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Several states have enacted
major antiabortion laws
in the hope of overturning Roe v. Wade
which gives women a constitutional
right to an abortion.
What are all of these laws about?
What does Roe actually say
about the right to an abortion
and the right to privacy?
And where does Planned Parenthood v. Casey
fit into this picture?
In this Real Law Review
I'm going to try to bring some clarity
to this charged and fluid situation.
To get there, I'm going to talk
about the history of
women's rights in America,
discuss what has happened recently
in Georgia, Alabama, and Missouri
and the laws that they passed,
and explain what could be
ahead for the Supreme Court.
(orchestral music)
Hey LegalEagles, it's time
to think like a lawyer.
Look, I know that this
is a hot button issue.
I have very strong
personal beliefs about this
and I'm sure you do too.
I'm going to try to do my best
to separate out my personal opinions
because the law, whether you
accept the outcome or not,
is fairly cut and dry.
As always, Stella
appreciates and encourages
a robust discussion,
but Stella will bring down the ban gavel
on anyone that is rude or
disrespectful in the comments.
All right, let's get straight to it.
What is up with all of
these new abortion laws
that are cropping up mainly
in the America South?
Well, right now, abortion
is legal in all 50 states
but legislatures in
Missouri, Mississippi, Ohio,
Georgia, Alabama, Louisiana, and others
are now racing to see who can pass
the most draconian
antiabortion laws in America.
But there is method to this madness.
Georgia, Mississippi, Ohio, and Alabama
have enacted laws making it
illegal to terminate a pregnancy
once electrical activity in
the fetal heart is detected.
These are the so-called
fetal heartbeat bills.
Now, I recognize that
this is a charged term,
but it seems to be popularly adopted
so I'm going to use it
in this particular video.
Doctors say that this electrical activity
can happen as early as six
weeks after fertilization.
Missouri passed a law
criminalizing abortion
starting at around eight weeks.
Under this law doctors will get
a prison sentence of three to five years
but women will not be prosecuted.
Georgia's law, which goes
into effect January 1st,
bans abortion once a
heartbeat is detected.
It allows for exceptions in
the case of rape or incest,
but only if the woman
files a police report.
Alabama's law contains no exception
for pregnancies that were the
result of a rape or incest.
Doctors performing
abortions under this law
face 99 years in prison.
Pundits on both sides have recognized
likely unintended consequences
and nightmare scenarios.
You can imagine the sad case
of a teenage girl who becomes pregnant
after she is raped by a father or uncle.
In Georgia, that teen would
need to figure out a way
to report her father's crime to the police
in order to have an abortion.
If she had an abortion anyway,
she could face life in prison.
In Alabama, the doctor
would also get life in jail.
The new antiabortion laws
are intended to have a chilling effect
on the rights of women,
physicians, and others.
As what tends to happen
with the threat of criminal prosecution,
undoubtedly some women will be prevented
from terminating their pregnancy.
As we'll see, the timing of the bills
and the burden placed on women
is of great constitutional importance.
The lawmakers who drafted these laws
acknowledge that the laws violate
the current Supreme Court precedent
but they decided to enact them
specifically to test current
Supreme Court precedent.
- [Eric] If this law goes
into effect in Alabama
and it says abortion's a crime,
that is in conflict with
Roe's interpretation
and application of the US Constitution,
so the law is unconstitutional.
Once it has passed, before
it can go into effect,
a lawsuit is expected to be filed.
- [Man] You're expecting to be sued?
- [Eric] Of course.
- [Woman] He passes a bill that he knows
and they have intentionally
designed to be unconstitutional.
And the Planned Parenthoods
and the ACLUs of the world,
they have to respond.
- This of course begs the
very important question.
How did we get here?
Well, let's start with the
very beginning of this country.
After America gained its independence,
the law largely remained silent
about contraception and abortion.
Abortion was legal from
about 1776 until 1860.
