WEBVTT 00:00:00.000 --> 00:00:03.680 When you look at the great American monuments, 00:00:04.360 --> 00:00:06.120 like the Washington Monument or the Golden Gate 00:00:06.120 --> 00:00:09.750 Bridge, we just see this finished. solid structure. 00:00:09.990 --> 00:00:12.210 It just looks inevitable, you know, like it's 00:00:12.210 --> 00:00:14.449 permanent. Oh, totally. You're just appreciating 00:00:14.449 --> 00:00:16.929 the final product. You don't see the temporary 00:00:16.929 --> 00:00:21.570 scaffolding or the intense debates over the blueprints 00:00:21.570 --> 00:00:23.789 or the compromises they had to make on the steel 00:00:23.789 --> 00:00:26.190 just to actually get it built. Yeah, you just 00:00:26.190 --> 00:00:28.769 see the bridge. But then if you look at American 00:00:28.769 --> 00:00:31.870 constitutional law, suddenly that solid monument 00:00:31.870 --> 00:00:35.030 starts to look a lot more like a like a living, 00:00:35.210 --> 00:00:37.250 breathing, highly contested construction site. 00:00:37.450 --> 00:00:40.369 It is the absolute definition of a legal and 00:00:40.369 --> 00:00:43.670 historical work in progress. Right. Well, welcome 00:00:43.670 --> 00:00:46.950 to today's deep dive. We are digging into a massive, 00:00:47.310 --> 00:00:49.469 really fascinating stack of source material today 00:00:49.469 --> 00:00:51.049 for you. You really are. We're going to offer 00:00:51.049 --> 00:00:54.289 a comprehensive, historical, and legal breakdown 00:00:54.289 --> 00:00:57.229 of one of the most famous... and definitely one 00:00:57.229 --> 00:00:59.649 of the most debated Supreme Court cases in American 00:00:59.649 --> 00:01:01.829 history. Roe v. Exactly. And look, I want to 00:01:01.829 --> 00:01:04.829 be super clear right up front. Because this source 00:01:04.829 --> 00:01:07.709 material contains highly politically charged 00:01:07.709 --> 00:01:10.609 content spanning both left -wing and right -wing 00:01:10.609 --> 00:01:13.569 viewpoints, our goal today is never to take a 00:01:13.569 --> 00:01:16.390 side. Absolutely not. We are leaving the politics 00:01:16.390 --> 00:01:19.450 entirely at the door. Our only mission today 00:01:19.450 --> 00:01:22.090 for you The learner who just wants to understand 00:01:22.090 --> 00:01:24.549 the actual mechanics of our history without getting 00:01:24.549 --> 00:01:27.530 bogged down in rhetoric is to map the architectural 00:01:27.530 --> 00:01:29.629 blueprints. Right. We're going to impartially 00:01:29.629 --> 00:01:32.109 report on the facts, the legal arguments, the 00:01:32.109 --> 00:01:34.909 societal reactions exactly as they appear in 00:01:34.909 --> 00:01:36.730 the original source material. Yeah, we aren't 00:01:36.730 --> 00:01:39.629 endorsing any of the viewpoints we discuss. We're 00:01:39.629 --> 00:01:42.090 just acting as your guides to unpack how this 00:01:42.090 --> 00:01:44.810 monumental ruling was built and, well, ultimately 00:01:44.810 --> 00:01:46.909 how it was taken down. And honestly, mapping 00:01:46.909 --> 00:01:49.269 that architecture is just an incredible exercise 00:01:49.269 --> 00:01:50.739 because because what makes this legal history 00:01:50.739 --> 00:01:53.700 so fascinating isn't just the 1973 ruling itself. 00:01:54.120 --> 00:01:56.739 It's the 150 -year historical arc that precedes 00:01:56.739 --> 00:02:00.099 it and the 50 -year legal pug of war that followed 00:02:00.099 --> 00:02:02.659 it. So to really grasp the mechanics of that 00:02:02.659 --> 00:02:06.180 1973 ruling, we first have to understand the 00:02:06.180 --> 00:02:08.719 surprising reality of abortion laws before it 00:02:08.719 --> 00:02:10.759 even happened. Yeah, the history here goes against 00:02:10.759 --> 00:02:13.080 a lot of our modern assumptions. It really does. 00:02:13.219 --> 00:02:16.800 If you go back to... the early 19th century in 00:02:16.800 --> 00:02:19.659 the US, abortion was actually a fairly common. 00:02:19.930 --> 00:02:22.949 private practice. Under English common law, which 00:02:22.949 --> 00:02:25.909 we adopted, it was legally permissible before 00:02:25.909 --> 00:02:28.449 a concept called quickening. Quickening, right. 00:02:28.530 --> 00:02:30.550 That's that moment in a pregnancy when a woman 00:02:30.550 --> 00:02:33.990 first feels fetal movement. Exactly. And that 00:02:33.990 --> 00:02:37.330 is a major shift from how we tend to view the 00:02:37.330 --> 00:02:40.009 historical timeline today. It wasn't actually 00:02:40.009 --> 00:02:42.770 until around the 1840s that the legal landscape 00:02:42.770 --> 00:02:45.250 began to drastically change. And what drove that 00:02:45.250 --> 00:02:47.550 change, this is wild, wasn't initially a moral 00:02:47.550 --> 00:02:50.159 crusade. It was largely a profession. It was 00:02:50.159 --> 00:02:52.419 driven by the medical profession. Wait, really? 