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June 30, 2022 59 mins

Given the landmark undoing of Roe v Wade, Chuck and Josh lay out all the relevant facts of the 1973 case.

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Speaker 1 (00:01):
Welcome to Stuff you should know, a production of I
Heart Radio. Hey, and welcome to the podcast. I'm Josh,
and there's Chuck and Jerry's here too, but she's hiding
behind us, and this is stuff you should know. That's right.
I think I have already titled this episode a dispassionate

(00:23):
look at Roe v. Wade. Yeah, akin to our episode
on kissing or roller coasters? Right, roller coasters is pretty appropriate, Yeah,
for sure, because it's been a heck of a ride
since h That's right. So, uh, just so folks know,
we're gonna just sort of take a look at the case,

(00:45):
the original case itself, and this idea was hatched, um
quite a few weeks ago, and obviously we kind of
sped that process along and we'll talk about that towards
the end. Okay, cool, that sound good. We're doing this
episode apropos of nothing at all. We just decided to
try to do it finally, right, So, um, we're talking

(01:07):
about Roe v. Wade. It's a Supreme Court case again
from nineteen seventy three. I think it was um published
at the very beginning of nineteen seventy three, and it
basically said, um, all you states which at the time.
Most of the states in the late sixties early seventies
had bands on abortion, some of them almost total. Uh.
The Supreme Court said, all those laws are unconstitutional. We

(01:30):
have to re refigure this. And it was the culpination
of like um, a whole process, a whole bunch of
lawsuits were kind of file at the same time about
the same thing. UM. But it was in no way
shape or formed less sweeping because you know, it was
kind of in the zeitgeist. It's what people were talking about.
I think it took I read it took both sides

(01:51):
of the abortion issue by surprise. It was that kind
of sweeping and that much of a complete course reversal
for the United States as far as how we approached
abortion goes right. It's a good way to say it.
Abortion is nothing, and we'll probably do I mean, but
I think we've long wanted to do just a full

(02:12):
episode on abortion, and so we'll probably work that one
in at some point in the near future. But abortion
has always been around. Uh, It's usually always been regulated
in some form or another. UM, usually in what we'll
call the third trimester. But we'll get to that stuff
later as well, or later in this episode UM. But

(02:32):
in the nineteenth and twentieth centuries, there were no federal
laws on the books, and it was left to states
to kind of come up with their own interpretations of
UH what was kind of usually originally based on English
common law. And beginning in the eighteen hundreds is when
a lot of the states started really restricting or outright

(02:54):
banning abortion. And I believe in the nineteen sixties there
were not these states left at all UH that didn't
have bands or restrictions on abortion. Yeah, And the nineteenth
century UM was kind of a pivotal point for UM
the concept of abortion in the United States for a
couple of reasons. There's a historian named Leslie Jay Reagan

(03:16):
who wrote When Abortion was a Crime UM, And she
wrote that in eighteen fifty seven, the American Medical Association,
which had just been founded, basically said, Hey, we need
to start a campaign to outlaw abortion in part, UH,
historians say, to help wrestle UM control of women's health
away from midwives and to help consolidate basically all aspects

(03:39):
of health, including that under doctors. That's one thing that
people say led to the rise of abortion laws anti
abortion laws in the United States. And then there's there's
on both sides, there's allegations that some of the earliest
proponents for for or against abortion UM were racially mo

(04:00):
devated to on the UM. On the the proponent the
abortion proponent side, they say that some of these earliest
UM laws were basically white Protestant Americans starting to get
nervous at all of the immigrants that were coming over
and saying, we need to step up, you know, the
birthrate among white Protestant Americans, and UM, one good way

(04:22):
to do that is the outlaw abortion. And then the
UM the anti abortion side says, no, no, that may
or may not be true, but you guys were eugenicists,
and you actually wanted abortion so that you could control
UM undesirable meaning non white populations in the United States.
So both sides are slinging mud all the way back,

(04:43):
starting in the nineteenth century. It just kind of gets
worse from there. Yeah, and of course you're using that
terminology because they didn't have terms like pro choice in
pro life at that point. Yeah, but I also see
UM it seems to be more UM academic to call
it pro abortion an anti abortion because pro life is
such a it's such a loaded term. It's like, oh, oh,

(05:05):
you don't like life. You know, if you're if you're
if you're pro abortion, do you that doesn't mean that
you're against life. So I saw a pro abortion and
anti abortion kind of settling that dispute well, and the
both sides have also taken those terms and bent them
to their own will uh in more recent years, by

(05:27):
saying things like we're not pro abortion, we're pro choice,
and other people saying we're not anti choice, we're pro life,
and then other people saying you're pro birth, not pro life.
So it's uh. This sort of leads us into what
I like to call the central mess of this, the
whole debate really um and this is as it relates to.

(05:50):
You know, legally speaking, there is a larger ethical and
moral debate which you know obviously plays a huge party.
You can't um remove that, but we're here to talk
about the legal case. But legally speaking, the all caps
huge mess, which has always been around and always will
be around, is that nobody, doctors and certainly lawyers and

(06:14):
justices and judges have never been able to agree on
what life means and when that starts. And that is
the central crux and the central mess of it all
that will never get solved and has never been solved
because it's unsolvable. Um, there is no definition that everyone

(06:35):
agrees on. And even the justices in the original Roe v.
Wade case admit to this and say, you know, doctors
don't agree on this. We certainly can't decide this. So
that created this, this quagmire and this uh many pronged
debate um over you know, when is it okay? If

(06:56):
ever is it a crime? When is it a crime?
How severe is that crime? What about the mother and
her health? What about the health of a fetus? And
who decides all this stuff? Yeah, we've I mean despite
not knowing and maybe not being able to know when
life actually begins. Um, there have been attempts over the
years at abortion regulations that kind of try to take

(07:20):
a stab at it. And one of them was quickening.
I saw this was an early nineteenth century one. And
quickening is a two for right for yeah, for that
moment when you first see Highlander two in your life
changes forever for the better. No, it's actually when the
the mother first feels the fetus moving inside of her.