Of course, things started to
change after the Civil War.
This was the beginning
of the Victorian Era
where preachers and
politicians started arguing
that sexual mores needed
to become more restrictive.
Birth control and abortion
were both two of their targets
along with anything that implied
sex might be a fun activity to engage in.
Anti-sex crusaders really
got going in the 1870s
when the US Postmaster
General Anthony Comstock
used the power of his office to enact laws
that targeted anything considered obscene.
Comstock thought the government
had the power and the duty
to restrict what you could
send through the mail
or say or read,
specially when it came
to sex and procreation.
During Comstock's 42 years
at the US Postal Service,
he successfully advocated
for laws that banned
everything from masturbation
to contraception.
These Comstock Laws, as
they came to be known,
were passed in the federal government
and about half the states in America.
Comstock Laws made it
a crime to give away,
sell or loan out any item
considered, quote, "obscene,"
or anything that could be used
for contraception or abortion.
Comstock Laws made it
illegal to use, quote,
"any drug, medicinal
article, or instrument
"for the purpose of
preventing conception."
Violators could be, quote,
"fined not less than $50
"or imprisoned not less than 60 days
"nor more than one year or be
both fined and imprisoned."
Under Comstock Laws,
physicians were banned
from even printing a pamphlet
discussing family planning.
As part of this anti-family
planning regime,
abortion become illegal in
most states by the early 1920s.
Now, of course, that didn't mean
that there were no abortions performed,
but they were often performed in secret
with wide disparities between
those who could find a doctor
to perform the procedure in secret
and those who were left to try
to perform the procedure themselves
without any access to medical treatment.
In 1930 alone it is reported
that 2,700 women died in the United States
from abortion-related procedures.
While rarely enforced to
the full extent possible,
Comstock Laws were still
on the books until 1965
when the Supreme Court
decided the landmark case
of Griswold v. Connecticut.
In 1965, Estelle Griswold was convicted
for violating the
Connecticut Comstock Laws
that prohibited anyone from
providing contraception
or information about contraception.
Griswold used her medical clinic
to provide birth control to her patients.
William Buxton, a Yale
Medical School professor,
was also convicted for providing
advice to married couples
about how to avoid pregnancy.
Their convictions were upheld on appeal
and they took their case
to the US Supreme Court.
Now, some of you may be wondering
how the government could interfere
with a couple's private
decision about contraceptives
to begin with.
Well, the Constitution
enumerates individual rights
through the Bill of Rights.
The Bill of Rights protects
things like freedom of speech,
the right to due process under the law,
and the right to be free
of unreasonable searches and seizures.
The word privacy is not
mentioned in the Bill of Rights
or anywhere else in the Constitution.
So, in the mid 20th
century there had not been
any significant case law
allowing people personal
freedom over their sexual lives.
However, the Constitution
does not define every freedom
that it grants to the individual.
It has been argued that privacy is implied
in many of the other rights the
Constitution does guarantee.
The Fourth Amendment, for instance,
gives you a right to be free
from unreasonable searches and seizures.
That right is rooted in
your right to privacy
in your own home and body.
In the 1920s, the Supreme Court
interpreted the Constitution
to expand individual rights.
For example, in a case
involving whether a teacher
could teach children
in the German language,
the Court ruled that
the Due Process Clause
protects a person's right
to marry, have children,
and to make decisions about
that child's upbringing.
Using these ideas, Griswold and Buxton
framed their challenge
to the Connecticut law
as a broad question about privacy itself.
The Supreme Court agreed
and the Court found that the state law
which banned distribution
of contraceptives
to be unconstitutional
because it infringed on the
general right of marital privacy
that was implied in the Constitution.
All of the Court recognized
that the right to privacy
is not mentioned explicitly
in the Constitution
or the Bill of Rights.
The Supreme Court said that
you could infer it from the,
quote, "penumbras and
emanations of the Constitution."