00:02:52.599 --> 00:02:54.780 The doctors were the ones pushing for the bans? 00:02:54.939 --> 00:02:56.680 Oh, wait, sorry. I'm stealing your thunder. Go 00:02:56.680 --> 00:02:59.060 ahead. No, no, you're right. Absolutely. At the 00:02:59.060 --> 00:03:01.900 time, men with formal medical degrees were trying 00:03:01.900 --> 00:03:04.300 to legitimize and professionalize their relatively 00:03:04.300 --> 00:03:07.300 new field. But they were competing with unlicensed 00:03:07.300 --> 00:03:11.020 practitioners, particularly female midwives who 00:03:11.020 --> 00:03:14.000 frequently performed these procedures. And the 00:03:14.000 --> 00:03:16.639 midwives were highly trusted. and well -paid 00:03:16.639 --> 00:03:19.479 for this work. Exactly. So by lobbying state 00:03:19.479 --> 00:03:22.060 legislatures to criminalize the practice, this 00:03:22.060 --> 00:03:24.620 newly professionalized, male -dominated medical 00:03:24.620 --> 00:03:27.259 establishment could effectively eliminate their 00:03:27.259 --> 00:03:31.599 unlicensed competition. Wow. So it was, at least 00:03:31.599 --> 00:03:35.300 in part, an economic monopoly play. Yeah. That 00:03:35.300 --> 00:03:39.020 is wild. And it worked, right? Because by 1900, 00:03:39.219 --> 00:03:41.500 every single state had outlawed the procedure. 00:03:41.819 --> 00:03:43.960 Every single one. So fast forward to the late 00:03:43.960 --> 00:03:48.039 1960s. The story of Roe formally begins with 00:03:48.039 --> 00:03:50.840 two young attorneys in Texas. Sarah Weddington, 00:03:51.080 --> 00:03:53.120 and Linda Coffey. And they were looking to challenge 00:03:53.120 --> 00:03:56.379 these century -old state laws, but you can't 00:03:56.379 --> 00:03:58.060 just walk into a court and say, I think this 00:03:58.060 --> 00:04:00.120 law is unconstitutional. Right, you need a plaintiff. 00:04:00.280 --> 00:04:02.120 You need what's called a test case. Exactly. 00:04:02.479 --> 00:04:04.580 And eventually they found a 21 -year -old woman 00:04:04.580 --> 00:04:06.979 named Norma McCorvey, who would be given the 00:04:06.979 --> 00:04:10.650 legal pseudonym Jane Roe. Jane Roe. And McCorvey's 00:04:10.650 --> 00:04:13.270 demographics made her the exact plaintiff these 00:04:13.270 --> 00:04:15.449 lawyers were looking for. I mean, she was white, 00:04:15.750 --> 00:04:18.350 young, lower class, and pregnant with her third 00:04:18.350 --> 00:04:21.029 child. It's almost exactly like a casting director 00:04:21.029 --> 00:04:22.930 looking for the perfect lead in a movie, you 00:04:22.930 --> 00:04:25.149 know? Right. The lawyers needed someone whose 00:04:25.149 --> 00:04:28.170 circumstances would elicit sympathy from a judge. 00:04:28.459 --> 00:04:32.220 someone who clearly demonstrated the harsh real 00:04:32.220 --> 00:04:34.879 -world impact of these bans. And they even strategically 00:04:34.879 --> 00:04:37.100 filed the case in Dallas. Oh, they didn't do 00:04:37.100 --> 00:04:39.720 that by accident. No, not at all. They knew exactly 00:04:39.720 --> 00:04:41.680 which judges were sitting in that district. They 00:04:41.680 --> 00:04:44.279 basically engineered the filing to maximize their 00:04:44.279 --> 00:04:46.360 chances of drawing a sympathetic three -judge 00:04:46.360 --> 00:04:48.860 panel. Wow. But what's fascinating here is the 00:04:48.860 --> 00:04:52.759 sheer irony of Norma McCorvey's actual lived 00:04:52.759 --> 00:04:55.079 experience in all of this. What's fascinating 00:04:55.079 --> 00:04:57.680 here is, well, yeah, despite being the face of 00:04:57.680 --> 00:05:00.379 this monumental history -altering legal battle, 00:05:00.860 --> 00:05:02.759 McCorvey never actually attended the Supreme 00:05:02.759 --> 00:05:05.000 Court arguments. Never even went. She never even 00:05:05.000 --> 00:05:06.759 got the abortion she was originally seeking. 00:05:06.860 --> 00:05:10.040 Because the legal system is so slow. Right. By 00:05:10.040 --> 00:05:12.079 the time the slow machinery of the courts actually 00:05:12.079 --> 00:05:14.540 moved forward, she had already given birth to 00:05:14.540 --> 00:05:16.939 a daughter, who was subsequently adopted by a 00:05:16.939 --> 00:05:19.839 couple in Texas. It really highlights the massive 00:05:19.839 --> 00:05:23.519 disconnect between the abstract grind of the 00:05:23.519 --> 00:05:26.779 legal system and the urgent reality of the actual 00:05:26.779 --> 00:05:28.680 human beings caught up in it. It really does. 00:05:28.839 --> 00:05:31.240 But knowing how the players were assembled, we 00:05:31.240 --> 00:05:34.279 can now look at how the Supreme Court built the 00:05:34.279 --> 00:05:37.519 actual legal framework of the decision. And this 00:05:37.519 --> 00:05:39.879 was far from a simple process. First of all, 00:05:40.040 --> 00:05:42.660 the case bypassed the Federal Appeals Court entirely. 