When you look at the great American monuments,
like the Washington Monument or the Golden Gate
Bridge, we just see this finished. solid structure.
It just looks inevitable, you know, like it's
permanent. Oh, totally. You're just appreciating
the final product. You don't see the temporary
scaffolding or the intense debates over the blueprints
or the compromises they had to make on the steel
just to actually get it built. Yeah, you just
see the bridge. But then if you look at American
constitutional law, suddenly that solid monument
starts to look a lot more like a like a living,
breathing, highly contested construction site.
It is the absolute definition of a legal and
historical work in progress. Right. Well, welcome
to today's deep dive. We are digging into a massive,
really fascinating stack of source material today
for you. You really are. We're going to offer
a comprehensive, historical, and legal breakdown
of one of the most famous... and definitely one
of the most debated Supreme Court cases in American
history. Roe v. Exactly. And look, I want to
be super clear right up front. Because this source
material contains highly politically charged
content spanning both left -wing and right -wing
viewpoints, our goal today is never to take a
side. Absolutely not. We are leaving the politics
entirely at the door. Our only mission today
for you The learner who just wants to understand
the actual mechanics of our history without getting
bogged down in rhetoric is to map the architectural
blueprints. Right. We're going to impartially
report on the facts, the legal arguments, the
societal reactions exactly as they appear in
the original source material. Yeah, we aren't
endorsing any of the viewpoints we discuss. We're
just acting as your guides to unpack how this
monumental ruling was built and, well, ultimately
how it was taken down. And honestly, mapping
that architecture is just an incredible exercise
because because what makes this legal history
so fascinating isn't just the 1973 ruling itself.
It's the 150 -year historical arc that precedes
it and the 50 -year legal pug of war that followed
it. So to really grasp the mechanics of that
1973 ruling, we first have to understand the
surprising reality of abortion laws before it
even happened. Yeah, the history here goes against
a lot of our modern assumptions. It really does.
If you go back to... the early 19th century in
the US, abortion was actually a fairly common.
private practice. Under English common law, which
we adopted, it was legally permissible before
a concept called quickening. Quickening, right.
That's that moment in a pregnancy when a woman
first feels fetal movement. Exactly. And that
is a major shift from how we tend to view the
historical timeline today. It wasn't actually
until around the 1840s that the legal landscape
began to drastically change. And what drove that
change, this is wild, wasn't initially a moral
crusade. It was largely a profession. It was
driven by the medical profession. Wait, really?
The doctors were the ones pushing for the bans?
Oh, wait, sorry. I'm stealing your thunder. Go
ahead. No, no, you're right. Absolutely. At the
time, men with formal medical degrees were trying
to legitimize and professionalize their relatively
new field. But they were competing with unlicensed
practitioners, particularly female midwives who
frequently performed these procedures. And the
midwives were highly trusted. and well -paid
for this work. Exactly. So by lobbying state
legislatures to criminalize the practice, this
newly professionalized, male -dominated medical
establishment could effectively eliminate their
unlicensed competition. Wow. So it was, at least
in part, an economic monopoly play. Yeah. That
is wild. And it worked, right? Because by 1900,
every single state had outlawed the procedure.
Every single one. So fast forward to the late
1960s. The story of Roe formally begins with
two young attorneys in Texas. Sarah Weddington,
and Linda Coffey. And they were looking to challenge
these century -old state laws, but you can't
just walk into a court and say, I think this
law is unconstitutional. Right, you need a plaintiff.
You need what's called a test case. Exactly.