In other words, the shadows and intentions
of the rights that are expressly laid out
in the Bill of Rights.
Justice William Douglas
held that the privacy right
emanated from the Bill of Rights.
He cited the German
language case as an example
of how the First Amendment
prevents the government
from limiting the spectrum
of available knowledge.
And that same right also
meant that Griswold and Buxton
were able to share their
contraceptive information
with their patients.
In addition, the Third
Amendment's prohibition
of forced quartering of troops,
the Fourth Amendment's freedom
from unreasonable searches and seizures,
and the Fifth Amendment's right
to avoid self-incrimination
all describe different facets
or, quote, "zones of privacy."
Justice Goldberg's concurring
opinion in Griswold
also found the general right to privacy
in the text of the Ninth
Amendment which states, quote,
"The enumeration in the
Constitution of certain rights
"shall not be construed
to deny or disparage
"others retained by the people."
Many Framers of the
Constitution, though not all,
believed it was impractical
to list every freedom
that should be protected
by the Constitution itself.
James Madison drafted the Ninth Amendment
to create a safety net for liberties
that are not enumerated in
the Constitution expressly.
And Justice Goldberg
wrote that the, quote,
"Framers of the Constitution believed
"that there are additional
fundamental rights
"protected from governmental infringement
"which exist alongside
those fundamental rights
"specifically mentioned in the first eight
"constitutional amendments."
On that basis, Goldberg concluded
that the right to privacy is therefore
one of the fundamental rights
guaranteed though not expressly mentioned
in the Ninth Amendment.
So, at base, the Court's
decision in Griswold
gave married couples the right
to stop governmental intrusion
into their most intimate
areas of their life,
their sexual and procreative life.
In 1972, in Eisenstadt v. Baird,
the Court applied the Griswold case
to unmarried couples as well.
Former medical student
William Baird was arrested
for handing out contraceptives
to unmarried persons
in violation of the
Massachusetts state law.
After Baird was convicted,
he appealed his case to the Supreme Court
which struck down the law and
overturned Baird's conviction.
The Court ruled that the right to privacy
they described in Griswold
wasn't just limited to married people.
After all, a married couple is simply
an association of two
individuals and, quote,
"if the right to privacy means anything,
"it is the right of the individual,
"married or single,
"to be free from unwanted
governmental intrusion
"into matters so fundamentally
affecting a person
"as the decision whether
to bear or beget a child."
The Court also found that
denying unmarried people
the right to use contraception
while allowing married people to do so
would violate the Fourteenth Amendment's
Equal Protection Clause.
It's important to note that
the Equal Protection Clause
of the Fourteenth Amendment
prevents the government
from arbitrarily treating
classes of people differently.
It was argued that there
was no legitimate reason
to treat married and
unmarried people differently
for the purposes of contraception law.
And in the context of the
current abortion debate,
many attorneys believe that
the Equal Protection Clause
is the strongest argument
for the right to abortion
because child-bearing
and laws that specially
concern child-bearing
have a dramatically
different effect on women
compared to men.
One year later, in 1973,
the Court decided the
famous case of Roe v. Wade,
which struck down a Texas law
that criminalized abortion.
In that case, Jane Roe,
which was a pseudonym,
was an unmarried woman who
was gang-raped in Texas.
When she found out that she was pregnant,
she tried to get an abortion
but abortion was illegal in Texas
except to save the life of the mother.
She, as well as several other plaintiffs,
including a physician,
challenged the Texas law.
They alleged it violated
the zone of personal privacy
protected by the First,
Fourth, Fifth, Ninth,
and Fourteenth Amendments.
Following in the steps of
Griswold v. Connecticut,
the Supreme Court in a
seven-to-two majority vote
held that the law was in
fact unconstitutional.
State laws banning abortion
except to save the woman's life
violated the Due Process Clause
of the Fourteenth Amendment
which protected the right to privacy.
The Court held that the right to privacy
includes a woman's qualified right
to terminate her pregnancy.
