They threw that out with Casey in 1992 and replaced it with viability of a fetus. Right, and they also downgraded that strict scrutiny that we talked about, that standard

that came along with Roe of undue burden. So a law could be unconstitutional if it placed a substantial, quote, substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus, end quote. And the long and short of what all of this did was it made it easier to put more restrictions on abortion without overturning Roe.

Yeah, because the Supreme Court didn't say, and here's what an undue burden is, they didn't at all, which means that it's open to state legislatures to start passing more and more restrictive abortion laws to test where that boundary is. And then that's how we got here. Casey opened the door for that to basically say,

let's find out what is an undue burden. Let's see what you got state legislatures. And they started tripping over themselves to come up with the most restrictive abortion laws that they could and get them into the Supreme Court in the hopes of eventually reaching a court that would say, you know what, let's just forget about this whole thing.

We don't think that Roe v. Wade's should stand at all. And that's exactly what happened last week. Of course, it was leaked earlier in the year, but officially the Dobs case was rendered last week. The Supreme Court overturned Roe v. Wade and said it's now up to the states. Many states had trigger laws in effect. Many more had laws that are soon to follow.

And this is just the beginning of what is to come, which is a lot of uncertainty, including people like Mike Pence saying, even though we have long said it should be states, right, what I really think we should do is make a federal ban. People on the pro-choice side are obviously very upset for a lot of reasons, but mainly because of a few specific things,

first of which is Brett Kavanaugh, Justice's Kavanaugh and Neil Gorsuch, in particular led people to believe under oath during their confirmation hearings that this was settled law in quote, precedent upon precedent. People like Alexandria Ocasio-Cortez have said, just in the last couple of days, like, hey, that's impeachable, they were under oath.

But when you look at their quotes, they didn't say they would not overturn Roe. They use that very slippery confirmation language. It's misleading under oath, but that is not going to end up being an impeachable offense. I have the quotes, but you can read them. There are all kinds of articles out there. Yeah, when you read them, you're like, nope, they didn't.

And that was a huge failure on the Democratic senators who couldn't bring themselves to apparently ask them directly, would you overturn Roe v. Wade? They wouldn't answer, though. They asked Amy Coney Barrett, they asked Clarence Thomas, and they literally didn't answer. So the other thing that the pro-choice side

is pretty upset about is the idea that five of these justices were nominated by presidents who lost the popular vote. So we're in a situation where five of the nine justices sitting on the Supreme Court were decided by a minority of Americans voting, and people like Elizabeth Warren are calling for the end of the electoral college as a result.

Man, wouldn't that be a gift? The third thing that is upsetting to the pro-choice side are how two of these justices were confirmed with Mitch McConnell not allowing the Obama nomination, Merrick Garland, to even go before committee, because it was eight months before an election in an election year, whereas Amy Coney Barrett was confirmed in the 35 days leading up to the election,

the shortest gap between a confirmation and election in U.S. history. And the third thing, or is that the fourth thing? It's the fourth. Maybe the fourth is that people like Elizabeth Warren are rightfully bringing up the notion that the Constitution was written at a time when women not only had no vote, but they had no voice, and it was written entirely by men

in the 18th and 19th centuries, white men who they believe that the Constitution is a living document and those things need to be taken into account, like had women been able to have their hand in the Constitution, things might have been written differently and we're in a different world now where women do have a voice and they do have a vote.

But this is a decades-long victory for conservatives that started long, long ago. In a galaxy far, far away. In a galaxy far, far away. Like when Trump had his list, he doesn't come up with a list, he gets handed a list. And this list of justices, potential justices, were handpicked by the Federalist Society,

an organization of conservative lawyers run by, or at least the list was basically tailored by a man named Leonard Leo. And I think there are people on the left that say these justices were handpicked because they absolutely knew that they would overturn Roe. And that was always a part of the plan and that they were coached to be as vague as possible

in the confirmation hearings to what people on the left say would fool people like Susan Collins and what's his name, Manchin. Manchin? Yeah, Manchin, Rehnquist. So that's what has really upset people on the pro-choice side, those specific things. And that just, that has nothing even to do

with the ethics and morals of abortion even. Well, plus also there's some other things that people are really, really concerned about. And one is that the Supreme Court just basically said that Roe v. Wade was based on that right to privacy, which is they decided was a legal fiction created by activist justices back in the 60s and that they overturned that.