(07:40):
They call that quickening, and it's like a super nineteenth
century a grarian FARMI um, kind of weird, almost animal term,
but that's that's what they called it. And that's when
they defined the beginning of life. And that's when they said, okay,
after that, we're regulating abortion after a quickening. That's that
was the first attempt and that kind of um that

(08:01):
kind of underscores like the the attempts since since then,
which are basically based on this idea of viability, Like
if that fetus was removed from the mom what chance
would it have to survive on its own? And if
the if a doctor consensus of doctors say after about
this time or at about this state or about this

(08:23):
stage and pregnancy of fetus could probably survive on its own. Um,
that has helped kind of define where, uh, where abortion
regulation begins and ends. That's right. So um, the Supreme
Court back then in the nineteen seventies grappled with this
and like I said, they they flat outside. I mean,
here's the quote. When those trained in the respective disciplines

(08:45):
of medicine, philosophy, and theology are unable to arrive at
any consensus as to when life technically begins, the judiciary
at this point in the development of a man's knowledge,
UM is not in a position to speculate, is to
the end, sir. So they you know, at least the
Supreme Court has flat out said over the years like hey,

(09:06):
we can't define this UM. That would have made it
even all the trickier if they weighed in saying, well,
here's what we think. Right. So the upshot of all
this is, we don't know when life begins, but we
do know that there are plenty of women out there
who don't, who get pregnant and don't want to carry
the fetus to full term. They don't want to have
that child for one reason or another. UM. So the

(09:29):
government decided that it needed to step in and figure
out how to balance those two things. They said that
the state has an invested interest in protecting the life
of the unborn while also protecting the interests of a
woman's right to choose whether she has a child or not.

(09:50):
And they basically took a bunch of plates, they put
them on the end of polls, they started spinning them.
They got on a unicycle and rode out on a
high wire over the Green Canyon. That's right, Yeah, I
think that's a good time for a break with that
image in people's heads. And we will talk about the

(10:13):
case itself and who Row was and who Wade was
right after this, all right, So if you're gonna talk

(10:43):
about Roe v. Wade, you gotta talk about Row and Wade.
Um Row. And I think, you know, I'm not sure
that a lot of people have really studied this. They know,
may know a lot about the case, but um, I
had never studied it to this degree until we did that,
and it's just good information to have, especially these days.

(11:04):
So Row was Jane Rowe obviously a made up name
like Jane Doe, and they usually do use Jane Doe.
But when there are a bunch of doughe cases on
the docket, uh, and especially in this one, there was
another dough on the docket that had to do with abortion, uh,
Doe v. Bolton, which we'll talk about as well a
little bit. Uh, they just change it to Row. It's

(11:26):
that simple. But we do know, and we've known for
decades now, who Jane Roe really was, and that was
a woman uh named Norma McCorvey and her twenties in Texas. Yeah,
so at the time Texas had um one of the
most comprehensive band on abortion. It was basically UM. It said,

(11:47):
if if the fetus is malformed, their words, if the mother, UM,
if the mother's life is in danger, or I think
if UM, if the what was the last think, if
if it's the product of a rape. Then those are
the three different criteria that an abortion could possibly be
UM carried out, under performed under and UM. That meant

(12:11):
that since Norman McCorvey didn't didn't fit any of those
criteria but still didn't want the kid, that she was
looking for an abortion but couldn't get one in Texas.
She also didn't have very much money UM and so
she couldn't travel out of state like a lot of
more well to do women in her situation would have done.
So she um started to get desperate because I mean,

(12:32):
I didn't say this, chuck, but she had already had
two kids. This was her third child. She wasn't married
to the man who UM she had gotten pregnant by,
and in fact was a lesbian who was in a
committed relationship I think at the time. So yeah, she
really did not want to have this kid. Yeah, she
had given the other two up for adoption just so
everyone knows. It's not like she had two kids at home. Um,

(12:55):
she had given the other two up. I think one
to a family member, I'm not sure about the other one.
Definitely adopted the second one. The first one was raised
by her parents, right, which is also adoption. But she
is now in a position where she doesn't want to
have this third one and was put in touch with
an attorney name Linda Coffee and Coffees partner Sarah Weddington,

(13:20):
two recent law school grads who were who were looking
for a case like this. And this is where I
don't know if you've seen the great Alexander Payne movie
Citizen Ruth, But it's a movie about basically the Roe v.
Wade Um debate with Laura Dern and it's his first
movie and it's great and it's a great comedic satire.

(13:44):
But wait what, you haven't seen it. No, it's comedic.
Oh yeah, it's a it's a Alexander Payne satire. Is
it a musical comedy? No? No, no, it's just a
movie basically. You know, Laura Dern is the central figure
who was a drug addict who is pregnant and gets
co opted by both sides like they both have think

(14:05):
they have found the golden case to make their case
and and true Alexander Paine fashion like, you know, both
sides are played rather satirically and there are no, um,
no winners. Really. Uh that's great one that sounds like
real life for sure. Yeah, but that that basically is
what's happened. So she was um you know, later says

(14:27):
she was kind of co opted and manipulated, which we'll
get into by these two uh women who were her attorneys. Um.
Later in life she became a born again Christian and
this is when most of that stuff out about the
attorney's manipulating her came out and after being pro choice

(14:48):
for her whole life, was pro life. And then uh
came out later almost like a deathbed confession, and said,
you know what they paid me. The quote was it
was a mutual thing. I took their money. And this
is to be clear, the uh, the pro life side
paid her uh to reverse course is what she says.
At least, it was a mutual thing. I took their