The Court qualified
this holding by finding
that although the
government cannot override
the woman's right to
terminate a pregnancy,
it does have legitimate interest
in protecting both pregnant women's health
and the potentiality of human life.
To balance the competing
interest of the woman's life
and the potential for human life,
the Court said that the right of the woman
is the strongest during
the first trimester
and diminishes as the pregnancy continues
through the second and third trimesters.
Roe v. Wade made three key rulings.
First, it held that a state
could not outlaw abortion
during the first trimester at all.
Second, it said that the
state could regulate abortion
during the second
trimester of the pregnancy
but only to protect a woman's health.
And third, it ruled that the
state could prohibit abortion
during the third trimester,
but not if the life or health
of the mother was at risk.
Roe also set the standard
for reviewing future laws
that implicated access to abortion.
Roe states the courts
must review such laws
under, quote, "strict scrutiny,"
which is the highest
level of judicial review.
To pass strict scrutiny,
the legislator has to pass a law
to further a demonstrable, quote,
"compelling governmental interest,"
and it must have narrowly
tailored that law
to achieve that very compelling interest.
This is a very, very high burden.
In fact, this is the same
standard the courts use
when a law restricts
the freedom of speech.
This is also a very important
lesson in constitutional law.
Because sometimes the
most important decision
in a Supreme Court's opinion
is the mundane decision as
to which standard to use.
It's going to be much
harder for laws to pass
if you use strict scrutiny.
Which brings us to the most recent case
of Planned Parenthood v. Casey.
While Roe v. Wade gets most
of the popular attention,
it's actually Casey that has
been the number one target
of antiabortion activists.
Those who opposed abortion did not go away
after Roe v. Wade.
Instead, legislators
used the state's power,
which Roe explicitly approves of,
to regulate abortion by creating laws
that made it harder for
women to get abortions.
So, the case of Planned
Parenthood v. Casey
dealt with the State of Pennsylvania
which passed the Abortion
Control Act of 1992
which had four regulations
that restricted abortion.
Spousal notification,
parental consent when
the woman was a minor,
the 24-hour waiting period,
and a mandatory disclosure
of certain information.
In 1992, abortion advocates sued the state
alleging that these new
regulations violated Roe v. Wade.
Now, before we talk about the outcome
in Planned Parenthood v. Casey,
first a note about stare decisis.
Stare decisis is a legal doctrine
that theoretically obligates courts
to follow historical decisions
when ruling on a new case.
This is also what's referred to
as deferring to precedent.
Courts are generally encouraged
to follow their prior decisions
or similar decisions of other courts
in their geographical area.
Since the Supreme Court is
the highest court in America,
all lower courts are
bound by its decisions.
But all decisions of the Supreme Court
are co-equal to each other,
so theoretically there's nothing
that stops the Supreme
Court from changing its mind
year after year.
But the doctrine of stare decisis
promotes continuity over time.
It calls for judicial restraint,
suggesting the future Supreme Courts
to carefully craft ruling
that respect precedent
even if they tweak the
understanding of the law.
So, with the doctrine of
stare decisis in mind,
the Court decided to make
Roe v. Wade more workable
rather than just overruling
its central holding
that women have the right
to terminate a pregnancy.
So, in the Casey decision,
the Supreme Court actually upheld
all of the provisions
in the Pennsylvania bill
except the one that forced a woman
to notify her spouse in order
to obtain a legal abortion.
And at the same time,
the five-to-four majority
took this opportunity
to re-work the trimester framework of Roe.
The opinion recognized that
women do in fact have the right
to terminate their
pregnancy at certain times
but also overruled Roe's reliance
on the trimester framework.
Instead, the Court emphasized
that the key turning point in a pregnancy
was when the fetus was viable,
meaning able to live outside
of the mother's womb.
Medical advancements had meant
that fetuses could survive
as early as 24 weeks
rather than at 28 weeks
which had been the underpinning
of the Roe v. Wade decision.