00:05:42.819 --> 00:05:44.680 Right. It went straight to the Supreme Court. 00:05:44.720 --> 00:05:47.180 How does that happen? Well, that was due to a 00:05:47.180 --> 00:05:50.300 very specific federal statute. It authorized 00:05:50.300 --> 00:05:52.819 a direct appeal to the Supreme Court whenever 00:05:52.819 --> 00:05:55.639 a civil injunction is decided by a three -judged 00:05:55.639 --> 00:05:57.879 district panel. Okay, so it lands on the desk 00:05:57.879 --> 00:06:00.850 of the High Court. And Chief Justice Warren Burger 00:06:00.850 --> 00:06:03.730 assigns the task of drafting the majority opinion 00:06:03.730 --> 00:06:06.389 to Justice Harry Blackmun. And Blackmun really 00:06:06.389 --> 00:06:08.129 struggled with it. I mean, he originally wanted 00:06:08.129 --> 00:06:10.990 to avoid declaring any kind of sweeping new constitutional 00:06:10.990 --> 00:06:14.449 right. Right. He focused his early drafts on 00:06:14.449 --> 00:06:17.610 the idea of vagueness, essentially arguing that 00:06:17.610 --> 00:06:20.670 the Texas law was written so poorly and was so 00:06:20.670 --> 00:06:23.350 confusing that a doctor couldn't reasonably figure 00:06:23.350 --> 00:06:25.810 out when an abortion was legally permitted to 00:06:25.810 --> 00:06:28.889 save a mother's life. Which is a classic. judicial 00:06:28.889 --> 00:06:31.209 minimalist approach. You know, strike the law 00:06:31.209 --> 00:06:34.949 down on a technicality without making grand constitutional 00:06:34.949 --> 00:06:38.050 pronouncements. But the other liberal justices... 00:06:37.769 --> 00:06:40.430 pushed back hard on that. Yeah. They told Blackman 00:06:40.430 --> 00:06:42.629 that vagueness just wasn't enough. He needed 00:06:42.629 --> 00:06:44.970 to ground this in the concept of privacy. So 00:06:44.970 --> 00:06:46.910 Blackman, who used to be resident counsel at 00:06:46.910 --> 00:06:49.110 the Mayo Clinic in Minnesota, literally goes 00:06:49.110 --> 00:06:51.149 back to the clinic's library. He spends a whole 00:06:51.149 --> 00:06:53.449 week there. A week researching the history of 00:06:53.449 --> 00:06:55.850 medical procedures, heavily influenced by the 00:06:55.850 --> 00:06:58.389 historical research his clerks and abortion rights 00:06:58.389 --> 00:07:01.050 advocates had compiled. Right. So he abandons 00:07:01.050 --> 00:07:03.170 the vagueness argument, and he pivots to the 00:07:03.170 --> 00:07:05.970 14th Amendment. Specifically, the due process 00:07:05.970 --> 00:07:08.230 clause. Now, just reading the text, the due process 00:07:08.230 --> 00:07:10.149 clause basically says the government can't take 00:07:10.149 --> 00:07:13.170 away your life, liberty, or property without 00:07:13.170 --> 00:07:15.329 fair legal procedures. Yeah, it's about fair 00:07:15.329 --> 00:07:17.910 trials. Right. So how do you get medical privacy 00:07:17.910 --> 00:07:20.779 out of that? Well, that requires a legal concept 00:07:20.779 --> 00:07:23.639 called substantive due process. OK. Over the 00:07:23.639 --> 00:07:25.680 years, the Supreme Court had interpreted the 00:07:25.680 --> 00:07:28.839 word liberty in the 14th Amendment to include 00:07:28.839 --> 00:07:32.160 certain implicit fundamental rights, rights that 00:07:32.160 --> 00:07:34.339 aren't specifically written down in the Constitution. 00:07:34.439 --> 00:07:37.040 Things like the right to marry. Exactly. Or the 00:07:37.040 --> 00:07:39.259 right to direct the upbringing of your children. 00:07:40.040 --> 00:07:42.079 The court determined that this unwritten right 00:07:42.079 --> 00:07:45.500 to privacy was broad enough to encompass a woman's 00:07:45.500 --> 00:07:48.230 decision to terminate a pregnancy. OK, let's 00:07:48.230 --> 00:07:51.410 unpack this. Because it wasn't an absolute right, 00:07:52.029 --> 00:07:55.480 the state also has interests. Precisely. The 00:07:55.480 --> 00:07:58.000 court had to balance a woman's right to privacy 00:07:58.000 --> 00:08:00.819 against the state's interest in regulating medicine 00:08:00.819 --> 00:08:03.959 and protecting potential life. So Black men created 00:08:03.959 --> 00:08:06.459 the famous trimester framework. Right. In the 00:08:06.459 --> 00:08:08.459 first trimester, the state could place virtually 00:08:08.459 --> 00:08:11.060 no restrictions on the choice. In the second 00:08:11.060 --> 00:08:13.319 trimester, the state's interest in maternal health 00:08:13.319 --> 00:08:15.699 kicks in. So they could regulate the procedure, 00:08:15.879 --> 00:08:18.920 but only in ways reasonably related to the mother's 00:08:18.920 --> 00:08:21.139 health. And then the third trimester. In the 00:08:21.139 --> 00:08:23.790 third trimester, At the point of fetal viability, 00:08:24.009 --> 00:08:26.009 meaning the fetus could survive outside the womb, 00:08:26.709 --> 00:08:29.209 the state's interest in potential life becomes 00:08:29.209 --> 00:08:31.730 compelling enough that they could outright ban 00:08:31.730 --> 00:08:35.909 abortion, except to save the mother's life. OK, 00:08:35.909 --> 00:08:38.269 let's unpack this. Because if you were reading 00:08:38.269 --> 00:08:40.570 the 14th Amendment, it doesn't mention abortion. 