And eventually they found a 21 -year -old woman
named Norma McCorvey, who would be given the
legal pseudonym Jane Roe. Jane Roe. And McCorvey's
demographics made her the exact plaintiff these
lawyers were looking for. I mean, she was white,
young, lower class, and pregnant with her third
child. It's almost exactly like a casting director
looking for the perfect lead in a movie, you
know? Right. The lawyers needed someone whose
circumstances would elicit sympathy from a judge.
someone who clearly demonstrated the harsh real
-world impact of these bans. And they even strategically
filed the case in Dallas. Oh, they didn't do
that by accident. No, not at all. They knew exactly
which judges were sitting in that district. They
basically engineered the filing to maximize their
chances of drawing a sympathetic three -judge
panel. Wow. But what's fascinating here is the
sheer irony of Norma McCorvey's actual lived
experience in all of this. What's fascinating
here is, well, yeah, despite being the face of
this monumental history -altering legal battle,
McCorvey never actually attended the Supreme
Court arguments. Never even went. She never even
got the abortion she was originally seeking.
Because the legal system is so slow. Right. By
the time the slow machinery of the courts actually
moved forward, she had already given birth to
a daughter, who was subsequently adopted by a
couple in Texas. It really highlights the massive
disconnect between the abstract grind of the
legal system and the urgent reality of the actual
human beings caught up in it. It really does.
But knowing how the players were assembled, we
can now look at how the Supreme Court built the
actual legal framework of the decision. And this
was far from a simple process. First of all,
the case bypassed the Federal Appeals Court entirely.
Right. It went straight to the Supreme Court.
How does that happen? Well, that was due to a
very specific federal statute. It authorized
a direct appeal to the Supreme Court whenever
a civil injunction is decided by a three -judged
district panel. Okay, so it lands on the desk
of the High Court. And Chief Justice Warren Burger
assigns the task of drafting the majority opinion
to Justice Harry Blackmun. And Blackmun really
struggled with it. I mean, he originally wanted
to avoid declaring any kind of sweeping new constitutional
right. Right. He focused his early drafts on
the idea of vagueness, essentially arguing that
the Texas law was written so poorly and was so
confusing that a doctor couldn't reasonably figure
out when an abortion was legally permitted to
save a mother's life. Which is a classic. judicial
minimalist approach. You know, strike the law
down on a technicality without making grand constitutional
pronouncements. But the other liberal justices...
pushed back hard on that. Yeah. They told Blackman
that vagueness just wasn't enough. He needed
to ground this in the concept of privacy. So
Blackman, who used to be resident counsel at
the Mayo Clinic in Minnesota, literally goes
back to the clinic's library. He spends a whole
week there. A week researching the history of
medical procedures, heavily influenced by the
historical research his clerks and abortion rights
advocates had compiled. Right. So he abandons
the vagueness argument, and he pivots to the
14th Amendment. Specifically, the due process
clause. Now, just reading the text, the due process
clause basically says the government can't take
away your life, liberty, or property without
fair legal procedures. Yeah, it's about fair
trials. Right. So how do you get medical privacy
out of that? Well, that requires a legal concept
called substantive due process. OK. Over the
years, the Supreme Court had interpreted the
word liberty in the 14th Amendment to include
certain implicit fundamental rights, rights that
aren't specifically written down in the Constitution.
Things like the right to marry. Exactly. Or the
right to direct the upbringing of your children.
The court determined that this unwritten right
to privacy was broad enough to encompass a woman's
decision to terminate a pregnancy. OK, let's
unpack this. Because it wasn't an absolute right,
the state also has interests. Precisely. The
court had to balance a woman's right to privacy
against the state's interest in regulating medicine
and protecting potential life. So Black men created
the famous trimester framework. Right. In the
first trimester, the state could place virtually
no restrictions on the choice. In the second
trimester, the state's interest in maternal health
kicks in. So they could regulate the procedure,
but only in ways reasonably related to the mother's
health. And then the third trimester. In the
third trimester, At the point of fetal viability,
meaning the fetus could survive outside the womb,
the state's interest in potential life becomes
compelling enough that they could outright ban
abortion, except to save the mother's life. OK,
let's unpack this. Because if you were reading
the 14th Amendment, it doesn't mention abortion.