As a result, the Court drew
a new line on the continuum
allowing for increased state interest
when a fetus reaches viability.
Before viability, the state
can have some interest
in fetal health
as long as it does not
place an undue burden
on the woman's right to an abortion.
An undue burden in this context
is one that has the, quote,
"purpose or effect of placing
a substantial obstacle
"in the path of a woman
seeking an abortion
"of a nonviable fetus."
After viability, the state can regulate
and even outlaw abortion.
Again, however, there is an exception.
The states cannot outlaw abortion
if it is necessary for the preservation
of the life or health of the mother.
The Supreme Court analyzed
the four Pennsylvania
restrictions at issue
and found that only the
one requiring the woman
to notify the father was an undue burden.
If women could only have an abortion
after telling their sexual partner,
it would give the man substantial power
over the woman's decision,
which in some situations could even lead
to a spousal or child abuse.
At the same time, Casey held
that states could make an effort
to convince women not to have an abortion
by doing everything from making
the woman have an ultrasound
to offering her mandatory counseling.
But the state could not prohibit women
from terminating a pregnancy.
So, the essential holding of Casey
and the current law of the land
is that states cannot ban
abortion before 24 weeks
and laws restricting
abortion should be evaluated
under the more lenient
undue burden standard
rather than a strict scrutiny analysis.
So, now what?
The new breed of antiabortion laws
ignore the Casey framework
about undue burdens
and instead the laws
simply deny the existence
of a constitutional privacy right
that allows women to
make reproductive choices
without governmental interference.
The bill passed by Alabama's
lawmakers, for example,
contains language stating
that "abortion isn't a medical procedure,
"it's a genocide on par with
crimes against humanity."
The state's new law doesn't
seek to throw women in jail
but instead it takes aim at the doctors.
Despite the protections of Roe and Casey
and the affirmation that there must be
an exception in cases where
the woman's life is in danger,
Alabama carves out only
a very narrow exception
for the life of the mother
if there is medical proof
that the woman faces,
quote, "a serious risk
"of substantial physical impairment
"of a major bodily function."
Would any doctor attempt to
justify their medical judgment
that an abortion is necessary
when they could be convicted of a felony
and face up to 99 years in prison?
Meanwhile, in Georgia,
lawmakers made a different determination.
Their law allows women to be
prosecuted for an abortion
whether it is performed by
a doctor or self-induced.
Women can get life imprisonment
or even the death penalty.
Georgia's law stops doctors
from performing an abortion
after they can detect cardiac activity,
which happens around six weeks.
However, many women aren't even
aware that they are pregnant
after just six weeks,
which renders the law pretty close
to a total ban on abortion
which directly violates Roe and Casey.
Going even further,
Georgia's law grants
fetuses full personhood,
even stating that they are to be included
in the state's census.
This legal personhood's
status is the basis
for one of Georgia's most
draconian regulations.
The limit on a woman's
right to leave the state
to have an abortion.
If the woman goes to a state
where abortion was fully legal,
the woman could be prosecuted
for conspiracy to murder
which carries a minimum 10-year sentence.
If someone drives the woman out of state
or otherwise helps her,
they too could be charged with
conspiracy to commit murder.
Of course, these new laws
are in direct conflict
with constitutional precedent
because they make abortion
during the first 24 weeks of
pregnancy completely illegal.
The laws ignore the viability standard
and instead pinpoint the
detection of a fetal heartbeat
as the time when the door
to the abortion clinic
must be slammed shut.
They also ignore the
Roe and Casey holdings
that state they must make an exception
for when the life or health
of the mother is at stake.
Instead, these laws come very close
to outlawing abortion no
matter what and no matter when.
So, what is the Supreme
Court likely to do?
Well, in recent years,
circuit courts have
carefully followed Casey
and struck down laws
placing an undue burden
on the woman's reproductive choices.