00:08:41.029 --> 00:08:43.289 It doesn't mention trimesters. And it definitely 00:08:43.289 --> 00:08:45.490 doesn't mention viability. No, it doesn't. How 00:08:45.490 --> 00:08:48.750 did Justice Blackmun legally justify pulling 00:08:48.750 --> 00:08:52.809 a strict 12 -week medical timetable out of the 00:08:52.809 --> 00:08:55.649 abstract concept of constitutional liberty. I 00:08:55.649 --> 00:08:57.309 mean, it sounds more like he was writing a hospital 00:08:57.309 --> 00:08:59.990 policy manual than a constitutional ruling. That 00:08:59.990 --> 00:09:02.509 is exactly the critique many legal scholars would 00:09:02.509 --> 00:09:04.350 later make. Even those who supported abortion 00:09:04.350 --> 00:09:06.490 access, it was highly prescriptive. Extremely. 00:09:06.629 --> 00:09:08.669 But honestly, just to get the case heard so he 00:09:08.669 --> 00:09:11.169 could build that framework, the court first had 00:09:11.169 --> 00:09:13.970 to rely on a fascinating procedural workaround. 00:09:14.110 --> 00:09:16.649 Oh, right. The mootness doctrine exception. Because 00:09:16.649 --> 00:09:20.210 normally, federal courts only hear live controversies. 00:09:20.269 --> 00:09:23.029 Like if you sue because you want to build a fence 00:09:23.029 --> 00:09:25.470 and then you sell the house, the court throws 00:09:25.470 --> 00:09:27.919 the case out because it's moot. There's nothing 00:09:27.919 --> 00:09:30.620 to decide anymore. Right. And since Norman McCorvey 00:09:30.620 --> 00:09:33.159 had already given birth, her case was technically 00:09:33.159 --> 00:09:35.860 moot. Exactly. But the court recognized a special 00:09:35.860 --> 00:09:39.299 exception for issues that are capable of repetition, 00:09:39.580 --> 00:09:42.539 yet evading a review. Because a normal human 00:09:42.539 --> 00:09:45.840 pregnancy is vastly shorter than the multi -year 00:09:45.840 --> 00:09:48.179 federal appellate process. Exactly. If the Supreme 00:09:48.179 --> 00:09:50.679 Court dismissed every pregnancy -related case 00:09:50.679 --> 00:09:53.539 for mootness once the woman gave birth, the legal 00:09:53.539 --> 00:09:55.980 issue would never, ever be resolved. So they 00:09:55.980 --> 00:09:58.259 had to create a... procedural bridge just to 00:09:58.259 --> 00:09:59.740 get to the point where they could build that 00:09:59.740 --> 00:10:01.960 medical legal framework. Exactly. But because 00:10:01.960 --> 00:10:04.139 that massive legal foundation was built on this 00:10:04.139 --> 00:10:07.600 highly specific medical framework, rather than 00:10:07.600 --> 00:10:10.580 explicit constitutional text, it immediately 00:10:10.580 --> 00:10:13.419 drew fire. And looking at the history, this fire 00:10:13.419 --> 00:10:15.379 didn't just come from conservative opponents. 00:10:15.740 --> 00:10:18.139 No, it came from all sides. Let's start with 00:10:18.139 --> 00:10:21.019 the immediate dissents on the court, specifically 00:10:21.019 --> 00:10:24.080 from Justices Byron White and William Rehnquist. 00:10:24.279 --> 00:10:27.460 Right. went straight for the historical argument. 00:10:27.620 --> 00:10:29.580 Remember how we said the 14th Amendment's protection 00:10:29.580 --> 00:10:32.639 of liberty only covers rights deeply rooted in 00:10:32.639 --> 00:10:35.059 history? Yeah. Well, Rehnquist pointed out that 00:10:35.059 --> 00:10:37.100 by the time the 14th Amendment was adopted in 00:10:37.100 --> 00:10:41.059 1868, there were at least 36 state or territorial 00:10:41.059 --> 00:10:44.019 laws limiting abortion. Wow. So his argument 00:10:44.019 --> 00:10:47.139 was, how can you claim the drafters of the 14th 00:10:47.139 --> 00:10:49.879 Amendment implicitly intended to protect a right 00:10:49.879 --> 00:10:52.500 that they were actively outlawing at the exact 00:10:52.500 --> 00:10:54.899 same time? And Justice White famously called 00:10:54.889 --> 00:10:57.710 majority's decision and exercise in raw judicial 00:10:57.710 --> 00:11:00.129 power. He did. But then you look at the liberal 00:11:00.129 --> 00:11:03.549 critiques and they're incredibly revealing too. 00:11:03.669 --> 00:11:06.309 Oh absolutely. Like future Supreme Court Justice 