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The Oral Arguments in Roe v. Wade and Doe v. Bolton

Today, October 11, 2012, is the 40th anniversary of the re-arguments (the second round of oral arguments) in Roe v. Wade and Doe v. Bolton, the infamous Supreme Court decisions that led to America’s abortion policy.  And a tragic precursor to a larger anniversary indeed, as in January the United States prepares to inaugurate a newly elected President it will also mark a dark day—the 40th anniversary of Roe.

As the nation’s first national pro-life organization that was established before Roe to defend life, Americans United for Life will be announcing some special projects to note the impact of more than 54 million lives lost to abortion on demand.

Part of AUL’s unique response to this tragic day will be a thorough and on-going legal analysis of the events that lead to the Supreme Court decision. Nationally known as an expert in abortion law and legal history, AUL’s Senior Counsel Clarke D. Forsythe has been developing a crucial record of the events.

Because there was no evidentiary record in either Roe or Doe, the oral arguments are essential to understanding the Justices’ thinking and the mistakes they made in reaching such unprecedented and sweeping decisions that sparked 40 years of social, medical, constitutional and political controversy.

The Roe and Doe Transcripts

Due to the relative inaccessibility of the official transcripts, and of the inaccuracies in available copies of the transcripts of the arguments in Roe and Doe, AUL is making available corrected copies of the transcripts of the two arguments—a rare opportunity to see for yourself just what happened 40 years ago:

The Setting

The first oral arguments in Roe and Doe had taken place on December 13, 1971. Only seven justices sat. Justices Black and Harlan retired due to ill health in September 1971, and the vacancies were not filled until Justices Powell and Rehnquist were sworn in on January 8, 1972. After considerable internal strife, the Justices voted in June 1972 to rehear the cases.

The oral arguments in both of the abortion cases were burdened from start to finish by two major problems: no trial record of factual evidence and much time spent on procedural and jurisdictional questions that prevented focus on substantive historical, medical and constitutional questions. These plagued both the oral arguments and the Justices’ deliberations between December 1971 and January 1973 and thus fundamentally shaped the Justices’ decision-making and the opinions in Roe and Doe.

The Re-Arguments on October 11, 1972

The second round of arguments focused more than the first on substantive medical, social and constitutional issues. There were seven major themes in the arguments—measured by the time spent on them—though they never got the time they deserved, including:

  • Medical assertions about abortion;
  • Historical purposes for the state abortion laws;
  • Legal status of the unborn child, including whether the child was a legal or constitutional person;
  • Medical context for the legal protection of life;
  • Treatment of women under that law as victims and not accomplices;
  • Exceptions for rape, incest, etc. in Georgia’s law;
  • Difference between abortion laws and laws regulating surgery.

“Today we know so much more about how abortion harms women and how the abortion industry has used the most vulnerable among us to create a billion-dollar industry,” said Dr. Charmaine Yoest, AUL President & CEO, “and AUL will continue to set the record straight.”