For example, several years ago
Idaho banned abortions at 20
weeks after fertilization.
This directly violated Casey's
24-week viability rule.
Idaho regulations also required
all second trimester abortions
to happen in hospitals
and placed so many safety
regulations on clinics
that it made it nearly impossible
for clinics to stay open.
The legal regime made
obtaining legal abortion
a minefield for women like
Jennie Linn McCormack.
McCormack was an Idaho resident
who wanted to terminate her pregnancy
but she could not afford to travel
to the closest abortion
clinic in Salt Lake City
where she would have to pay
$2,000 for the procedure.
Taking up McCormack's case,
the Ninth Circuit Court of Appeals
found that Planned Parenthood v. Casey
did not allow the state
to criminalize the act
of terminating a 20-week-old pregnancy.
The court also found that it
was not medically necessarily
for abortions to take place at a hospital.
As for the safety regulations,
Idaho's clinic regulations
included things like
being properly staffed
or making satisfactory
arrangements with hospitals.
These terms were so vague
that they gave prosecutors
the ability to make up
their own definitions
and then to shut down the clinics.
The Ninth Circuit followed
in the footsteps of Casey
and demonstrates the
concept of stare decisis.
However, the justices on
the current Supreme Court
have a very different
view of stare decisis.
Chief Justice Roberts, Justices
Thomas, Alito, and Gorsuch
have been willing to overturn precedent
when they disagree with
it and have a majority.
Even when they don't have a majority,
these justices have often written opinions
advocating for departure from
longstanding legal precedents.
The most recent significant
overruling of prior precedent
came in May of 2019
after Justice Kavanaugh joined the Court.
The conservative justices
overturned a precedent
which had stood for 50 years.
The case involved the jurisdiction
of where states could be sued.
Justice Thomas wrote that the Court
could ignore principles of stare decisis
when they believed that the
prior ruling is erroneous.
In a dissent in that case,
Justice Breyer, who wrote the
majority opinion in Casey,
issued a warning about the willingness
of his conservative colleagues
to disregard precedent,
stating, "It is far more
dangerous to overrule decision
"only because five
members of a later Court
"came to agree with earlier dissenters
"on a difficult legal question.
"The majority has surrendered
"to the temptation to overrule Hall
"even though it is a
well-reasoned decision
"that has caused no
serious practical problems
"in the four decades since we decided it.
"Today's decision can
only cause one to wonder
"which cases the Court
will overrule next."
In other words, Breyer is saying
that today's conservative justices
will sweep aside any rulings
that they disagree with.
On the other hand, there is no guarantee
that the Supreme Court will hear a case
that presents the opportunity
to revisit Roe and Casey.
The Supreme Court itself
decides which cases
it's going to take up and hear.
There is no guarantee
that any particular case
will ever be decided in the Supreme Court.
These new antiabortion laws
will definitely be struck
down in lower courts,
which must follow current
Supreme Court precedent.
But the Supreme Court only hears
the cases that it wants to hear.
This is a process called
certiorari, or cert for short.
For example, then Indiana
Governor Mike Pence
signed the law making it illegal for women
to terminate pregnancy
for various reasons.
A federal appeal's court blocked the law
and Indiana appealed.
The Supreme Court has now
reviewed the case 14 times
without deciding whether
it would take it up or not.
That is, without granting
cert to hear the case.
So, there's no question
that the antiabortion laws
that were passed in 2019
definitely do not pass
constitutional muster.
But that's only if we are
following Roe and Casey.
But the Supreme Court has
changed in recent years
and many legal scholars believe
that there could be
enough votes on the Court
to throw out both Casey and Roe.
The fact that the Court has yet to decide
whether to hear the
Indiana case also indicates
that it may be debating or revising
its approach to abortion.
So, what will the justices decide
when these cases inevitably
reach the Supreme Court?
We have no idea.
There's no witty remark
or pithy segue today.
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