[SOUND] This sixth right that I discussed that's protected under privacy is the right to purchase and use contraceptives. The seventh that I want to discuss is closely related but far more controversial, that's the right to abortion. Once the Supreme Court said that the right to privacy safeguards the right of every individual, married or single, to choose or to bear or beget a child. And evidently, there were going to be lawsuits coming before the Supreme Court challenging state laws prohibiting abortion. Few Supreme Court case in history have been as controversial where as controversial for such a long period of time has the right to abortion. Let me talk about the history with regard to the right to abortion and then also the law as the Supreme Court had articulated with regard to abortion rights. The key case as everyone knows is Roe v Wade decided by the Supreme Court in 1973. The context in 1973 was that four states had changed their laws to allow abortion on demand in the early stages of pregnancy. About half of the rest of the states prohibited all abortions, even the instance of rape or incest even if there's medically desirable for the mother. The other half of the states had adapted what's called the model penal code something to put out by the American Law Institute approach to abortion. And it prohibited abortion but in exception in cases of rape or incest or in exception instances where it was needed to protect the health of the woman. Roe v Wade involved a Texas law that prohibited abortion, involved a women in Texas, forever known as Jane Roe, who filed a lawsuit. She filed her lawsuit in 1970, she was in her first trimester of pregnancy and decided to have an abortion. The United States Supreme Court in a 7-2 decision declared the Texas statue unconstitutional. And the Supreme Court held that abortion is a fundamental right protecting the liberty of the due process clause. Justice Harry Blackmun wrote the opinion for the court that said there are only two dissenters. And these were then Justice William Rehnquist and Justice Byron White. We tend to forget that Roe v Wade was not a close boat in the court, it was seven to two. Justice Blackmun that righting for the court said the right to procreate or not procreate. The right to choose whether to bear or beget a child is safeguarded under the liberty of the due process clause. The court said that state laws that prohibit abortion deny the women the ability to make this choice. Justice Blackmun said the court isn't going to answer the difficult question of when human life begins. The court said that women should be able to choose with physicians whether to terminate their pregnancy. The court said up to the point of viability, the time at which the fetus can survive outside the womb. A woman has a right to an abortion after viability, then the state if it wants can prohibit abortion except when necessary to protect the life or health of the woman. Roe divided pregnancy into three trimesters then of about equal length. During the first trimester, the government could not prohibit abortion. The government could only regulate abortion in the way it regulated other medical procedures, such as requiring they'd be performed by a licensed physician. During the second trimester of pregnancy, again, the government could not prohibit abortion. But the government would have more latitude to regulate abortion, to make sure that the health of the woman was protected. In the third trimester of pregnancy, then the government could prohibit abortions unless an abortion was needed to protect the woman's life or health. Roe v Wade thus changed the law in 46 states in the country. Critics of Roe v Wade say there's nothing in the Constitution about the right to abortion, this was inappropriate for the Supreme Court. It's a matter that should be left to the legislature of each state. The defenders of Roe v Wade have come forward and said, but the Supreme Court has said that the right to privacy includes a right to choose whatever child. Laws that prohibit abortion infringe a woman's right to privacy. The government should be able to do so only if it meets strict scrutiny and this is met only after viability. After 1973, the composition of the Supreme Court began to change. By 1992, when the next major abortion case came to the Supreme Court, many thought there's a majority of the justices who were ready and willing to overrule Roe v Wade. The case was Planned Parenthood v Casey. It involved a Pennsylvania law that regulated many aspects of abortion. For instance, it said that before a married woman could have an abortion, notice would have to be given to her husband. It had requirements that said before a woman can have an abortion, there'd have to be a 24-hour waiting period. Where she was given the opportunity that the requirement of reflecting before having the abortion. The Pennsylvania law had reporting requirements. The Reagan administration then the Bush administration that followed it strongly opposed abortion rights. And so in a case in 1988, 89, the Reagan administration filed the brief urging the Supreme Court to overrule Roe v Wade. And in Planned Parenthood v Casey decided in June of 1982 the Bush administration filed a brief urging the Supreme Court to overrule Roe v Wade. We now know that when the justices first voted in their conference after Roe v Wade, the vote was five to four to overrule Roe. After he left the court then passed away, Justice Harry Blackmun made all of his papers available. Linda Greenhouse, now a Yale Law Professor, before that the Supreme Court Correspondent for the New York Times, went through the papers. And she found in Blackmun's memos, confirmation of what had been