And since not just Roe v. Wade, but also gay marriage, the ability for a married couple to access birth control, gay sex, a whole bunch of different privacy issues are based on that same legal fiction, then all of those things are up for grabs too. So a lot of people are worried that this Supreme Court will overturn gay marriage. And all of a sudden, your marriage will be null and void

if you're a gay couple who was married in the United States. That's incredibly scary as well, piled on top of a ban on abortion, essentially is what's happening now, or at least in some states. And then like you said, Mike Pence was calling for a federal ban. And that's another thing that are making people

on the pro-choice side really worried that essentially personhood will be granted to fetuses, that some state somewhere, I would guess probably in the Midwest or the South would come up with an abortion ban, or even a resolution that they adopt as a law that says life begins at conception in the state of Oklahoma, right?

And that somebody would sue them and it would go to the Supreme Court and the Supreme Court would say, you know what, Oklahoma's right. Fetuses are people and they deserve all the constitutional protections under the law. If so, facto, you could not abort any fetus anywhere at any time.

There is now a federal ban on abortion entirely. That's something that's scaring proponents of choice as well. Yeah, and you know, just the kind of worms that's been opened up now as far as enforcement and are you gonna send police after people? Are you gonna send police across state lines if people are able to get the funds to travel across state lines to a state

that still allows abortion? It's just the beginning of a lot of uncertainty for a lot of people. Well, plus also, if you are a pro-life or you're anti-abortion and you have a problem with the decision of Roe and say that it was judicial activism, you have to admit that what just happened in Dobbs

was judicial activism, it just went the opposite way. And there's a lesson in there. Judicial activism is bad on either way. We're supposed to leave it to Congress to create laws that say this is the law, not the Supreme Court to come up with laws on its own and then overturn those same very controversial laws 50 years later.

That's not what's supposed to happen. It completely erodes any trust in the Supreme Court and its ability to be like the final arbiters of what's right and what's wrong in the United States. And that's what's going on right now. But, you know, that's just because the shoe has changed the other foot. To the other foot, there were plenty of people

who lived from 1973 onward with that same view of that Supreme Court and are perfectly happy with this Supreme Court. And that's the big problem, not just with this issue, but with America, I feel like today is it's just all tit for tat, you know? Yeah, maybe there should never be lifetime appointments. Oh, definitely not.

That's definitely not. That is, I mean, if there's one thing that's just a no-brainer as far as American law is concerned, lifetime appointments to the panel that decides ultimately what's law and what's not in the United States is just a bad idea. Yeah, let's have term limits too while we're at it. Too much power, man.

It's a lot of power. I don't think people are supposed to have that much power for that long. It creates a really screwed up system. Yeah, it definitely does. All right, since I said screwed up system. Wait a minute, wait a minute, that's my part. I was always going to say it, though.

Anyway, since Chuck said screwed up system, it's time for listener mail. Chime. I'm going to end this on a lighter note. That might bring a smile to people's faces. Hey guys, a few years ago on one of your numerous and wonderful tangents, use the phrase, don't yuck someone's yum.

I love how simple this was and summed up in ethos of being kind to people, no matter their beliefs and opinions. Fast forward to now. And I've used this simple saying when bringing up my two daughters who have just turned five and three as a way of teaching them manners and kindness.

Yesterday I had a message from my three-year-old's childminder saying that my daughter had told another child not to yuck someone's yum and how great that was. She liked it so much, she's going to make it a saying that she used when teaching the children that she looks after going forward. It was then passed on to the parents of the other kids

who all reported back that they would also be using it and passing it on. Nice. And by the way, Matt, we didn't invent that. I believe that came from a listener, right? Yep, definitely. So hats off to the anonymous listener who came out. That's right.

Some people might wish you stay on topic more, but I'm here to tell you that even your off-the-cuff comments can educate others and you can be safe in the knowledge that you've helped instill good manners and a growing number of children in Berkshire, England. Oh, wow, I wasn't expecting that. Oh, Berkshire even gave me a pronunciation key.

So you said shear, right? Sheer, like here. Yeah, but I said berk, not bark. Berkshire. So it's Berkshire, but it's spelled Berkshire. Oh, okay. I got my drift. Yeah, yeah.

That's why I'm gonna start calling upstate New York now. Berkshires. What? Let's go weekend in the Berkshires, everyone. Let's do it. That's from Matt Walford. Thank you, Matt. That was very kind of you to let us know.

We're glad that we're enacting really positive change in your kids' schools. And that was kind, so thanks. Keep it up. If you wanna be like Matt and get in touch with us and tell us something kind that we helped you, we love to hear that stuff. You can send us an email to StuffPodcast

at iHeartRadio.com. Stuff You Should Know is a production of iHeart Radio. For more podcasts on my heart radio, visit the iHeartRadio app. Apple podcasts are wherever you listen to your favorite shows. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass.

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