In 1969, Norma McCorvey became pregnant with her third child and wanted an abortion… however McCorvey lived in Texas where abortion was illegal unless the woman’s life was in danger. This was when McCorvey’s attorneys filed a lawsuit in the U.S Federal Court saying that the Dallas County law was unconstitutional. The man that defended Dallas County, Henry Wade, was a 36 year veteran of the District Attorney’s office and a registered democrat who supported a woman’s right to choose.
However, it was his job, regardless of personal view, to uphold Dallas County and Texas state law, so he argued for the county against McCorvey. The case was eventually appealed to the Supreme Court, when McCorvey went under the legal pseudonym “Jane Roe''. Hence, creating the case of “Roe v Wade''.
Fast forward several years later, The Supreme Court announced a 7 to 2 decision favoring Roe on January 22, 1973. Defending that the “Due Process Clause” of the 14th amendment in the US Constitution provides a fundamental “right to privacy”, which therefore protected a woman’s right to abortion.
Jane Roe, or who we know now was Norma McCorvery, couldn’t legally get an abortion in 1969 and thus had to, against her will, carry the child to birth. After which, she gave the child up for adoption.
In today’s episode, we will first learn about how the words and later the actions of a political candidate changed the direction of the US Supreme Court and influenced the June 24th decision to overturn Roe v Wade. We are then going to pivot to discuss how this controversial 5 to 4 decision to overturn Roe has been explained by those Supreme Court justices on both sides of the argument. Thus cutting through partisan politics and hearing the words used in this groundbreaking legal decision.
Before creating this episode I, like many of you, didn’t know the full history of Roe v Wade. I knew that it was a federal ruling that protected a woman’s right to have an abortion, but I didn’t know much more than that. I certainly didn’t know who Norma McCovery or Henry Wade was. Or how they were both bound to uphold a law that neither agreed with. But, having now learned more about the actual story I must admit that I empathize with both Norma and Henry on what was certainly a difficult time in their lives. So, now that we’ve learned the history of this decision, let’s look at some more recent history.
On May 2nd, 2022 a leak of the Supreme Court potentially overturning Roe v Wade after it being settled law for almost 50 years shocked many Americans. However, the path towards the high court making this groundbreaking ruling began 6 years earlier when a political outsider was asked a simple question during a debate. His words turned into action, and the consequences are now being felt.
During the final 2016 Presidential Debate between Donald Trump and Hillary Clinton, when candidate Trump was asked “Do you want the court, including the justices you will name, to overturn Roe v Wade?”, he responded 2016 Presidential Debate Trump Statement [0:45- 1:02]
Which is exactly what happened. After the death of Antonin Scalia in 2017, President Trump appointed conservative Neil Gorsuch. When Anthony Kennedy retired in 2018, Trump appointed conservative justice Brett Kavanaugh. And after the death of Ruth Bader Ginsburg in 2020, Trump appointed the conservative Amy Coney Barrett. This added 3 conservative justices to the Supreme Court who all voted in the overturning of Roe vs Wade, which is precisely what 2016 presidential candidate Donald Trump said would happen if he were to become president.
After the leaked document and the final ruling on June 24th, it was hard to believe. Not only hard to believe that the court would overturn the law, but rather a politician told us what he would do if given the chance, and then followed through on his words.
Now let’s switch to the actual Supreme Court ruling. A majority vote on a 9 person judiciary cannot be accomplished by only three people. Conservatives Clarence Thomas and Samuel A. Alito voted along with the three justices appointed by Trump to overturn Roe. While the liberal justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagen, and Justice John G. Roberts voted to uphold the court’s 1973 ruling. Making the June of 2022 ruling to overturn Roe v Wade a 5 to 4 decision split down political lines.
But let’s look towards why conservative justices wanted to overturn this ruling. In the draft opinion that was leaked in early May, Conservative Justice Samuel Alito wrote that “Abortion presents a profound moral question,” “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” and that Roe is an “abuse of judicial authority.”
Meaning that, while the original 1973 ruling of Roe vs Wade claimed that the 14th amendment of the Constitution provides a “right to privacy”, the Constitution does not directly prohibit states making a decision on the access to abortion. So, this issue could challenge judicial authority in states.
While 4 judges voted to uphold Roe, only 3 of which issued a formal joint dissent. In their dissent, Justices Breyer, Sotomayor, and Kagen wrote that “Yesterday, the Constitution guaranteed a woman confronted with an unplanned pregnancy could make her own decision. But today, that is no longer.”
The justices say “that is no longer” because the overturning of Roe gives individual states the authority to make decisions on abortion rights and laws. 13 of which so far have decided to completely ban the use of abortion. Removing most of the national authority on this issue.
If words have consequences, then we must also look to see what those early consequences have been. To do so, let’s look at how some states are handling the decision. Greg Abbott, the republican governor of Texas described that “Texas will always fight for the innocent unborn, and I will continue working with the Texas legislature and all Texans to save every child from the ravages of abortion and help our expectant mothers in need.”
The urgencing behind Abbott’s words were emphasised on this day by his decision to shut down abortion clinics only hours after the breaking news of Roe being overturned. He is also working to “help expectant mothers in need” by giving $100 million toward Texas’ Alternatives to Abortion program which provides counseling, care coordination, and material assistance (like car seats and diapers) to mothers in need.
The day after Roe was overturned, democratic Representative of New York, Alexandria Ocasio-Cortez gave a speech where she said: AOC reaction [0:05- 0:11]
By saying “We have woken up with less rights than we had yesterday” Representative Ocasio-Cortez means the women who could lose their right to have an abortion in certain states. Also, this ruling could lead to less individual rights because it can violate the right to privacy which is outlined in the Constitution.
However, while states can decide to limit or completely ban abortion, there are still national actions that can take place. On July 8, 2022, President Biden signed an executive order on abortion access. In his speech for this decision he states: President Biden Executive Order [14:04- 14:24]
This Executive Order also plans to protect the access to contraceptives, which face possible bans in some states as well. This is because the overturning of Roe gives states the decision on how to handle abortion laws and many politicians believe that contraceptives are just another form of preventing life.
But what does this all mean for the future? What can we do? Well, we can express our civic duty through the use of protest and contacting our state and congressional representatives to express our views and feelings. And whether you’re already registered to vote or will be soon, you can vote in congressional elections and elect the people who will represent your beliefs in state government, as well as the House of Representatives and the Senate.
Thank you for joining me on this episode! Subscribe and tune into the next episode where we will break down the differences between listening and hearing.