(15:10):
money and they put me in front of the cameras
told me what to say, and that's what I said.
I did it well because I was a good actress. Yeah,
and there's a there's a lot of people who argue
that she wasn't ever really pro choice either. Um, that
that she was um and ed helped us with this one.
That she was basically more of a mercenary who looked
out for herself. And I've read quotes from her that

(15:32):
basically say as much that she she didn't really care
about this whole huge um case that she was the
center of. She just wanted an abortion, and that was
the thing that she said that she was manipulated about.
That coffee in Weddington basically talked her out of getting
an abortion because they were worried that if she didn't um,

(15:54):
if she didn't have the child by the time the
the Supreme Court heard this case, she would no longer
of standing because at the time, the courts used to
rule that if you weren't actively pregnant, if you'd already
had the kid, your case would just get thrown out
because you weren't pregnant anymore. So who cares. And we'll
talk a little more about that in a minute, But
that was why, Um, they they supposedly talked her out

(16:17):
of it. They say they definitely didn't talk out of it.
But at the same time, they didn't help her find
an abortion, which is what she was after when she
contacted them in the first place. Right. So, uh, if
you're wondering why this happened, she was, I believe, pregnant
in nineteen sixty nine, and this case wasn't rendered until
nineteen seventy three. It's because a lot of stuff happened

(16:40):
in nineteen seventy one. They were gonna begin hearings in
December of that year when both Justices Hugo. Black and
John Marshall Harlan the second retired from poor health. That
was in you know, they died. They both died before
the end of nineteen seventy one, so they were definitely
in poor health. Yeah, the prophecy turned out to be

(17:02):
correct well and just crazy timing. I mean, I don't
think we've seen I we definitely haven't seen anything like
that since then. But for two justices to retire, you know,
within days of each other as pretty monumental. Um. And
so President Nixon of course was looking at chops and
appointed William wind Quist. Always have the trouble with that

(17:22):
wind Quist. I know, I just go pretend like the
h is called Prince's pride in that moment. Uh and
Lewis F. Powell Jr. Nominated on the same day in
October seventy one, came in and because these Supreme Court
cases take so long to get through, Um, they decided basically,

(17:45):
after a lot of handwringing, that even though they had
begun hearing arguments on that case, that they would redo
it all with the nine justices instead of the seven. Yeah.
So this was October two when the case that was
eventually decided started in earnest Um. So yeah, by this time, um. Uh,

(18:06):
Norma McCorvey had already had her child, Her child was
two and a half years old, and already had been
given up for adoption. Um. But they still ruled that
she had standing. That essentially it was not moot right, No,
it wasn't so so that that's um, let's just talk
about that real quick. So, like I was saying, like
courts used to rule that if you weren't actually pregnant,

(18:28):
you couldn't have standing in a pregnancy related case, even
if you'd filed the initial lawsuit while you were pregnant.
You weren't pregnant any longer. So whatever, So the Supreme Court.
One of the things they did in Row was established
that um, pregnancy could not be rendered moot because, as
they put it, pregnancy provides a classic justification for a

(18:51):
conclusion of non muteness, which apparently is a real legal
term because it says it could truly be capable of
repetition yet evading of you, meaning that any time you
um that, like an appellate said, Hey, these guys passed
me over for lack of standing because I'm not pregnant anymore. Um,
the following the letter of the law, the appellate court

(19:15):
would be like, well, we can't hear because they're right,
you don't have standing anymore. So the Supreme Court finally said,
forget that pregnancy is a recurring thing. Um, it's a
it's a transitory thing, but it's actually a thing, so
we need to be able to review it. So they said, yes,
if you are a woman who has been pregnant or
even could be pregnant, you have standing in cases like this. Yeah,

(19:35):
because basically they would never hear a case because it
takes way longer than nine months to like get this
thing up to the court system and review it. Yeah,
and I mean all the initial prosecutor have to do
with be like file a bunch of emotions to delay
it for nine months and then the case gets automatically
thrown out. And they even say, like, our law should
not be that rigid. So that was a big thing
that they did in in the row Um opinion. For

(19:58):
a brief side track into levity, I cannot hear the
word moot without thinking of that great Saturday Night Live
sketch with Jesse Jackson years ago, the question is moot?
Did you ever see that one? No, it was a
game show called the Question Is Moot, and Jesse Jackson
was the game show host, and basically he would just
he would laugh out a big question and anytime someone

(20:21):
would go to answer it, he would just interrupt him
and say, the question is moot. And like my brother
and I said the question is moot to each other
over and over for your period of years when we
were kids. It was pretty great. No, I've never seen
that one. Alright, So back to Roe v. Wade funniness
now over Um, we have to talk about a few
of these cases because you know, we tend to think

(20:42):
of Roe v. Wade as this sort of this vacuum
single case but there were many cases that went into
UM kind of shaping what ended up happening UM. The
first of which was probably UM United States versus v Which,
which was in one when a doctor in d C,
Dr Bowich, was performing abortions and said uh, and was

(21:06):
prosecuted for doing so under d C law because d
C law said, um necessary it can only be done
if it was necessary for the preservation of the mother's
life or health. Key under the direction of a competent
licensed practitioner of medicine. And he said, this is really
unconstitutionally vague of of what that means, like what does

(21:27):
health of the mother even mean? And a really key
thing came out of that, right, Yeah, they they said, Nope,
it's actually not overly vague. It actually makes sense. But
they ruled in their opinion, so they ruled against voisch
Um and in favor of DC's abortion law. But they
did say, but we could see how health could include

(21:50):
something like a mother's psychological health or the impact an
unwinded child might have on a family that but he
knew and that was huge. So that was a precedent.
And we saw in the Freedom of the Press episode
that sometimes justices will like rule against the person, but
then we'll establish a foundation for a later case by
just mentioning something like that, and that's what they did

(22:11):
in that case. Another few cases that had a big
impact were the first two were Meyer versus Nebraska in
nineteen twenty three, which was post World War One. There
was a large anti German sentiment, so they basically enacted
laws and said, you can't teach foreign languages in school anymore.

