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tv   Supreme Court Landmark Case Roe v. Wade  CSPAN  December 26, 2015 7:00pm-8:31pm EST

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. exploring the human story and constitutional dramas behind 12 his stork supreme court decisions. number 759. >> we hear arguments of number 18. >> and many of our most famous decisions are once the court took the unpopular. cases's go through a few that illustrate very dramatically and visually what ofmeans to live in a society 310 million different people who helped stick together because they believe in a rule of law. and welcome to c-span's landmark cases and tonight, the 12th and final in our history series, the roe decision, a decision that has continued to rock
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american political landscape. we learn more about that in the next 90 minutes but first we start with a cbs evening news report on the night the decision was announced. a landmark ruling, the supreme court today legalized abortions. in cases from texas and georgia said the decision to end a pregnancy during the first three months belongs to a woman and her doctor, not the government. and the antiabortion laws of 46 states were rendered unconstitutional. >> to raise the dignity of women and give her freedom of choice is an extraordinary event. the courtgment of will do a great deal to tear down the respect previously accorded human life in our culture. >> the debate which begin not -- what beganday that day continues.
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most summary teaches law at uc berkeley. welcome to our series. his book is called abuse of job is an and his day senior counsel for americans united for life. think you for being with us. let's start with a brief overview of why this is a landmark case and what because additional issues were decided by the court. the fact the court made this decision was an amazing thing in 1973.
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and in its view of the democratic process in what was happening on the ground. it was a sleeping decision insofar as it swept away all the laws on abortion and created a public health vacuum because there were no abortion laws the books of any kind but it also suggested finality and new york times came out on the 23rd and said the court settled the issue. nothing like this issue for 42 years it's been an engine of controversy it was a sleeping decision. and isolated the u.s. as one of only four nations of 195 across the globe. yet it has not settled the issue at all.
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susan cole of these programs have been interesting because of your participation in them. we have a twitter feed and if you are wanting to join us, please use the hash tagged. there is a discussion underway already on our facebook page. you can join that commentary. and we have two phone lines divided geographically and we will put the phone lines up. let's do the historical context of the 19 60's and 70's and what was happening with regard to abortion legislation and the woman's rights movement and the backdrop for the court taking this on. it a perfect storm for historical events. he had the woman's rights movement and a very strong movement in the criminal law to
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decriminalize areas of intimate life that individuals felt the government had no business intruding in on. with theirt involved model penal code project. abortion was one of the topics that they took on as well. susan: we have a map. you referenced this. i will put that on screen to show the states it was legal. can you talk about the state legislature and how their approaches to the question varied. so,forsythe: until 1967 or even those that allowed it for certain reasons probably limited
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it. certainly no state allowed abortion to the extent the supreme court allowed it in 1973. and there were four years of state legislative sessions in which the states were to enact conceptions to the traditional 1970, that but in legislative reforms seemingly comes to an end because in 1971, no state legalized abortion by legislation so the reform effort seemed to come to an end. why was that? mr. forsythe: i think because opposition and public opinion and social reform movements had 1970.between 1967 and
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those abortion activists recognize they really didn't win anything in the state legislature. >> join us know. -- now. >> the majority of american women working outside, most of them are working at low play -- paid jobs often in a dead end. you don't know what you want. very happy housewife and a
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very happy mother and i feel i have so many things to do with my daughter. >> obviously it's a concern for all women. all women face the problem. >> free are sisters, free ourselves. >> we do have young people watching. try to capture a bit of what was happening. to the deal is really fantastic --the scope of it you see a of it. you see a generational shift. women who have traditionally taken on a very traditional role and younger women who were clamoring for more options. more options and employment,
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education. what can you add to our knowledge about the time? mr. forsythe: the history is that the feminist movement and feminist leaders came late to the push for abortion. the push we started in the 1950's from doctors and population control movement organizations that wanted abortion for population control. rockefeller was a big funder of population control in the 50's and 60's. they were late to the abortion reform movement but once they , they certainly pushed the issue very hard in the early 70's in the two or three years leading up to the decision. what was happening and