00:11:06.309 --> 00:11:08.389 Ruth Bader Ginsburg, an absolute champion of 00:11:08.389 --> 00:11:11.309 women's rights, was highly critical of the legal 00:11:11.309 --> 00:11:13.830 architecture of Roe. She felt the decision ventured 00:11:13.830 --> 00:11:16.710 too far, too fast, and that its legal reasoning 00:11:16.710 --> 00:11:19.820 was fundamentally flawed. Right. Because Gimsburg 00:11:19.820 --> 00:11:22.340 pointed out that since Blackman relied so heavily 00:11:22.340 --> 00:11:25.419 on his medical background, his opinion actually 00:11:25.419 --> 00:11:28.320 centered on a doctor's right to practice medicine 00:11:28.320 --> 00:11:32.320 freely. Yes. Rather than centering on a woman's 00:11:32.320 --> 00:11:35.299 right to equal protection under the law, she 00:11:35.299 --> 00:11:37.860 believed the foundation should have been equality, 00:11:38.159 --> 00:11:41.019 not medical privacy. And later on, reproductive 00:11:41.019 --> 00:11:43.480 justice advocates argued that the ruling was 00:11:43.480 --> 00:11:46.519 fundamentally limited because privacy is a negative 00:11:46.519 --> 00:11:48.539 right. Right. It just means the government has 00:11:48.539 --> 00:11:50.320 to keep its hands off you. It doesn't guarantee 00:11:50.320 --> 00:11:53.220 you any actual help. Exactly. If Roe had been 00:11:53.220 --> 00:11:55.700 based on an affirmative human right, it would 00:11:55.700 --> 00:11:58.620 have required the state to actually ensure access 00:11:58.620 --> 00:12:01.080 to the procedure, regardless of your income or 00:12:01.080 --> 00:12:03.139 whether you lived in a rural zip code with no 00:12:03.139 --> 00:12:05.279 hospitals. So it left a lot of people who supported 00:12:05.279 --> 00:12:08.700 the outcome very anxious about the method used 00:12:08.700 --> 00:12:10.960 to achieve it. Highly anxious. Here's where it 00:12:10.960 --> 00:12:13.740 gets really interesting. It's like the Supreme 00:12:13.740 --> 00:12:16.620 Court built a massive legal skyscraper, right? 00:12:16.879 --> 00:12:19.379 But instead of anchoring it to solid bedrock, 00:12:19.960 --> 00:12:22.679 they built a foundation on sand. That is a very 00:12:22.679 --> 00:12:25.019 accurate way to look at it. Even the people who 00:12:25.019 --> 00:12:28.080 desperately wanted that skyscraper were terrified 00:12:28.080 --> 00:12:31.100 that the privacy foundation was legally flimsy 00:12:31.100 --> 00:12:34.049 and could easily collapse. Because Rehnquist 00:12:34.049 --> 00:12:37.110 historical dissent provided the exact blueprint 00:12:37.110 --> 00:12:39.669 that conservative legal scholars would use to 00:12:39.669 --> 00:12:41.850 chip away at that foundation for the next five 00:12:41.850 --> 00:12:45.070 decades. They systematically targeted the premise 00:12:45.070 --> 00:12:47.690 that this right was deeply rooted in the nation's 00:12:47.690 --> 00:12:50.429 history. Which brings us to how that foundation 00:12:50.429 --> 00:12:53.240 eventually cracked. because you have a vulnerable 00:12:53.240 --> 00:12:56.019 legal structure combined with rapidly advancing 00:12:56.019 --> 00:12:58.559 medical technology. Oh, the medical tech. Yeah. 00:12:58.679 --> 00:13:00.860 And that combination forced the Supreme Court 00:13:00.860 --> 00:13:03.220 to constantly rewrite its own rules. Right. So 00:13:03.220 --> 00:13:05.720 the first major structural earthquake hit in 00:13:05.720 --> 00:13:09.200 1992 with a case called Planned Parenthood v. 00:13:09.279 --> 00:13:12.620 Casey. Now, in Casey, a divided court narrowly 00:13:12.620 --> 00:13:14.419 saved the central holding of Roe that the right 00:13:14.419 --> 00:13:17.659 to an abortion exists, but they completely scrapped 00:13:17.659 --> 00:13:20.299 Justice Blackmun's entire trimester framework. 00:13:20.620 --> 00:13:22.360 They just threw the whole 12 -week timetable 00:13:22.360 --> 00:13:24.480 out. They had to. They replaced the trimester 00:13:24.480 --> 00:13:26.940 system with a simple viability line. Because 00:13:26.940 --> 00:13:29.919 medical science had advanced so rapidly. Exactly. 00:13:30.200 --> 00:13:33.039 A fetus could now potentially survive outside 00:13:33.039 --> 00:13:36.639 the womb at 23 or 24 weeks, rather than the 28 00:13:36.639 --> 00:13:39.320 weeks that was understood back in 1973. Wait, 00:13:39.639 --> 00:13:43.340 if the entire engine of the original 1973 Roe 00:13:43.340 --> 00:13:46.820 decision was the trimester framework, and Casey 00:13:46.820 --> 00:13:50.279 threw that framework in the trash in 1992, didn't 00:13:50.279 --> 00:13:53.799 the court basically write a brand new law while 00:13:53.799 --> 00:13:56.409 pretending to just uphold the old one? If we 00:13:56.409 --> 00:13:57.990 connect this to the bigger picture, you've hit 00:13:57.990 --> 00:14:00.090 on the exact structural weakness we were just 00:14:00.090 --> 00:14:02.450 talking about. The legal right was intimately 00:14:02.450 --> 00:14:05.509 tied to a moving scientific target. Because the 00:14:05.509 --> 00:14:08.389 law was tethered to viability as incubators and 00:14:08.389 --> 00:14:11.250 neonatal care improved, the legal line literally 00:14:11.250 --> 00:14:13.830 had to shift earlier and earlier into the pregnancy. 