It doesn't mention trimesters. And it definitely
doesn't mention viability. No, it doesn't. How
did Justice Blackmun legally justify pulling
a strict 12 -week medical timetable out of the
abstract concept of constitutional liberty. I
mean, it sounds more like he was writing a hospital
policy manual than a constitutional ruling. That
is exactly the critique many legal scholars would
later make. Even those who supported abortion
access, it was highly prescriptive. Extremely.
But honestly, just to get the case heard so he
could build that framework, the court first had
to rely on a fascinating procedural workaround.
Oh, right. The mootness doctrine exception. Because
normally, federal courts only hear live controversies.
Like if you sue because you want to build a fence
and then you sell the house, the court throws
the case out because it's moot. There's nothing
to decide anymore. Right. And since Norman McCorvey
had already given birth, her case was technically
moot. Exactly. But the court recognized a special
exception for issues that are capable of repetition,
yet evading a review. Because a normal human
pregnancy is vastly shorter than the multi -year
federal appellate process. Exactly. If the Supreme
Court dismissed every pregnancy -related case
for mootness once the woman gave birth, the legal
issue would never, ever be resolved. So they
had to create a... procedural bridge just to
get to the point where they could build that
medical legal framework. Exactly. But because
that massive legal foundation was built on this
highly specific medical framework, rather than
explicit constitutional text, it immediately
drew fire. And looking at the history, this fire
didn't just come from conservative opponents.
No, it came from all sides. Let's start with
the immediate dissents on the court, specifically
from Justices Byron White and William Rehnquist.
Right. went straight for the historical argument.
Remember how we said the 14th Amendment's protection
of liberty only covers rights deeply rooted in
history? Yeah. Well, Rehnquist pointed out that
by the time the 14th Amendment was adopted in
1868, there were at least 36 state or territorial
laws limiting abortion. Wow. So his argument
was, how can you claim the drafters of the 14th
Amendment implicitly intended to protect a right
that they were actively outlawing at the exact
same time? And Justice White famously called
majority's decision and exercise in raw judicial
power. He did. But then you look at the liberal
critiques and they're incredibly revealing too.
Oh absolutely. Like future Supreme Court Justice
Ruth Bader Ginsburg, an absolute champion of
women's rights, was highly critical of the legal
architecture of Roe. She felt the decision ventured
too far, too fast, and that its legal reasoning
was fundamentally flawed. Right. Because Gimsburg
pointed out that since Blackman relied so heavily
on his medical background, his opinion actually
centered on a doctor's right to practice medicine
freely. Yes. Rather than centering on a woman's
right to equal protection under the law, she
believed the foundation should have been equality,
not medical privacy. And later on, reproductive
justice advocates argued that the ruling was
fundamentally limited because privacy is a negative
right. Right. It just means the government has
to keep its hands off you. It doesn't guarantee
you any actual help. Exactly. If Roe had been
based on an affirmative human right, it would
have required the state to actually ensure access
to the procedure, regardless of your income or
whether you lived in a rural zip code with no
hospitals. So it left a lot of people who supported
the outcome very anxious about the method used
to achieve it. Highly anxious. Here's where it
gets really interesting. It's like the Supreme
Court built a massive legal skyscraper, right?
But instead of anchoring it to solid bedrock,
they built a foundation on sand. That is a very
accurate way to look at it. Even the people who
desperately wanted that skyscraper were terrified
that the privacy foundation was legally flimsy
and could easily collapse. Because Rehnquist
historical dissent provided the exact blueprint
that conservative legal scholars would use to
chip away at that foundation for the next five
decades. They systematically targeted the premise
that this right was deeply rooted in the nation's
history. Which brings us to how that foundation
eventually cracked. because you have a vulnerable
legal structure combined with rapidly advancing
medical technology. Oh, the medical tech. Yeah.
And that combination forced the Supreme Court
to constantly rewrite its own rules. Right. So
the first major structural earthquake hit in
1992 with a case called Planned Parenthood v.
Casey. Now, in Casey, a divided court narrowly
saved the central holding of Roe that the right
to an abortion exists, but they completely scrapped
Justice Blackmun's entire trimester framework.