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congress at the time? mr. forsythe: population control was a big topic. six months after next and became president, he gives -- after nixon became president, he gives a speech about population control and appoint a national commission that comes out with a report endorsing abortion for population control in march of 1972 just as harry blackmun is writing his first draft of his opinion in roe versus wade. susan: we will move to understanding the woman who brought this case to the supreme court. we were talking about the 50 states. this was a texas law. will you explain the texas law being contested? mr. forsythe: it was one of the 30 or 40 that had prohibited abortion except to save the life of the mother. although there had been debates
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in texas legislature as there were across the state, texas retained its traditional prohibition until the time the case was final. susan: the case has the name row versus wade but roe is a pseudonym. mr. forsythe: she is actually normal gene mccarthy. she was a young woman married to a man a few years older than her. she was already the mother of two children when she found herself pregnant. the marriage abuses, troubled. she wasn't able to terminate her pregnancy in texas. beenried to say she had the victim of a rape but there was no police report documenting that so she wasn't able to have access. to anund herself going
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adoption lawyer in texas to make arrangements for an adoption. the lawyer was friends with a weddington whoah was in need of a plaintiff. susan: norma mccorvey is described as again -- dallas carnival worker. it was said she had no role understanding of the legal system and thought this case be settled in time for her to have the abortion. how did she proceed in the legal system? will you walk us through the process for her? this case was one of 20 in the courts of but in this case, she got pregnant in
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the summer of 1969. she gave birth about the time her case was in federal court sometime in january or march of 1970. she was connected to her cocounsel. the two of them filed the case in march of 1970. as quickly as a couple months they had in the world argument before the three-judge district court in dallas and by october, they were heading to the supreme court. reviewas no intermediate at this time because three-judge district court's could do -- could go to the court without any review. this is one of the ironies and problems about roe versus wade. there was no factual record so all of the details we might play
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out about norma mccorvey's life will not in the opinion. there was no trial, expert witnesses, presentation of evidence. , you get onlyn the bare-bones, that she was a .ingle woman unmarried then the decision is so sweeping that those of factual circumstances aren't significant to the outcome of the decision. that's a part how i think roe versus wade is different from all the other cases you have discussed. those are very factual, late in decisions and the courts and opinions go through the fax in facts in faxed -- details. wade was the
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prosecutor. was was one of the judges on the three-judge district court .anel ands the dallas prosecutor by all means a good prosecutor who found himself in the middle. susan: would you talk a bit .bout the ruling on what grounds did they rule on the case? ms. murray: the district court ruling is interesting. there's a lot of discussion about the ninth amendment, which is known as the forgotten ninth amendment in legal circles. the idea is that not all of the rights in the constitution are
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neutral rated in the constitution -- there are other kinds of rights that might be divined based on judicial interpretation. that panel talked about the ninth amendment being a source of light for the right to have an abortion. there was discussion about the right to privacy which had been divined through judicial interpretation in 1965. susan: was it significant in the federal review that she had once claimed she had been raped and later disavowed that claim? of forsythe: the obligation every was not in the supreme court's decision. the fact she later recounted that is really not relevant to the decision of the futures of the decisions because the courts highelves did not look upon the allegation in making their decision. but that's what problematic about roe versus wade is that it
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-- thereed on a motion was no trial, no experts. it wasn't decided through the normal course of of the adversary process. leaves the foundation for the problems that i think we have seen over the last four decades. when a case is determined on testimony that is later proven untrue, what does the supreme court do after the fact? mr. forsythe: there was no testimony about the rate. susan: in a general sense? mr. forsythe: the fact she claimed she had been raped in order to gain access to abortion suggests how difficult it was to women it -- women seeking terminate their pregnancies to get this kind of reproductive care. i'm sure she was not alone in claiming she had dire circumstances.
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lots of women were doing it at the time when abortion was available. susan: what more can you tell us about sarah weddington? how old was she? mr. forsythe: she was just a couple years out of law school was her first you have to hand it to her to jump into a major federal court case like this. it an amazing first effort by a law student. or 22 cases in20 the courts for many different states at the time. amy smithhave had an or mary jones who eventually got to the supreme court but the these inpened to take 7018 or 20 others they could have taken.
