When the opinion was issued, there was big news that day.
Lyndon Johnson died.
So, I'm not sure that the opinion was actually page one news in every newspaper in the country.
It wasn't the sort of spectacle that we witness today with people standing on the steps of
the Supreme Court, shouting and waving flags, ready to speak to the media the minute they've
read the first four paragraphs of the Court syllabus.
I'm quite confident that they thought that abortion would be kind of integrated into
American life and become acceptable and disappear as a divisive political issue.
It had exactly the opposite effect.
So Chief Justice Burger signed Justice Blackmun to write the opinion.
Justice Blackmun, when he was appointed to the Supreme Court, was considered to be a
conservative judge from Minnesota.
He had been counsel to the American Medical Association.
To work on the Roe Opinion he spent some time up in the Mayo Clinic library.
He'd been general counsel at the Mayo Clinic.
He was very tied into the medical profession.
And all these elite groups said it was time to get rid of the regime of criminal abortion
laws.
And so I think the justices as citizens shared that feeling.
The entire beginning, essentially, of the Blackmun opinion is all about history and medicine.
And it's about when abortion became illegal in the United States, what were the forces
that led to that.
Doctors were very involved in the efforts in the mid to late 19th century in criminalizing
abortion.
And it was always seen as a doctor's issue.
And so the American Medical Association itself, uh, took the position that it was something
that doctors should not do.
The Court avoided entirely the fact that states had banned abortion on the grounds that they
were interested in children's lives.
They claimed that the laws banned abortion because greedy doctors wanted a monopoly on
practice of medicine and abortion was being done by unlicensed or midwife, uh, practitioners
and the doctors wanted to rein in and have control of the medical profession.
It seems a bit paternalistic, uh, to us nowadays to focus on the doctor-patient relationship
rather on the woman's own right.
But if you read the opinion, we have to remember at the time doctors were really, really well
respected in American culture.
So focusing on the fact that, that a woman is doing this in consultation with her doctor,
I think, at least Justice Blackmun thought, lent some intellectual and cultural heft to
the opinion.
It's not really a decision about the rights of women.
It's the decision about the rights of doctors because doctors were the only ones who faced
prosecution for performing an illegal abortion.
And it's really a case about the right of doctors to practice medicine as they saw fit
on behalf of their patients without risking criminal prosecution.
And from there he starts to go into this evaluation of what is at stake here, um, and that's where
we get these two sides of the coin.
One is women being able to make decisions about when and if they become pregnant and
carry a pregnancy to term,
you know, and the other side the state having interest in potential life and then how we
balance those things.
And the way he figures to balance those things is through this idea of the trimester framework.
In the first trimester when abortion was relatively safe, states could have no regulation really
whatsoever.
In the second trimester when abortions became more dangerous, they could have regulations
that were directed to protecting the mother's health and safety.
In the third trimester, many people think abortion is banned, but what the court said is states
could ban it except for "life and health reasons," but then defined health
to include all factors- physical, psychological, familial, or the woman's age, relevant to
the well-being of the patient.
So in other words, abortion at all times for all reasons with no limits whatsoever.
Roe basically creates a floor.
You can't go below this, right.
So you can't completely outlaw abortion services.
You can regulate in really significant ways.
You can make it harder for women to access, but you cannot make it completely illegal.
There is not a recognition of fetal personhood, although the state does have an interest in
unborn life.
That interest doesn't sufficiently come into play to outweigh the woman's choice until
the fetus would be viable outside the womb.
So when the US Supreme Court decided Roe and they talked about Roe as a fundamental right,
that was really important because the fundamental rights analysis is a strict scrutiny analysis.
And so it requires a state have a compelling state interest and that they regulate in a
way that's nearly tailored to achieve that compelling state interest.
The state of Texas argued that abortion laws were directed at protecting women's health,
that abortion could have long-term ill-effects to women.
But more importantly, they argued, that abortion was intended to protect both the mother and
the child, that there was a child from the moment of conception and that that child was
worthy of legal protection just like any other child.
Yes, states were concerned about the lack of safety of abortion.
But they were actually very, very concerned about not killing life that is human, that
is vulnerable and that has no one else to take care of it.
Justice Blackmun says there's never been a concept of fetal personhood in the law.
He looks back at all the cases having to do with the right to privacy.
And he said, "We look at all of these together and we find we have adopted a view of a right
to privacy that is broad enough to cover a woman's decision whether or not to continue
a pregnancy."
I think the Roe decision has proven to be a deep wound in the body politic.
The Court took upon itself an issue that was being addressed throughout the country with
vigorous advocacy on both sides and finding some success, for good or for ill, by the change
of laws throughout the country in a way that there's no textual basis.
It overturned the laws of all 50 states.
It was pretty radical.
There was no even real build-up.
And I think people who are philosophically opposed to abortion feel the Supreme Court decided
that they have nowhere to go in the democratic process and their views are just not valuable
and that really angered people and, and galvanized a movement.
The Court anchored Roe in precedence of the time, particularly in the precedent from 1965
that has established a right to use contraception.
All of those cases come out of an understanding of the 14th amendment protection for due process.
And that's something that's been with us for quite a long time.
The Court doesn't go around finding fundamental or even strong constitutional rights every
day or every year even.
If we in fact believe, and I do believe, that the right to terminate a pregnancy is one
that should exist in our constitutional order, then I think it should be federally protected.
The fact that the Supreme Court decision created the basic right I think was really important.
It ensured that this debate would continue for 40 plus, now getting on for 50, years.
Whatever the policy should be, the Constitution didn't settle it, and the Court was wrong to
impose a particular policy.
When people think back on it,
they'll think back to that phrase
from Justice White's dissent:
Roe was an act of raw judicial power.