reported that the initial vote was 5-4 to overrule Roe. But, after the initial vote, before the case came down, Justice Kennedy changed his mind. Justice Kennedy, who had been part of the conservative majority to overrule Roe Decided to vote with a more liberal justices to affirm Roe versus Wade, it's notable that we came that close to overruling Roe. In Planned Parenthood versus Casey, the supreme court, in a five to four decision, reaffirmed Roe versus Wade. The government prior to viability cannot prohibit abortion. But the court in Planned Parenthood versus Casey, significantly changed the law with regard to abortion. No longer is strict scrutiny used with regard to the right to abortion? Roe versus Wade used strict scrutiny. Strict scrutiny is used for all these other rights I've talked about under privacy, the right to marry, the right to procreate, the right to custody, the right to keep the family together, the right of parents to control the upbringing of children, the right to purchase news contraceptives. Any government law regulating those, has to meet strict scrutiny but no longer with a guard to abortion. The Supreme Court in Casey said, prior to viability the government can regulate abortion, as long as it does not place an undue burden on the right. In other words, the so called Undue Burden Test has replaced strict scrutiny in evaluating government regulation of pre-viability abortions. The courts never defined, The Undue Burden Test with any precision. But the court has said, if the government is acting with the purpose or the effect of interfering with the right to abortion, that's an undue burden. But the court has also said, the government may act to encourage child birth over abortion. The courts ruled on some specifics with regard to The Undue Burden Test. And I'll talk about them for example, the Supreme Court has said, a 24-hour waiting period for abortions is constitutional, it's not an undue burden. The Supreme Court has said a requirement that abortions be performed by licensed physicians is not an undue burden, it's constitutional. Casey reaffirmed Roe that after viability, the time which the fetus can survive outside the womb. The government can prohibit abortion except, when necessary to protect the woman's life or health. Notice the court and Casey discards the trimester distinctions. The court said, the reality of neonatal advances is that there is no longer pregnancy in three even trimesters, no longer is viability just the last three months. Medical advances now would put viability at about the 22nd and 23rd week of pregnancy. So the court in Casey reaffirms the right to abortion, but changes the law with regard to abortion. Well, what is the law with regard to abortion? I've already told you the basics, prior to viability, the government cannot prohibit abortion. After viability, the government can prohibit abortion, except when necessary to protect the woman's life or health. Let me tell you more of the specifics with regard to abortion. One interesting thing with regard to the law here, is the Supreme Court has held, that the government never has to pay or provide public facilities, public hospitals for performing an abortion. Imagine that a state and its Medicaid program says, that it will pay for all medical procedures but not for abortion or imagine a city that has an ordinance that says, no abortions at public hospitals, is this constitutional? The Supreme Court repeatedly has said, such laws are constitutional. The court has said, the government never is constitutionally required to pay for abortion, it's never required by abortions at public hospitals. The court has said, denial of funding doesn't put the woman in a different position she'd been, if there was no Medicaid program and no public hospital the court said the state can encourage chid birth over abortion. There have been six separate Supreme Court cases on this and all upheld the government never constitutionally required to pay for by public facilities, public hospitals for an abortion. Another aspect of the law with regard to abortion, is that spousal consent and spousal notification laws are unconstitutional. Missouri adopted a law that said, before married women can have an abortion, she needed to get consent from her husband. Missouri said, that even though the woman was obviously the person bearing the child, the husband still had an interest in the state of that child. The Supreme Court declared the Missouri law unconstitutional. The Supreme Court said, the right of abortion belongs to each woman, it's her body, it should be her right to choose. No one including her husband, the assumed father of the child, should have the ability to veto the abortion. Likewise, the Supreme Court has said, that spousal notification laws are unconstitutional. Pennsylvania as I mentioned, in the case that became before the court in planned parenthood versus Casey. It involved a law that said, before married women could have an abortion notice would have to be given to her husband. The husband didn't have veto power, but just had to give them notice and the state said at the very least shouldn't the assumed father, have the ability to have a voice in this, if not a role in the decision in terms of veto power. But the Supreme Court declared, the Pennsylvania law in the spouse notification requirement unconstitutional. The court said, this is an undue burden on a woman's right to abortion. The court said, many woman are in abusive relationships and to require spousal notification would be, to take away the woman's right to choose. Third example of the law with regard to abortion and the application of the undue burden test, is that parental notification and consent