(22:32):
Only English is the only language you can teach. Uh.
And then Pierce versus Society of Sisters, which was based
on based on an Oregon case where the state of
Oregon said all kids have to go to public school.
You can't go to private school because of the Oregon
Compulsory Education Act. So those two factor in and how

(22:54):
they affected how the Fourteenth Amendment and the Ninth Amendment
were framed in terms of row. And it's a little confusing,
but it's a little wonky, but the upshot of it
is that the the in nineteen twenty three and nineteen
twenty five, the Supreme Court established a precedent by saying
we're going to start in interpreting the Ninth Amendment, which

(23:15):
basically says, even though we've mentioned some stuff in the
Constitution and the Bill of Rights specifically, that doesn't mean
that other stuff isn't constitutionally protected, like there are other
rights to that we didn't mention. Figure it out, Supreme
Court basically what the framers were saying, or the Ninth
Amendment writers, and then the fourteenth Amendment UH grants equal

(23:36):
protection under the law with due process. It's called the
due process clause. And so they put these two things
together and they basically said that um, that that the
Court now has the ability to interpret whether something not
mentioned in the Constitution is a constitutionally protected right. That's
what those two cases did, and that established a longstanding

(23:59):
precedent that gave the Supreme Court that ability. Sure, because
the Constitution was written in the eighteenth and nineteen centuries,
and obviously there were not things like the Internet back
then and all kinds of things that we have to
decide upon these days. So but if you're an original list,
then that's great because that just means that you can
overturn the existence of the Internet by outlawing it if

(24:21):
you're a Supreme Court just that's right. What did Thomas
Jefferson think uh. Griswold versus Connecticut was the other case
in ninety five, and they used that. I don't think
we said that was the doctrine was ended up being
called substantive. Jeez, here we go, substantive due process. Can

(24:41):
I take a crack at it? I would say substantive
due process. Substantive. Yeah, you know why, because that's correct.
I knew I was tripping over it a very obvious thing.
They're substantive, substantive due process. Let's just call it SDP.
Uh So in sixty five with Grizzwald versus Connecticut, they

(25:03):
use that s DP doctrine to say that Americans also
have a right to privacy because that's not mentioned in
the Constitution either. But like I mean, this kind of
opened up all what we you call like the bedroom cases,
which is, hey, we can't um legislate what happens in
someone's bedroom. That's that's a right, inherent right to privacy,

(25:25):
and that covers and that ended up covering according to Scotus, marriage, procreation, contraception,
family relationships, child rearing, and education, which was sort of
the basis of everything in terms of row. Yeah, and
Grizzwald versus Connecticut was not really the first case that
tested that. I think Loving versus West Virginia, which UM

(25:47):
the Supreme Court overruled laws that that UM kept interracial
couples from marrying UM. But but Grizzwold versus Connecticut was
short on the heels of that, and it was over
birth control rights. But also that led the that right
to privacy, that substantive due process doctrine kind of led
to the creation of UM, led to everything from the

(26:09):
the support for gay marriage, UM overturning laws that band
gay sex, I mean, all sorts of different stuff. It
just basically said there's really private things in people's everyday
lives that the government has no business or no saying.
So we're just gonna leave that alone. But there's a
big problem with that, Chuck, And this is a huge problem,
at least as far as law goes. The idea that

(26:33):
Americans have a right to privacy guaranteed by the Constitution
is technically illegal fiction. If you're an originalist and you
read the Constitution literally and you say, okay, what would
the founders think about this? What were they thinking at
the time they wrote this document? Then they would say

(26:55):
they didn't put right to privacy in there, and maybe
they do have a right to privacy. Americans do, but
it's not in the constitution, meaning that it could be
overturned later by a court because it's not constitutionally protected.
And that is what put Roe v. Wade on shaky
ground from the beginning, is that it was argued and

(27:16):
decided as a right to privacy case. And again, privacy
in this sense is not privacy like you and I
would think of like you know, nobody looking over his shoulder,
but more um, the an American's ability and freedom to
make decisions about what affects their own personal life without
government intervention, that term of privacy. But by basing it

(27:37):
on that, it's set Roe v. Wade up on rather
shaky legal foundation. Uh. And that was actually a kind
of a pet argument of Ruth Bader Ginsburg. Yeah, I mean,
she was on record as saying that she thought it
was on shaky ground and for good reason, and that
it should have never been decided on those grounds. And

(28:00):
and uh was was certainly not saying that she was
pro life, but was on record as saying that it
tried to do too much, to sweeping too fast, and
the way it should have gone about, Uh was you
know X y Z and uh So who knows what
had happened, what would have happened had she um you know,

(28:22):
had to cover one of these cases. But well, what
she was at the time one of her cases was
was on its way to the Supreme Court and it
was an abortion case. It just got um decided or
or it was resolved because the Air Force changed its policy.
So she could have been the one who argued the
abortion case in front of the Supreme Court. Yeah, I'm
really curious how that would have panned out. But the well,

(28:42):
the way that she suggested it should have been done
is rather um basing it on the right to privacy,
it should have been based on the Equal Protection Clause
of the fourteenth Amendment, because she her her logic was
that by forcing women to be pregnant, the government is
forcing a condition on women that men are not subject to,

(29:02):
and that that is by definition, gender discrimination, which is
uh protected against by the Equal Protection Clause. So that's
in the Constitution. So what Ruth Bader Ginsburg was saying,
if you had argued and decided row on the basis
of the Equal Protection Clause, it would have been virtually
ironclad from day one, and it wasn't. It was on

(29:24):
shaky legal ground, and anybody who knew the law knew
that it could be challenged. He just had to chip
away a road at it, make all these different arguments,
and sooner or later a changing court would start finding
holes in it because they knew the law too. That's right, Uh, great,
time for another break, I think, So let's come back,
uh and talk a little bit more about Rob Wade. Yeah. Sure,