00:14:13.950 --> 00:14:16.690 The law was inherently destabilized by scientific 00:14:16.690 --> 00:14:19.090 advancement. And Casey didn't just change the 00:14:19.090 --> 00:14:21.029 timeline, it changed the legal test entirely. 00:14:21.190 --> 00:14:23.889 Yes. Under Rowe, regulations on abortion faced 00:14:23.889 --> 00:14:26.110 strict scrutiny, which is the highest level of 00:14:26.110 --> 00:14:27.990 judicial review. Basically meaning the government 00:14:27.990 --> 00:14:29.850 almost never wins. Right. They have to prove 00:14:29.850 --> 00:14:32.029 a compelling interest. But Casey abandoned that. 00:14:32.289 --> 00:14:35.389 They introduced the Undo Burden Test. Which meant 00:14:35.389 --> 00:14:37.669 states could now heavily regulate the procedure. 00:14:38.200 --> 00:14:40.899 Exactly. Instituting mandatory waiting periods, 00:14:41.399 --> 00:14:44.080 parental consent laws, strict clinic requirements, 00:14:44.559 --> 00:14:46.919 just as long as those rules didn't put a substantial 00:14:46.919 --> 00:14:49.059 obstacle in the path of the woman. So states 00:14:49.059 --> 00:14:51.340 were essentially given a green light to see exactly 00:14:51.340 --> 00:14:53.919 how many obstacles they could pile up before 00:14:53.919 --> 00:14:56.320 a judge called it substantial. And as that legal 00:14:56.320 --> 00:14:59.590 foundation shifted, States began finding incredibly 00:14:59.590 --> 00:15:03.110 creative workarounds. Like the 2021 Texas Heartbeat 00:15:03.110 --> 00:15:05.450 Act. Yeah, it was a master class in exploiting 00:15:05.450 --> 00:15:08.669 procedural loopholes. Texas created an abortion 00:15:08.669 --> 00:15:11.990 ban, but they explicitly forbid any state official 00:15:11.990 --> 00:15:14.789 from enforcing it. Which sounds crazy. Right. 00:15:15.110 --> 00:15:17.649 Instead, they outsourced the enforcement to private 00:15:17.649 --> 00:15:21.190 citizens via civil lawsuits. Anyone could sue 00:15:21.190 --> 00:15:23.809 someone who aided an abortion and win a $10 ,000 00:15:23.809 --> 00:15:26.090 bounty. It's brilliant in a highly controversial 00:15:26.090 --> 00:15:28.659 way. Because you can't sue a state official to 00:15:28.659 --> 00:15:31.159 block a law if that official has zero power to 00:15:31.159 --> 00:15:34.419 enforce it. Exactly. Abortion providers had literally 00:15:34.419 --> 00:15:36.879 no one to take to federal court to get an injunction. 00:15:37.000 --> 00:15:38.940 It was a complete end run around the federal 00:15:38.940 --> 00:15:42.120 judiciary. And all of this erosion ultimately 00:15:42.120 --> 00:15:45.799 culminated in 2022 with Dobbs v. Jackson Women's 00:15:45.799 --> 00:15:48.480 Health Organization. The Supreme Court officially 00:15:48.480 --> 00:15:52.159 overturned both Roe and Casey in a 5 -4 vote. 00:15:52.490 --> 00:15:55.210 Justice Samuel Alito wrote the majority opinion 00:15:55.210 --> 00:15:59.129 and he leaned heavily on the exact logic Rehnquist 00:15:59.129 --> 00:16:03.049 used in his 1973 dissent. Right. Alito argued 00:16:03.049 --> 00:16:05.409 that the right to an abortion was entirely unknown 00:16:05.409 --> 00:16:07.309 in American law up until the latter part of the 00:16:07.309 --> 00:16:10.070 20th century and therefore could not be implicitly 00:16:10.070 --> 00:16:12.929 protected by the 14th Amendment. But you can't 00:16:12.929 --> 00:16:15.809 officially declare a right entirely unknown in 00:16:15.809 --> 00:16:18.370 American law without fundamentally fracturing 00:16:18.370 --> 00:16:20.830 the massive political alliances that relied on 00:16:20.830 --> 00:16:23.200 it. Oh the fallout was massive. The moment Dobbs 00:16:23.200 --> 00:16:25.460 came down, the sociological fallout was immediate. 00:16:25.679 --> 00:16:27.519 And when you look at the source material detailing 00:16:27.519 --> 00:16:29.820 the decades leading up to Dobbs, you realize 00:16:29.820 --> 00:16:32.700 how much this single legal battle fundamentally 00:16:32.700 --> 00:16:35.639 rewired American demographics. And party politics 00:16:35.639 --> 00:16:37.919 too. It is so easy to forget how different the 00:16:37.919 --> 00:16:40.279 political landscape was before 1973. Oh, totally 00:16:40.279 --> 00:16:42.899 different. If you look at the 1960s and early 00:16:42.899 --> 00:16:46.379 70s, opposition to abortion was heavily concentrated 00:16:46.379 --> 00:16:49.139 on the political left and among Catholic Democrats. 