Roe v. Wade Oral Argument

I have listened to the oral arguments to Roe v. Wade multiple times and there still is some value in doing so. Listening to the first argument, as a whole, I was impressed by Sarah Weddington's oral argument, this being her first two times in front of the Supreme Court at under thirty years of age. She was a state legislator, worked in the Carter Administration and then was in academia.  She wrote a book in 1993, which I read years back, for which a new edition was published twenty years later.  But, I know of no other appellate arguments that she handled.

Other than not providing the amount of specifics to the ultimate constitutional right to privacy that might be warranted, and this was when the Supreme Court was still open to disposing of the case on procedural grounds anyhow, she covered all the grounds well. She dealt with the technical issues as to the injunction, vagueness, the arbitrariness of the law in practice (including the woman not being the criminal) and a summary of the fundamental importance of the right to the woman.  Texas was an easier case here since for technical reasons, it was harder for women who needed an abortion to obtain relief in state courts, the law was so absolute (only life of the woman exception) and even an old state precedent that said the woman was the victim state abortion laws were intended to address.

The re-argument had a bit of redundancy, the justices going thru the motions a bit, to it though SW did spend a bit more time to focus the privacy argument more based on actual cases. She seemed a bit ill at ease early on when being left to go on for an extended period of time. Also, clearly, it was a mistake for the brief to skip over the Hippocratic Oath, from Justice Blackmun's question (she gave a partial answer, but also that was partially a philosophical dispute that also clashes with the right at issue here).  And, at the end of the argument, she cited the Baird birth control case that was decided in between the two arguments.  She slipped a bit as to the weighing of the theoretical rights of a fetal person, doing pretty well, but she could have more clearly said in the end even then, it is not the same as infanticide as one justice alleged (the whole violinist scenario). 

The state did a rather lousy job, floundering the first time trying to find a way to argue there was no standing; the second time a new advocate laid on thick the rights of "children," which basically goes too far in the other direction. Georgia had an easier time of it since they actually did have compromise law. It was possible to argue that even though (since states would not be able to have less restrictive abortion laws) it is not clear exactly what the personhood status of the embryo and fetus, the "life" involved is a complicated nuanced question that states should have the discretion to regulate based on modern day knowledge. 

When Justice Rehnquist is wary about the breadth of your argument, it is probably a red flag.  As noted by SW, the previous opinion that broadly allowed "health" to be a reason for D.C. abortions suggests the unborn are not persons, a point cited in the ultimate opinion here.  Also, repeatedly, the state advocates could not answer basic things, including at one point even the text of the Fourteenth Amendment, which slipped Justice Stewart up too (e.g., natural born citizens v. personhood).  The infamous opening "joke" in the first argument about two pretty ladies was not the only embarrassing moment.  For instance, once Justice Stewart made a quip about the women making the choice by living in Texas, causing laughter, and the advocate was taken aback and seemed annoyed ("can I continue"?). 

SW also finished strong.  Yes, it had a few slip-ups, but what argument, even by much more experienced advocates, often with less novel questions, does not?  Clearly, we saw that Justice White was quite strongly against what he felt was an absolutist argument for abortion rights.  But, Texas had an extreme statute and she was loathe to try to make a minimal argument there regarding some theoretical statute (a good question would be to ask her about the Georgia law).  And, in passing, the state in the first argument dismissed the First Amendment strand of the argument, but Griswold itself spoke of the association rights at issue.  The decision in effect not to have a family, or making family decisions, very well raises 1A interests.

The Doe v. Bolton oral arguments are also available and are worthwhile as noted in the past.  They are of a different character -- the rights advocate goes in the weeds more and as a whole think SW did a better job of it.  I was impressed with the state's efforts there, however, and the woman (a repeat Supreme Court advocate and later state judge) deserves more attention than she has received.  Her first argument in particular did get bogged down on technical issues, but again, that was originally assumed to be a major concern.  And, she too focused a bit too much on the "rights" of the unborn though had an easier time of it since she could argue the state was being more reasonable. OTOH, laying on thick the rights argument causes problems there since again the state allowed some abortions.

It is unfortunate that the opinion announcements are not available on the Oyez.com website as compared to later abortion cases.