requirements to allowed, so long as government creates an alternative procedure. Where minor can obtain abortion by going for a judge. And a judge can allowed it, either by finding the minors best interest or concluding that she's mature enough to decide for herself. I realize that that's a long rule, let me say it again and then break it down for you. The Supreme Court has said, that a state can require parental notification and or consent for an unmarried minor's abortion. But only if it creates an alternative procedure, where a minor can obtain an abortion by going before a judge. And the judge can approve the abortion, either by finding the minor's best interest or by concluding that she's mature enough to decide for herself to explain, many states have adopted laws that say. That before a minor can obtain an abortion, notice has to be given to one or both of her parents. Or sometimes the laws say, before a minor can obtain an abortion, she needs consent from one or both of her parents. The argument for this is that before a minor can receive any medical treatment, there has to be parental notice sent. Why should abortion be any different? On the other had, those who oppose such laws say, the minor has the right to decide for herself, whether to have an abortion, whether to bear or beget a child. So, the supreme court has taken a compromise approach. It said a state can require from notice or parental consent, but it can't give the parents an absolute veto. There has to be a procedure where a minor can obtain an abortion without getting parental notice or consent. Minors still get an abortion by going before a judge and the judge could approve the abortion, either by finding minor's best interest or by concluding that she's mature enough to decide for herself. Critics of this say, this is an approach that only a lawyer or a judge could adopt. How realistic is it that a pregnant teenager is going to find her way to the judge to be able to use this traditional bypass, but those who defend this say that the pregnant teenager will likely go to a planned parenthood clinic. They are familiar with the law, know how to go before the judge. One other aspect of the right to abortion that the supreme court has ruled on is the supreme court has said that laws that prohibit so-called partial birth abortion are not an undue burden, they are constitutional. Doctors say, there's no such medical procedure as a partial birth abortion. That's a label that anti-abortion activists came up with. A partial birth abortion is removing some or all of the living fetus with the intent to ending the fetus's life. There's a good deal of medical evidence that this is the safest abortion procedure in the time just before viability or if it's a post-viability abortion. A number of states attempted to ban so-called partial-birth abortions. In 2000, in Stenberg versus Carhart, the supreme court declared unconstitutional, a Nebraska law that prohibited partial birth abortion. And the supreme court in an opinion by Justice Breyer stressed, there was no exception to allow the procedure. It was best for the health of the woman and the law was so broadly written, it'd prevent many types of abortion procedures. Congress passed the federal partial birth anti-abortion, Partial-Birth Abortion Act. The federal Partial-Birth Abortion Act prohibited for the whole country partial-birth abortions. In the year 2007 in Gonzales versus Carhart, the supreme court in a 5-4 decision upheld the federal Partial-Birth Abortion Act. The opinion was written by Justice Anthony Kennedy. The court said, the prohibitional partial-birth abortions was not an undue burden. What changed between 2000, when Stenberg versus Garhart was decided? In 2207, when Gonzales versus Carhart was decided? The federal law didn't have an exception for the health of the women. The federal law was broadly written. It wasn't the difference in the content of the laws. The difference was that Justice Sandra Day O'Connor who had been on the court in 2000 and ready to strike down the Nebraska law was replaced by Justice Samuel Alito who joined with the dissenters in that case to create a majority to uphold the federal Partial-Birth Abortion Act and to say, it wasn't an undue burden. In the spring of 2016, the supreme court, again is going to be dealing with the issue of abortion. It's a case called Cole versus Whole Woman's Health Center. What this involves is a Texas law that imposes two requirements and facilities where abortions are performed. One says that any doctor who performs an abortion at a facility has to admitting privilege at a hospital within 30 miles. And generally, those hospitals won't give admitting privileges to those doctors. It also says that any facility where abortions are preformed has the surgical quality facilities. This is true even if surgical abortions are not performed there, even if there's only medically induced abortions through medicine like RU486. And the question is, are these restrictions on abortion an undue burden? What does the undue burden test mean? Does the state have to prove that these provisions really necessary to protect the health of the woman? If these provisions are upheld in Texas, it would go for about 50 clinics where abortions were performed to about 10. If these provisions are allowed, then in states like Mississippi, all of the clinics will be closed. Many states have adopted similar laws. Many states have adopted laws restricting abortion in the last few years. This is the most recent case to come to the supreme court and we'll see what happens, and before the court it's now called Whole Woman's Health Center versus Cole. They argued in March of 2016 decided by the end of 2016.
