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C-SPAN Series: Roe v. Wade and an Abortion Right

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This is the sixth in a series of 10 Politics Daily columns to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the law that has shaped our lives in countless ways. The latest tape in the series, focusing on the Roe v. Wade abortion case in 1973, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Nov. 13. Subsequent tapes will be aired each Saturday evening until Dec. 18.

"Roe against Wade" is how Chief Justice Warren Burger put it when he first called the abortion case up for argument on Dec. 13, 1971. But the Supreme Court's decision in Roe v. Wade, issued 13 months later in January 1973, needs little introduction now. Nearly two generations old, it remains one of the most divisive modern-day decisions issued by the justices-- none of whom, it should be noted, is still alive. The decision has spawned hundreds of legal challenges and millions of words of legal and political analysis. People have fought and died over it. The Supreme Court has had to come back, on several occasions, to consider both the language and the implications of its initial ruling.

Roe v. WadeAnd even the Burger Court had to come back twice to Roe v. Wade. In December 1971, the court sat only seven. Just 10 weeks earlier, aged Justice Hugo Black had died and Justice John Harlan had retired (he would die two weeks after the first Roe argument). President Nixon had not yet nominated their successors -- William Rehnquist and Lewis Powell -- and it is widely presumed that the court called for a second round of oral argument in the case to allow its full complement to determine whether a woman had a constitutional right to seek an abortion. It is also possible, however, that the seven justices who sat through the first argument were willing to give the presenting lawyers a mulligan for their desultory performances.

In any event, the court scheduled a second argument, on Oct. 11, 1972, with Rehnquist and Powell on board. One of the great, unknowable mysteries in American legal history is whether and to what extent the language and rationale behind Roe v. Wade would have been different had Black and Harlan still been a part of the court. What is no mystery, however, is that the lawyering, and the justices, seem far sharper during the October 1972 argument. The two arguments have to be considered together; understanding Roe v. Wade just by listening to just one, especially if it's just the first one, is difficult. Listening to both arguments makes for an intense two hours. But it also provides invaluable context and perspective into the debate that rages even today.

Ultimately, the Supreme Court voted 7-2 in favor of a woman's constitutional right to be free from state or federal restrictions against early-term abortions. Here is the language at the heart of the matter: "the right of personal privacy includes the abortion decision," the court announced, "but . . . this right is not unqualified, and must be considered against important state interests in regulation." The formula did not impress Byron White, the lone Kennedy appointee on the court, who blistered the ruling. In dissent, White wrote: "I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes."

For the majority, Harry Blackmun wrote: "The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care."

In dissent, Rehnquist wrote: "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe [Norma McCorvey]. A transaction resulting in an operation such as this is not 'private' in the ordinary usage of that word."

The battle lines were drawn back then and remain so today. When you listen to Roe v. Wade, Part 1, the first thing you notice is the juxtaposition between the Southern-tinged voice of Sarah Weddington, arguing for her client, and the gravely voices of the justices. In this drama, she serves in that first argument as a tribune for many American women in the late 1960s and early 1970s, struggling with unwanted pregnancies in states that prohibited abortion. Her initial argument that day was long on policy and short on doctrine -- the precise criticism that has followed the court's Roe v. Wade decision since the day it was issued.

The most striking part of the argument from Jay Floyd, the attorney defending Texas' law, was his initial insistence that the case was "moot" -- no longer containing any legal relevance -- because the woman who had initially sued Texas was no longer pregnant. As you listen to this argument, listen to the questions from the justices as carefully as you would to the answers. You can hear them searching for boundaries to the constitutional right they ultimately would acknowledge. You can hear in the answers of the lawyers, meanwhile, some of the same arguments and phrases that have since echoed across the American canvas.

The second argument, made 10 months after the first and occurring one month before the 1972 presidential election, started off the same way: "Roe against Wade," said Chief Justice Burger. But it has a completely different feel. Weddington, for example, is far more clear and concise and forceful in identifying the constitutional underpinnings. She told the justices: "We do not disagree that there is a progression of fetal development. It is the conclusion to be drawn from that upon which we disagree. We are not here to advocate abortion. We do not ask this court to rule that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual."

For Texas, Floyd was replaced for the second argument by state attorney Robert Flowers. Far more eloquent and polished than his predecessor, Flowers, too, effectively pressed the issue before the court. He asked the justices: "Is the life of the unborn fetus paramount over the woman's right to determine whether or not she shall bear a child? This court has been diligent in protecting the rights of the minorities and, gentlemen, we say that this is a minority, a silent minority, the true silent minority. Who is speaking for these children? Where is the counsel for these unborn children, whose life is being taken?"

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John G. Parisi

When you consider passing a law you must think, is this the law I want to pass, does it conflict with the Moral Law? Abortion is immoral.

November 30 2010 at 6:13 PM Report abuse +1 rate up rate down Reply

Lets all get something straight... Never in my life have I ever heard of anyone say "I am pro-abortion". They realize that they do not promote abortion, but rather promote pro-choice, meaning they believe the decision is in the hands of the woman. So you religious people in here claiming to have the answers to our issues, try learning the correct terminology of those who are on the oppisition of your beliefs. Leave your God out of this and try putting in some RATIONAL ideas to help prevent abortions from happening. Like promoting sexual education and condoms.

November 15 2010 at 3:24 PM Report abuse rate up rate down Reply
1 reply to rhino45411's comment

I literally chuckled at your ignorance. They do not say "pro-abortion" because even the pro-abortion side knows that abortion is wrong.