(29:47):
that's a good idea. I was thinking we changed the
Zeppelin's mid mid episode led Zeppelin. I would do that actually,
all right, So, Chuck, I think you said, um that

(30:21):
the Roe v. Wade was, um, just one of a
number of cases that we're making its way to the
Supreme Court. At that time around, I think there was
something like eight teen cases. And the reason that America
went from abortion laws starting in the nineteenth century to
all of a sudden, a bunch of them being challenged
from different states all at once, was because in the

(30:44):
sixties there was so much social change, and one of
the big changes is that women were getting out from
under men's thumbs. They were going into the workplace, they
were taking birth control pills, they were taking control of
their lives in ways that they never had been before.
But they saw very clearly, very early on and long
before the sixties, that one of the major paths to

(31:09):
self determination was their ability to choose whether to terminate
a pregnancy or not. And that's why, all at once
they were like at least eighteen cases coming to the
Supreme Court that that UM sought to overturn abortion bands.
That's right, Uh, And all of these cases sort of
played into it. Some were actually joined to ROW, some
were decided alongside Row. One of them was John and

(31:32):
Mary Doe. They filed a complaint because uh the wife Mary.
Of course, that probably wasn't her real name, right, I
don't think that they would have been a heck of
a coincidence. Well, I mean Mary. They couldn't use Jane
anymore either, so oh yeah, I guess not. They went
from Jane Doe to Jane Row to marry at Dough

(31:54):
and maybe there would have been a Mary Row eventually,
who knows. But she couldn't continue to take birth control
role uh pills for health reasons, and so they argued
that the government was infringing on their right to have
sex as a married couple without getting pregnant. Basically, Um
James Halford was a Texas doctor who was arrested for

(32:14):
violating the Texas abortion band that was tagged on. And
then we mentioned Doe versus Bolton earlier. This was a
Georgia case which was really similar to Roe v. Wade.
Georgia just had a bunch of kind of hoops you
had to jump through to get a legal abortion, and
they they decided that at the same time, and we

(32:35):
could be talking about DOVEE. Bolton more. It just kind
of went the other way and we talked Roe v.
Wade more, but it was the same kind of deal
equally as important. Yeah, the thing is I read that
UM Bolton went further, like way further that the the
case was. They were both published on the same day.
But then in Dovie Bolton, the Supreme Court essentially said,

(32:57):
like a woman should be able to get an abortion
and for basically any reason she wants that they couldn't
see any genuine reason why, um, the government should be
able to tell a woman that she she couldn't terminate
a pregnancy. That there just wasn't a good reason. And
I guess that fact or that argument didn't come up
in Roe v. Wade, but it did come up in

(33:19):
Dovie Bolton, and you mentioned that it was a Georgia
law and that there were some hoops that that basically
um the um. The Jane Doe in that case was saying, um,
like George is just putting up obstacles barriers just to
keep me from getting an abortion. And there were a
bunch Your doctor had to agree to it in the
first place, they had to go consult with two different

(33:41):
doctors who both had to agree that you should have
the abortion. Then your doctor had to go get permission
from a hospital review board where the abortion would be performed.
If it was um. If it was because of rape,
you had to produce proof of rape, proof of the
rape to get an abortion. So you basically had to
bring a note from the local police saying, yes, this

(34:03):
woman was raped and became pregnant as a result of it.
Like that's nuts in and of itself. And then also
your family or even a court attorney could block it,
could could petition to for you not to have the abortion,
and it would come before a judge to hear whether
it should proceed or not. I would say there's a
lot of obstacles mixed up in there in that Georgia law,

(34:23):
I would agree with you, um, And that was decided,
like I said, alongside row and in the end, uh,
well the end at the time at least, um, Supreme
Court World seven two in favor of Jane Rowe uh January.
Justice Blackman wrote the majority opinion did the same for

(34:44):
Doe versus Bolton, also a seven two decision, and Byron
White and William oh God, William Renquist, thank you very much. UM.
They were the ones who did not join the majority
in those cases. And you know again it was it
was based on those ninth and fourteenth Amendments, and they

(35:07):
basically said that an unwanted child can be a serious
problem for both the physical and mental health of the
mother uh and the family and even the child. And
the government forcing families to take uh, to take this
burden on violated the right to privacy. Um, you want
to hit us with a little bit of the uh.
The majority opinion. Yeah, they were saying, like, um, you

(35:30):
you like it could be harmful to the woman's health,
and you could diagnose that even early in pregnancy, So
why should the government block that treatment from a doctor
or Um, it might force the stressful life onto a woman. Um,
she might suffer psychological harm by it, just from even
raising a kid, especially a kid that is unwanted, which
is going to have an impact on the child itself

(35:52):
and how the child is raised. Um. They basically said,
like there's an also, don't forget like the stigma of
unwed mothers. Like, are we going to also force the
woman to get married too because she's uh an unwed mother. No,
we're not gonna do that, but there is a social stigma.
They called out like a pretty decent handful of reasons
why the government saying no, you cannot get abortions was

(36:16):
unfair to women and unconstitutional as a result. And you
know a lot of that has been um uh well
basically proven in what's called the Turnaway Study, which for
some reason I was calling the Takeaway Study. Uh. The
Turnaway Study is um a longitudinal study that was performed. Uh.

