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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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