November 27 2010 at 5:55 AM Report abuse +1 rate up rate down Reply

A walnut is not a child. A kitten is not a child. A child is a human in the first few years after birth. Putting two terms together that don't belong together may sound important, like "unborn child" or "living rock", but this results in a nonsensical construct which has no basis in actuality. Those who would deny the miracle of birth seem to think that a conception has a high likelihood of resulting in birth, but it has never worked out that way. Just in the first two weeks after conception, when most women are still unaware of it, over 75% of fetuses miscarry. The medical term for these are spontaneous abortions. Those who would interfere with a woman's right to decide not to go through all the effort to even attempt to bring a fetus to term could better spend their time and wealth in promoting advances in pre-natal care for women who desperately want to give birth.

November 14 2010 at 10:39 PM Report abuse -2 rate up rate down Reply
dc walker

The Consequences of Roe v. Wade 49,551,703 Total Abortions since 1973 Forty nine and a half million babies thrown in the garbage for the many women too stupid to say no. (you just know all these women were not raped, these are just women who had no knowledge of how to protect their bodies BEFORE sex, pitiful)

November 14 2010 at 5:19 PM Report abuse +3 rate up rate down Reply
1 reply to dc walker's comment
John G. Parisi

Cutie, abortion is against the natural law. Also relationships outside of marriage is immoral. Just because the Supreme Court says it is Ok. Natural Law says it is not. If you offend God he can forgive you, if you offend man he can forgive you, but don't offend the natural law, (mother nature) she cannot forgive you. Natural law, if you jump out of a plane in flight without a parachute Natural Law is such that you will get hurt very bad. Gravity is working with Natural Law. Mother Nature

November 30 2010 at 6:22 PM Report abuse rate up rate down Reply

My body my choice. Thank you Sarah Weddington.

November 14 2010 at 1:30 AM Report abuse +5 rate up rate down Reply

mdv916 Abortion is up to the woman, of course; it will always be HER decision: either she will kill her "baby to be" or she will give it life, that is truly, and ultimately HER decision. She can always do it with her own money; not using the money of the taxpayers, especially those taxpayers who are Religious and believe that abortion is taking the life of a person. Here is the paradox: When a woman finds out that she is pregnant, and she wants the baby, she celebrates with everyone else; She even knows the name of the baby already, they call grandparents to be and inform them of the big event to come in nine months. However, when a woman finds out she is pregnant and she DOES NOT WANT the pregnancy, she calls it an embryo or a clot of blood and is willing to destroy it. HOW DO YOU FIGURE THAT??? This issue will never end!!

November 13 2010 at 11:07 PM Report abuse rate up rate down Reply
1 reply to mdv916's comment

You said it! I always thought the same thing.

December 13 2010 at 8:40 PM Report abuse rate up rate down Reply

Most of the statements said have some valid points but i fail to understand why no one seems to think about the act of having sex in the first place and the conseqences of it when you have sex the possibility of pregnantcy exist so if you don't want a pregnantcy don't have sex and this has nothing to do with religion just common sense.

November 13 2010 at 10:26 PM Report abuse -1 rate up rate down Reply
1 reply to KEN's comment

That would be great. But what about couples that do not want kids, ever? I have been married for five years and we do not want children for a large variety of reasons (one reason being my health. I have a serious medical issue which makes it dangerous to carry a child). SO am I just supposed to never have sex with my husband? That makes a ton of sense. Also, I HAVE been pregnant twice, with my husband. Both were accidents and I ended up miscarrying both times after several months of bed rest and being unable to eat. Both times I was using birth control as directed. Two different kinds. I also know a number of people who have gotten pregnant while on birth control. You can scream about responsibility all you want, but the fact is that even when you are careful you can still get pregnant. I cannot find a doctor to sterilize me because they claim I am too young.

November 14 2010 at 12:21 AM Report abuse +3 rate up rate down Reply

This is really a simple issue; if you have a religious argument against abortion, then don't have one. Otherwise and if you are not part of the family that has to make the decision, you are not the woman, it is not your body, and you have nothing to say about it. In all things in this country, keep your religion to yourself.

November 13 2010 at 8:21 PM Report abuse +6 rate up rate down Reply

No woman wants an abortion-but some need to have one. I remember the bad old pre-Roe days when wealthy women had access to abortions but girls or women without the money risked or lost their lives because the procedure was illegal.

November 13 2010 at 5:40 PM Report abuse +7 rate up rate down Reply

I have never met a person who considers himself or herself to be pro abortion. But pro-choice is another matter. Permitting a woman to decide, on her own, whether or not to proceed with a pregnancy is another matter. To those who argue that abortion is murder and who point to their Judeo-Christian beliefs to support their inflexible claim, I would only point out that nowhere in the original Bible does God suggest that a fetus is equivalent to a born live human being. In fact, most interpret Exodus 21:22-23 as stating the reverse; namely that when one takes the life of a born child or adult, that killer, according to God, deserves death, but one who destroys a fetus against the will of a pregnant woman faces a penalty of being fined. It is time for all sides on this question to come together to find ways to reduce as much as possible the need for women to consider abortion as a solution to a problem without depriving women of the right to choose an abortion where such an avenue is felt necessary by a woman.

November 13 2010 at 2:21 PM Report abuse +3 rate up rate down Reply

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