00:16:49.460 --> 00:16:52.580 Meanwhile, many Republicans and evangelical Protestants 00:16:52.580 --> 00:16:55.039 actually supported legalization. They did. They 00:16:55.039 --> 00:16:56.820 viewed it through the lens of individual liberty, 00:16:57.440 --> 00:16:59.740 religious freedom, keeping the government out 00:16:59.740 --> 00:17:03.100 of private family matters. Roe radically flipped. 00:17:03.309 --> 00:17:06.410 those political coalitions. It's almost unimaginable 00:17:06.410 --> 00:17:09.150 to someone looking at modern politics, but the 00:17:09.150 --> 00:17:12.069 parties essentially traded sides over the next 00:17:12.069 --> 00:17:14.750 few decades. And the public opinion data during 00:17:14.750 --> 00:17:18.289 that 50 year span reveals deep, deep contradictions. 00:17:18.730 --> 00:17:20.890 Vast majorities of Americans consistently told 00:17:20.890 --> 00:17:23.390 pollsters they opposed overturning Roe v. Wade. 00:17:23.410 --> 00:17:26.130 Right. But simultaneously, those exact same majorities 00:17:26.130 --> 00:17:28.990 supported strict second trimester bans, which 00:17:28.990 --> 00:17:31.970 Roe prohibited. So what does this all mean? I 00:17:31.970 --> 00:17:33.809 look at American public opinion on this like 00:17:33.809 --> 00:17:37.109 a mosaic. From far away, people claim to be solidly 00:17:37.109 --> 00:17:39.829 pro -choice or pro -life. But when you look closely 00:17:39.829 --> 00:17:42.890 at the individual tiles, the data is full of 00:17:42.890 --> 00:17:45.930 massive contradictions. People wanted the symbolic 00:17:45.930 --> 00:17:49.069 umbrella of Roe upheld while actively supporting 00:17:49.069 --> 00:17:51.750 laws that Roe technically prohibited. It totally 00:17:51.750 --> 00:17:54.109 defies the simple binary we see on the news. 00:17:54.589 --> 00:17:57.009 And the sociological impacts went far beyond 00:17:57.009 --> 00:17:59.730 polling. They touched deep structural aspects 00:17:59.730 --> 00:18:02.420 of American society. Like the Donna Hugh Leavitt 00:18:02.420 --> 00:18:06.279 hypothesis. Yes, highly controversial. But two 00:18:06.279 --> 00:18:09.039 researchers argued that the legalization of abortion 00:18:09.039 --> 00:18:12.839 in the 1970s directly contributed to the massive 00:18:12.839 --> 00:18:16.140 unexpected drop in violent crime rates in the 00:18:16.140 --> 00:18:19.500 1990s. Their mechanism was that fewer children 00:18:19.500 --> 00:18:21.980 were being born into severe poverty or highly 00:18:21.980 --> 00:18:25.140 challenging socioeconomic environments. So two 00:18:25.140 --> 00:18:27.099 decades later, there was a smaller demographic 00:18:27.099 --> 00:18:30.079 cohort statistically at risk for criminal behavior. 00:18:30.269 --> 00:18:32.650 Though it is crucial to point out that theory 00:18:32.650 --> 00:18:35.670 caused an absolute uproar. Oh, yeah. Many economists 00:18:35.670 --> 00:18:38.170 heavily push back. They pointed out that crime 00:18:38.170 --> 00:18:40.390 dropped globally, even in countries where abortion 00:18:40.390 --> 00:18:42.690 wasn't legalized. Right. They argued the drop 00:18:42.690 --> 00:18:44.890 had more to do with the end of the crack epidemic 00:18:44.890 --> 00:18:47.789 and better policing. But just the fact that a 00:18:47.789 --> 00:18:50.890 Supreme Court ruling on medical privacy could 00:18:50.890 --> 00:18:53.450 even theoretically alter national crime rates 00:18:53.450 --> 00:18:56.589 two decades later shows you the scale of its 00:18:56.589 --> 00:18:59.299 impact. Absolutely. There are also documented 00:18:59.299 --> 00:19:01.579 shifts in the labor market. Older women, who 00:19:01.579 --> 00:19:03.140 historically might have had to drop out of the 00:19:03.140 --> 00:19:05.220 workforce to care for unexpected grandchildren, 00:19:05.900 --> 00:19:07.980 were suddenly able to continue their careers, 00:19:08.500 --> 00:19:10.799 changing the trajectory of women's economic power. 00:19:11.099 --> 00:19:13.759 This raises an important question about how political 00:19:13.759 --> 00:19:16.900 alliances are formed and broken. Because one 00:19:16.900 --> 00:19:19.400 of the most fascinating forgotten details in 00:19:19.400 --> 00:19:22.460 our historical material is the role of the global 00:19:22.460 --> 00:19:25.680 population control movement. Back in the 1960s, 00:19:26.160 --> 00:19:28.500 population control advocates were massive champions 00:19:28.500 --> 00:19:30.619 of abortion rights. Right, they viewed it as 00:19:30.619 --> 00:19:33.420 a necessary tool for demographic management to 00:19:33.420 --> 00:19:36.119 solve projected global food and resource crises. 