(36:37):
They basically took a thousand women from three different groups,
women who sought an abortion up to three weeks over
the limit who were called and we're denied. They're called turnaways, uh,
which is where the study gets his name. Women who
sought an abortion up to two weeks under the limit
and did receive the abortion. And then women who received
an abortion in the first trimester, and we'll talk about

(37:00):
all the trimester stuff here in a bit too. But
what the Turnaway Study found was a lot of things. UM.
Women who were denied abortions were more likely to experience
UH complications from the indo pregnancy UM, including death, more
likely to stay tethered to abuse of partners very big one,

(37:21):
less likely to have aspirational life plans for the coming year. UM.
What else? UM, I mean, there's a lot of financial
burden to being denied an abortion. UM was linked to
a lower credit score, a higher amount of debt, and
increasing the number of negative public financial records like bankruptcies

(37:41):
and evictions just from being denied an abortion. And women
reported that having the abortion was the right decision over
a five year period after the procedure. That's a pretty
key finding. Yeah, And that turn Away study has been
like widely lauded as a gold standards buddy, because these

(38:01):
researchers figured out how to create, um, you know, an
experiment under natural conditions like the women involved in the
experiment in the study, the only essentially the only thing
that differentiated them was when if they had gone to
the abortion clinic just before the cut off or just

(38:23):
after the cut off. That was it like, there was
a follow up Okay, so but those the first two groups,
like that was the only difference. UM. There was a
follow up study that looked at the methodology that they
used and found that UM like analyzing the different participants
credit scores showed that they were like. They virtually had

(38:45):
the same credit scores. They were that similar economically education wise,
UM and that when where they diverged was when they
were either granted an abortion or turned away for an abortion.
And the turned away for abortion groups life like started
to go downhill. The UM the receiving an abortion UH
groups UH suffered a slight dip in mental health that

(39:08):
that recovered, they recovered from and then apparently over five years,
the thing that they most frequently expressed as an emotion
or thought about it was relief UM for having been
able to to get the abortion that they'd wanted. So
that's a turnaway study. Like I encourage people to go
check this out and read more about it. UH. Back

(39:29):
to Roe v. Wade, one of the crucial parts of
the decision was this legal term strict scrutiny. Uh, And
that means that if you have a uh, if it
is a right that you're deciding upon this guaranteed by
the Constitution, then any restrictions on any laws that you're
gonna put down or put forth have to be narrowly tailored, uh,

(39:50):
to only limit the right in that case where the
government thinks like we should get involved here. So that's why,
like the Second Amendment is in the Constitution that you
have right to keep in bear arms. So any restrictions place,
and this is why it's so hard to get anything
passed any on gun legislation. Any restrictions on that is

(40:10):
protected by the Second Amendment, so it has to be
narrowly tailored to serve just that case. Yeah, because the
the government has an inherent interest in protecting human life,
but they also have to protect the Second Amendments guarantee
to bear arms, right to have a gun, So they
have to figure out through their laws how to say,

(40:33):
like prevent mass shootings without infringing on people's right to
have a gun. That's why this is so hard and
so pernicious. Like you were saying, that's just gun rights.
I mean the abortion issue makes gun rights seem like
a walk in the park. Yeah, absolutely, because in in
the case of Roe v. Wade, Scotis determined that laws
restricting abortion had to be narrowly tailored um to that

(40:56):
state's compelling interests to protect the health of the mother. Uh.
And this is where we get back, kind of for
full circle to that central mess. With this quote, some
argue that the woman's right is absolute, that she is
entitled to terminate her pregnancy at whatever time and whatever way,
and for whatever reason she alone chooses. We uh sorry
with this, we do not agree. Uh. And in that

(41:18):
quote kind of sprang up this the central mess again,
which is how do we define life and how do
we define where life starts? Again there, everyone has their
own opinions. Some people say, from the second two cells
are joined together, then that's a potential human life. Uh.
Other people say that is not the case. So they

(41:41):
had to come up with what ended up being a
pretty uh initially arbitrary system of deciding this. So they
invented trimesters, which is, you know, months one through three,
uh four through six, and uh seven, eight and nine
during a pregnancy. And in terms of rov Wade, the
first trimester you could get an abortion and that it

(42:04):
was legal, and second trimester there were restrictions if your
state wanted to have them. And in the third trimester, uh,
you could ban an abortion outright if he wanted to
in your state. And the quote here is that's the
point where a fetus is quote presumably has the capability

(42:25):
of meaningful life outside the mother's womb. And what I
thought when I was hearing this was I'm surprised that
hasn't been challenged, because that would be the stickiest of
all cases if someone really wanted to to throw a
wrench in this whole idea. Is for a woman to say,

(42:45):
I've just entered my seventh month and I want to
have a c section today because you're telling me that
I have a viable, uh human being growing inside of
me at this point, and if you don't agree with me,
let's take it to court and let them decide. Huh.
That person would be the most reviled person in America

(43:07):
for trying that. But yeah, that would definitely be a
messy test case for sure. But the problem with this
trimester framework, like like we said earlier, with quickening, with
the idea of viability outside of the womb, like science
doesn't know. We just don't have that information right now,
and so the the whole idea is kind of arbitrary

(43:30):
because science is actually advanced by leaps and bounds and
its ability to keep a baby alive way earlier than
the first trimester than the third trimester, which led abortion
anti abortion UM groups to say, well, wait a minute,
if we can do that and it's before the third trimester,
we should be banning abortion earlier than that, just the

(43:52):
third trimester. And that led to a bunch of challenges
UM against Roe v. Wade because again, like we said,
it's widely considered to have been based on shaky legal foundation.
So there have been challenges a plenty. But the thing
is is, up to this point, the Supreme Court has
always overruled those challenges to large decree or at the

(44:13):
very least in every single case upheld Roe v. Wade. Uh,
and it's it's ban on full bands on abortion, that's right,
and UH Planned Parenthood versus Casey is a shining example
of that. This was the case where the Supreme Court

(44:33):
upheld UM almost all of the two Pennsylvania law that
was kind of like the Georgia law in Dovie Bolton,
where they had a series of obstacles. Um, I believe
in this case it was spousal notice, parental consent for miners,
and uh a twenty four hour waiting period. So in
this case there was not It was decided on um plurality.