They just threw the whole 12 -week timetable
out. They had to. They replaced the trimester
system with a simple viability line. Because
medical science had advanced so rapidly. Exactly.
A fetus could now potentially survive outside
the womb at 23 or 24 weeks, rather than the 28
weeks that was understood back in 1973. Wait,
if the entire engine of the original 1973 Roe
decision was the trimester framework, and Casey
threw that framework in the trash in 1992, didn't
the court basically write a brand new law while
pretending to just uphold the old one? If we
connect this to the bigger picture, you've hit
on the exact structural weakness we were just
talking about. The legal right was intimately
tied to a moving scientific target. Because the
law was tethered to viability as incubators and
neonatal care improved, the legal line literally
had to shift earlier and earlier into the pregnancy.
The law was inherently destabilized by scientific
advancement. And Casey didn't just change the
timeline, it changed the legal test entirely.
Yes. Under Rowe, regulations on abortion faced
strict scrutiny, which is the highest level of
judicial review. Basically meaning the government
almost never wins. Right. They have to prove
a compelling interest. But Casey abandoned that.
They introduced the Undo Burden Test. Which meant
states could now heavily regulate the procedure.
Exactly. Instituting mandatory waiting periods,
parental consent laws, strict clinic requirements,
just as long as those rules didn't put a substantial
obstacle in the path of the woman. So states
were essentially given a green light to see exactly
how many obstacles they could pile up before
a judge called it substantial. And as that legal
foundation shifted, States began finding incredibly
creative workarounds. Like the 2021 Texas Heartbeat
Act. Yeah, it was a master class in exploiting
procedural loopholes. Texas created an abortion
ban, but they explicitly forbid any state official
from enforcing it. Which sounds crazy. Right.
Instead, they outsourced the enforcement to private
citizens via civil lawsuits. Anyone could sue
someone who aided an abortion and win a $10 ,000
bounty. It's brilliant in a highly controversial
way. Because you can't sue a state official to
block a law if that official has zero power to
enforce it. Exactly. Abortion providers had literally
no one to take to federal court to get an injunction.
It was a complete end run around the federal
judiciary. And all of this erosion ultimately
culminated in 2022 with Dobbs v. Jackson Women's
Health Organization. The Supreme Court officially
overturned both Roe and Casey in a 5 -4 vote.
Justice Samuel Alito wrote the majority opinion
and he leaned heavily on the exact logic Rehnquist
used in his 1973 dissent. Right. Alito argued
that the right to an abortion was entirely unknown
in American law up until the latter part of the
20th century and therefore could not be implicitly
protected by the 14th Amendment. But you can't
officially declare a right entirely unknown in
American law without fundamentally fracturing
the massive political alliances that relied on
it. Oh the fallout was massive. The moment Dobbs
came down, the sociological fallout was immediate.
And when you look at the source material detailing
the decades leading up to Dobbs, you realize
how much this single legal battle fundamentally
rewired American demographics. And party politics
too. It is so easy to forget how different the
political landscape was before 1973. Oh, totally
different. If you look at the 1960s and early
70s, opposition to abortion was heavily concentrated
on the political left and among Catholic Democrats.
Meanwhile, many Republicans and evangelical Protestants
actually supported legalization. They did. They
viewed it through the lens of individual liberty,
religious freedom, keeping the government out
of private family matters. Roe radically flipped.
those political coalitions. It's almost unimaginable
to someone looking at modern politics, but the
parties essentially traded sides over the next
few decades. And the public opinion data during
that 50 year span reveals deep, deep contradictions.
Vast majorities of Americans consistently told
pollsters they opposed overturning Roe v. Wade.
Right. But simultaneously, those exact same majorities
supported strict second trimester bans, which
Roe prohibited. So what does this all mean? I
look at American public opinion on this like
a mosaic. From far away, people claim to be solidly
pro -choice or pro -life. But when you look closely
at the individual tiles, the data is full of
massive contradictions. People wanted the symbolic
umbrella of Roe upheld while actively supporting
laws that Roe technically prohibited. It totally
defies the simple binary we see on the news.
