- This video was made
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just by opening up new tabs, which are going to do anyway. Link in the description. 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. When I cover stories like these it just makes me want to do some good for as many people as possible. If this video leaves you wanting to do some good in this world, I
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Internet browser tabs. So, do you think the current
law is the way it should stay, or are you welcoming
these new developments in the American South? Leave your objections
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