(44:58):
I can't believe I can say that word. Um, there
was no majority that agreed to one specific verdict in
this case. That's a plurality. And nowlet's see there, I
go jinx myself. Um, that's what that substantive plurality of
ring quists. Oh my gosh. Um, So in this kind
of case, you don't have like a majority opinion and
the dissenting opinion. You have a bunch of opinions, or

(45:20):
you know, several opinions that are written with different parts
agreeing with different elements. Basically, yeah, and that's what happened.
Apparently four of the judges wanted to overrule Roe v.
Wad or overturn Roe v. Waight entirely in this case.
Two wanted to uphold it entirely and just throw the
Pennsylvania law out. And then three of them, Um, Sandra

(45:42):
da O'Connor, David Suter and Anthony Kennedy. I think all
of them were appointed by conservative presidents. Um basically took
the middle ground and they said, you know, um, we're
we're just gonna say, the only part of that Pennsylvania
law that should be struck down his spousal uh notification,
because that is an owners undue burden. Um. But we're

(46:02):
gonna tinker with the law a little bit. And one
of the things that they did they got rid of
the trimester framework and they instead said, um, the viability
of the fetus, as determined by a doctor should be
when abortion restrictions can begin. So you take I means
as unscientific as the trimester system was chuck, at the

(46:22):
very least a provided objective guidance for women and abortion providers. Um.
They threw that out with with Casey and replaced it
with viability of a fetus right. And they also downgraded
that strict scrutiny that we talked about, that standard that
came along with row of undue burden. So, UM, a

(46:44):
law could be unconstitutional if it placed a substantial quote
substantial obstacle in the path of a woman seeking an
abortion of a non viable fetus. Uh. End quote. And
the long and short of what all of this did
was it made it easier to put more restrictions on
abortion without overturning a row. Yeah, because, um, the Supreme

(47:06):
Court didn't say and here's what an undue burden is.
They they didn't at all, which means that it's open
to state legislatures to start passing more and more restrictive
abortion laws to test where that boundary is. And then
that's how we we got here. Casey opened the door
for that to basically say, let's find out what is

(47:27):
an undue burden. Let's see what you got state legislatures,
and they started tripping over themselves to come up with
the most restrictive abortion laws that they could um and
and fin and get them into the Supreme Court in
the hopes of eventually reaching a court that would say,
you know what, let's just let's just forget about this
whole thing. We don't think that Roe v. Wades should

(47:47):
stand at all. And that's exactly what happened last week.
Of course, it was leaked earlier in the year, but
officially the Dobbs case was rendered last week. Uh Supreme
Court overturned Roe v. Aid and said it's now up
to the states. Many states that trigger laws and effect.
Many more had laws that are soon to follow. And

(48:08):
this is just the beginning of what is to come,
which is a lot of uncertainty, including people like Mike
Pence saying, uh, even though we have long said it
should be states right, what I really think we should
do is make a federal ban. UM. People on the
pro choice sider obviously very upset uh for a lot

(48:30):
of reasons, but namely because of a few specific things. Uh,
first of which is Brett Kavanaugh. Justices Kavanaugh and Neil
Gorcichu in particular led people to believe under oath during
their confirmation hearings that this was settled law and quote
precedent upon precedent. Um. People like Alexandria Occacio Cortez have said, Um,

(48:54):
just in the last couple of days, like, hey, that's impeachable.
They were under oath. But when you look at their quotes, Uh,
they didn't say they would not overturn row. They use
that very slippery confirmation language. Um, it's misleading under oath,
but that is not going to end up being an
impeachable offense. I have the quotes, but you can you

(49:16):
can read them. There are all kinds of articles out there. Yeah,
when you read them, you're like, Nope, they didn't And
that was a huge failure on the UM Democratic senators
who couldn't bring themselves to apparently ask them directly, would
you overturn Roe v. Wade? They wouldn't answer, though. They
asked Amy Coney Barrett, they asked Clarence Thomas, and they
they literally didn't answer. So the other thing that is

(49:40):
uh that pro choice, the pro choice that is pretty
upset about is uh the idea that five of these
justices were nominated by presidents who lost the popular vote. UM.
So we're in a situation where five of the nine
justices sitting on the Supreme Court were decided by a
minority of Americans voting UM, and people like Elizabeth Warner

(50:01):
calling for the end of the electoral college as a result. Man,
wouldn't that be a gift? The third thing that is
upsetting to the pro choice side or how two of
these justices were confirmed with Mitch McConnell um not allowing
the Obama nomination Merritt Garland to even go before committee

(50:25):
because it was eight months before an election. In an
electioneer whereas Amy Coney Barrett was confirmed in the thirty
five days leading up to the election, the shortest gap
between the confirmation and election in US history. And the
third thing or is that the fourth thing four is

(50:47):
that Uh, people like Elizabeth Warren are rightfully bringing up
the notion that the Constitution was written in at a
time when women not only had no vote, but they
had no voice. And it was written entirely by men
in the eighteenth and nineteen centuries. Uh, white men who Um,

(51:11):
they believe that the Constitution is a living document. That
and those things need to be taken into account. Like
had women been able to have their hand in the Constitution,
things might have been written differently, differently. And we're in
a different world now where women do have a voice
and they do have a vote. Um. But this is
you know, this is a decades long victory for conservatives. Uh.