And the sociological impacts went far beyond
polling. They touched deep structural aspects
of American society. Like the Donna Hugh Leavitt
hypothesis. Yes, highly controversial. But two
researchers argued that the legalization of abortion
in the 1970s directly contributed to the massive
unexpected drop in violent crime rates in the
1990s. Their mechanism was that fewer children
were being born into severe poverty or highly
challenging socioeconomic environments. So two
decades later, there was a smaller demographic
cohort statistically at risk for criminal behavior.
Though it is crucial to point out that theory
caused an absolute uproar. Oh, yeah. Many economists
heavily push back. They pointed out that crime
dropped globally, even in countries where abortion
wasn't legalized. Right. They argued the drop
had more to do with the end of the crack epidemic
and better policing. But just the fact that a
Supreme Court ruling on medical privacy could
even theoretically alter national crime rates
two decades later shows you the scale of its
impact. Absolutely. There are also documented
shifts in the labor market. Older women, who
historically might have had to drop out of the
workforce to care for unexpected grandchildren,
were suddenly able to continue their careers,
changing the trajectory of women's economic power.
This raises an important question about how political
alliances are formed and broken. Because one
of the most fascinating forgotten details in
our historical material is the role of the global
population control movement. Back in the 1960s,
population control advocates were massive champions
of abortion rights. Right, they viewed it as
a necessary tool for demographic management to
solve projected global food and resource crises.
But that alliance fractured almost immediately.
Civil rights leaders and black power activists,
including prominent figures like H. Rat Brown,
push back fiercely against the population control
narrative. They looked at the history of eugenics
and feared that abortion access, when championed
by wealthy institutions to control population
growth, was essentially a tool for racial genocide
aimed at minority communities. Exactly. That
intense tension forced the mainstream abortion
rights movement to quickly distance itself from
any talk of population control. They had to completely
rebrand the movement around the concept of individual
private choice, which is the rhetoric we still
use. today. It is just a staggering history.
It really is. To quickly recap the journey we've
taken today for you. We've traced this single
issue from the common law of the 19th century
midwives through the strategic engineering of
a test case in Dallas. We've walked through the
back rooms of the Supreme Court where Justice
Blackmun crafted a precarious medical legal framework
based on the 14th Amendment. We examined the
early dissents that provided the exact blueprint
for the ruling's demise. We followed the timeline
through the moving target of fetal viability.
all the way to the 2022 dogs decision. We've
stripped away the modern political rhetoric to
look purely at the historical, legal, and sociological
machinery of this monumental case. And as we
close, there is one final, truly fascinating
nugget from the source material for you to ponder
on your own. The legal framework of Roe was so
powerful and so deeply embedded in the definitions
of medical science that it spawned entirely new,
highly controversial categories of civil lawsuits.
I saw this in the notes. You're talking about
the wrongful birth and wrongful life claims.
Yes. The legal interaction between Roe, the changing
interpretations of the 14th Amendment, and advancing
medical technology allowed for unprecedented
legal theories. How so? Well, in some jurisdictions,
the shifting The constitutional definition of
fetal viability literally allowed parents, and
in rare cases the children themselves, to sue
a doctor over the very fact that they were born.
Unbelievable. These usually involve cases with
severe disabilities that weren't diagnosed in
utero. The parents argued that if they had been
properly informed, they would have exercised
their right to terminate. Think about the profound
gravity of that. We started this deep dive by
comparing constitutional law to a living, breathing
construction site. Right. But when you look at
the reality of a wrongful life's lawsuit, You
realize that the scaffolding the Supreme Court
builds doesn't just hold up abstract legal theories
in a vacuum. It constructs the very definitions
of existence, liability, and life itself. The
architecture of the law is never just written
on paper. It dictates the actual lived boundaries
of human reality.