00:19:36.380 --> 00:19:38.240 But that alliance fractured almost immediately. 00:19:38.539 --> 00:19:40.900 Civil rights leaders and black power activists, 00:19:41.180 --> 00:19:43.539 including prominent figures like H. Rat Brown, 00:19:43.980 --> 00:19:46.299 push back fiercely against the population control 00:19:46.299 --> 00:19:48.859 narrative. They looked at the history of eugenics 00:19:48.859 --> 00:19:52.279 and feared that abortion access, when championed 00:19:52.279 --> 00:19:54.500 by wealthy institutions to control population 00:19:54.500 --> 00:19:57.400 growth, was essentially a tool for racial genocide 00:19:57.400 --> 00:20:00.799 aimed at minority communities. Exactly. That 00:20:00.799 --> 00:20:03.700 intense tension forced the mainstream abortion 00:20:03.700 --> 00:20:06.579 rights movement to quickly distance itself from 00:20:06.579 --> 00:20:10.039 any talk of population control. They had to completely 00:20:10.039 --> 00:20:13.279 rebrand the movement around the concept of individual 00:20:13.279 --> 00:20:16.220 private choice, which is the rhetoric we still 00:20:16.220 --> 00:20:18.670 use. today. It is just a staggering history. 00:20:18.769 --> 00:20:21.910 It really is. To quickly recap the journey we've 00:20:21.910 --> 00:20:24.609 taken today for you. We've traced this single 00:20:24.609 --> 00:20:27.009 issue from the common law of the 19th century 00:20:27.009 --> 00:20:29.230 midwives through the strategic engineering of 00:20:29.230 --> 00:20:31.410 a test case in Dallas. We've walked through the 00:20:31.410 --> 00:20:33.430 back rooms of the Supreme Court where Justice 00:20:33.430 --> 00:20:36.349 Blackmun crafted a precarious medical legal framework 00:20:36.349 --> 00:20:38.730 based on the 14th Amendment. We examined the 00:20:38.730 --> 00:20:40.829 early dissents that provided the exact blueprint 00:20:40.829 --> 00:20:43.750 for the ruling's demise. We followed the timeline 00:20:43.750 --> 00:20:45.910 through the moving target of fetal viability. 00:20:46.140 --> 00:20:49.680 all the way to the 2022 dogs decision. We've 00:20:49.680 --> 00:20:51.700 stripped away the modern political rhetoric to 00:20:51.700 --> 00:20:55.460 look purely at the historical, legal, and sociological 00:20:55.460 --> 00:20:58.339 machinery of this monumental case. And as we 00:20:58.339 --> 00:21:01.759 close, there is one final, truly fascinating 00:21:01.759 --> 00:21:04.259 nugget from the source material for you to ponder 00:21:04.259 --> 00:21:07.559 on your own. The legal framework of Roe was so 00:21:07.559 --> 00:21:10.160 powerful and so deeply embedded in the definitions 00:21:10.160 --> 00:21:13.720 of medical science that it spawned entirely new, 00:21:14.099 --> 00:21:16.839 highly controversial categories of civil lawsuits. 00:21:17.299 --> 00:21:19.319 I saw this in the notes. You're talking about 00:21:19.319 --> 00:21:21.160 the wrongful birth and wrongful life claims. 00:21:21.359 --> 00:21:25.059 Yes. The legal interaction between Roe, the changing 00:21:25.059 --> 00:21:27.900 interpretations of the 14th Amendment, and advancing 00:21:27.900 --> 00:21:30.259 medical technology allowed for unprecedented 00:21:30.259 --> 00:21:33.660 legal theories. How so? Well, in some jurisdictions, 00:21:33.819 --> 00:21:36.029 the shifting The constitutional definition of 00:21:36.029 --> 00:21:38.450 fetal viability literally allowed parents, and 00:21:38.450 --> 00:21:40.769 in rare cases the children themselves, to sue 00:21:40.769 --> 00:21:42.690 a doctor over the very fact that they were born. 00:21:42.789 --> 00:21:45.289 Unbelievable. These usually involve cases with 00:21:45.289 --> 00:21:47.309 severe disabilities that weren't diagnosed in 00:21:47.309 --> 00:21:49.430 utero. The parents argued that if they had been 00:21:49.430 --> 00:21:51.210 properly informed, they would have exercised 00:21:51.210 --> 00:21:53.509 their right to terminate. Think about the profound 00:21:53.509 --> 00:21:56.769 gravity of that. We started this deep dive by 00:21:56.769 --> 00:21:59.670 comparing constitutional law to a living, breathing 00:21:59.670 --> 00:22:01.769 construction site. Right. But when you look at 00:22:01.769 --> 00:22:04.000 the reality of a wrongful life's lawsuit, You 00:22:04.000 --> 00:22:05.900 realize that the scaffolding the Supreme Court 00:22:05.900 --> 00:22:08.359 builds doesn't just hold up abstract legal theories 00:22:08.359 --> 00:22:11.420 in a vacuum. It constructs the very definitions 00:22:11.420 --> 00:22:15.119 of existence, liability, and life itself. The 00:22:15.119 --> 00:22:16.579 architecture of the law is never just written 00:22:16.579 --> 00:22:20.079 on paper. It dictates the actual lived boundaries 00:22:20.079 --> 00:22:20.960 of human reality.