(51:38):
That started long long ago, Uma far farmalaxy, far far away.
Like you know when when Trump had his list, you know,
he he doesn't come up with a list, He gets
handed a list. Uh. And this list of justices, potential
justices were hand picked by the Federalist Society, an organization

(51:58):
of conservative lawyers run by or at least the list
was basically tailored by men and Leonard Leo. And you know,
I think there are people on the left that say
these justices were hand picked because they absolutely knew that
they would overturn Row and that was always a part
of the plan, and that they were coached to be

(52:22):
as vague as possible in the confirmation hearings too. What
people on the left side would fool, people like uh,
Susan Collins and uh and uh, what's his name? Mansion Mansion, Yeah,
mansion qui. So, uh, that's what has really upset people
on the pro choice side, those specific things, and that

(52:45):
just that has nothing even to do with the the
ethics and morals of abortion even well. Plus also there's
there's some other things that people are really really concerned about.
One is that the Supreme Court just basically said that
Roe v. Wade was based on that right privacy, which
is a they decided was um a legal fiction created
by activist justices back in the sixties, UM, and that

(53:08):
they overturned that. And since um not just Roe v. Wade,
but also gay marriage, the ability for a married couple
to access birth control, UM, gay sex a whole bunch
of different privacy issues are based on that same legal fiction.
Then all those things are up for grabs too. So
a lot of people are worried that this Supreme Court

(53:30):
will overturn gay marriage and all of a sudden, your
marriage will be null and void if you're a gay,
if if you're a gay couple who was married in
the United States, that's incredibly scary as well. Piled on
top of you know, the um a ban on abortion
essentially is what what's happening now or at least in
some states. And then, like you said, Mike Pence was

(53:52):
calling for a federal band and uh, that's another thing
that are making people on the pro choice side really
worried that essential personhood will be granted to fetuses. That
some state somewhere, I would guess probably in the Midwest
or the South, would come up with an abortion ban
or even a resolution that they adopt as a law

(54:14):
that says life begins at conception in the state of Oklahoma, right,
and that somebody would sue them and it would go
to the Supreme Court, and the Supreme Court would say,
you know what, Oklahoma's right, Fetuses are people and they
deserve all the constitutional protections under the law, if so
facto you could not abort any fetus anywhere at any time.

(54:37):
There is now a federal ban on abortion entirely. That's
something that's scaring um uh, proponents of choice as well. Yeah,
and you know just the kind of worms that's been
opened up now as far as enforcement and are you
going to send police after people? Are you going to
send police across state lines if people are able to
get the funds to travel across state lines to a

(54:59):
state still allows abortion. Uh, it's just the beginning of
of a lot of uncertainty for a lot of people. Well. Plus, also,
if you are pro life or your anti abortion, and
you have um a problem with the with the the
decision of Row and say that it was judicial activism,

(55:21):
you have to admit that what just happened in Dobbs
was judicial activism. It just went the opposite way. And
there's a lesson in there. Judicial activism is bad on
either way. We're supposed to leave it to Congress to
create laws that say this is the law, not the
Supreme Court to come up with laws on its own
and then overturn those same very controversial laws. Fifty years later,

(55:45):
that's not what's supposed to happen. It completely erodes any
trust in the Supreme Court and its ability to be
like the final arbiters of what's right and what's wrong
in the United States. And that's what's going on right now.
But you know, that's that's just because the shoe is
and the other foot to the other foot. There were
plenty of people who lived from nineteen seventy three onward

(56:05):
with that same view of that Supreme Court and are
perfectly happy with this Supreme Court. And that's the that's
the big problem, not just with this issue, but with America.
I feel like today is it's just all tipped for tat.
You know, yeah, maybe there should never be lifetime appointments. Oh,
definitely not. That's definitely not. That is I mean, if

(56:26):
there's one thing that's just a no brainer as far
as American law is concerned, lifetime appointments to the panel
that decides ultimately what's law and what's not in the
United States is just a bad idea. Yeah, let's have
term limits to pour at it. It's too much power.
Man's people are supposed to have that much power for

(56:49):
that long. It creates a really screwed up system. Yeah,
it definitely does, all right, since I said screwed up system,
wait a minute, Wait a minute, that's my part. I'm
always want to say it though. Anyway, since Chuck's had
screwed up system, it's time for listener mail chime. I'm

(57:11):
gonna end this on a lighter note. Uh, that might
bring a smile to people's faces. Hey guys, a few
years ago, on one of your numerous and wonderful tangents,
used the phrase don't yuck someone's yum. I love how
simple this was and summed up in ethos of being
kind of people no matter their beliefs and opinions. Fast
forward and now, and I've used this simple saying when

(57:31):
bringing up my two daughters, who have just turned five
and three, as a way of teaching them manners and kindness.
Yesterday I had a message from my three year old
childminder saying that my daughter had told another child not
to yuck someone's young and how great that was. She
liked it so much, she's going to make it a
saying that she used when teaching the children that she
looks after going forward. Uh. It was then passed on

(57:54):
to the parents of the other kids who all reported
back that they would also be using it in passing
on nice Uh. And by the way, Matt, we didn't
invent that. I believe that could from a listener, right, yep, definitely,
So hats off to the anonymous listener who that's right. Uh.
Some people might wish you stay on topic for but
I'm here to tell you that even you're off the cuff,

(58:15):
comments can educate others, and you can be safe in
the knowledge that you've helped in still good manners and
a growing number of children in Berkshire, England. Oh wow,
I wasn't expecting that Barkshire even give me a pronunciation.
Keep night, so you said sheer right, sheer, Like I
said Burke, not bark Barkshire. So it's Barkshire, but it's

(58:36):
spelled Berkshire. Okay, you get my drift. Yeah. Yeah, that's
why I'm gonna start calling up state in New York. Now,
barks here, let's go weekend in the bark shears there,
let's do it. Uh. That's from Matt Walford. Thank you, Matt.
That was very kind of you to let us know
we're glad that we're enacting really positive change. In your
kids schools and uh that was kind, so thanks. Uh

(59:00):
keep it up. If you want to be like Matt
and get in touch with us and tell us something
kind that we helped to you. We love to hear
that stuff. You can send us an email to stuff
podcast did i heart radio dot com. Stuff you Should
Know is a production of I heart Radio. For more
podcasts my heart Radio, visit the i heart Radio app,

(59:21):
Apple Podcasts, or wherever you listen to your favorite shows.

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