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case is a bitond confusing. she found herself unexpectedly pregnant and she and her future husband ended up going to mexico in order to get an abortion because she couldn't secure one in texas so she felt these issues in a personal way. that informed her decision to take on this case. susan: would you talk about a second case, which was a georgia case? mr. forsythe: the georgia case oe go versus bolton -- d versus bolton. again, an unmarried woman using a pseudonym. similarly, they were challenging the georgia statute but it's different from the texas statute because it was a recently enactedlaw that had
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various exceptions into the georgia law. it allowed abortion to save the life of the mother and for rape and indications of a field of .our midi, -- fetal deformity those exceptions were enacted into the georgia law in 1968. it was a recent law and hadn't been in effect for very long to tell what happened. bolton, that case was decided without any experts. decided on motions to dismiss and went straight to the supreme court. susan: we will learn the supreme court heard the arguments in tandem and meant for the decisions to be read as conjoined decisions. mr. forsythe: correct. the case there's the name of
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row. -- roe. it's worth noting the live issue was one of those were formed issue. betweencts a tension reform and appeal. at a time the statute was obligated, there was an appetite for something that did more. the fact it was only making a modest impact for women wanted to terminate their pregnancies. our last case was chief justice or a war in 00 earl warren. we will learn more about the dynamics of that court. i want to get into this question from courtney. what do think would have different if there were experts?
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mr. forsythe: what had perhaps happened in the medical experience, the sociological .xperience the court in the case had no data or information about how the georgia law with the exceptions have been implemented , the impact of the hospitalization requirement in georgia. all of the assertions of sociology and history and psychology. assumptionased on not the right from the adversary process we normally expect.
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mr. forsythe: ms. murray: i think there -- there wouldi think have been more discussion of the german measles crisis. it probably would have been a discussion. i think there would have been more discussion of woman who were closed out of access to abortion acres of criminal prohibition in their state having to seek medical care elsewhere. susan: let's take our first telephone call. this is a viewer with us through much of the series. josh, what is your question? caller: first, does the trimester framework still apply in abortion prescriptions today or was that overturned?
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i second question is do you think the justices believed at the time this was a good compromise? susan: thank you. we will save the second question. is the trimester standard still law? mr. forsythe: it's not technically. in 1992, the court really completely overhauled roe versus wade. they abandoned the original rationale and adopted a new one they turned it into a by mester, meaning before liability and after liability, there are standards. from terry is a call in palo alto. i am really interested
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that the first clip showed the andext of being a feminist civil rights introduction to the abortion rights discussion and i am wondering if going forward if the case would be more fairly termsered on civil rights rather than where it seems to be going in terms of trap laws and and her if the woman peoplebeing asserted as having asserted the just standing might be compared to a man and his doctor having the right to make equally momentous decisions. susan: thank you very much. ms. murray: i think you have it
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pre-stage at one of argument that justice ruth bader ginsburg offered in a 1980 law review article. she famously undersized the row versus wade alliance on the privacy doctrine and said the decision would have been better housed as a sex discrimination decision. we should have thought of access to abortion essential to women's ness. mess -- equal it was a clipped by the privacy framework. -- eclipsed by the privacy framework. simplysythe: it would ignore a major state interest of a day have ane interest in maternal health.
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that would simply ignore one major state interest the court has recognized since 1973 and i think we decided. susan: the fact they have to use pseudonyms thomas as demonstrates how difficult society treated the defendants. next up is david watching us in total set -- tulsa. caller: thank you for another great series. my question is did it occur -- did the court at any point in time discuss one did life began? the course did address it in roe versus wade but they did it in a dismissive way. there were no facts, trial, evidence.
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attorneys who argued did address that but again, not from a record. the court basically dismisses it familiarwe are very with the effects of fetal development but as they decide the unborn child is not a person under the constitution and not entitled to constitutional protection. richard in st. petersburg, florida. they said personhood does not exist prenatally. at 8.5 months, you're not a person. we have had a lot of bigotry in our society. day we willne outgrow such as stuff. anyone were to submit a paper to a science journal claiming there
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, whether a guerrilla represented a new individual guerrilla, they would be left to scorn around-the-clock -- around the block. importantask a very point about the lack of factual record indicates. in the case before congress a few years ago on partial abortion, at least there was the opportunity to have a factual record. one of the things thrown out by the anti-left side saying this gruesome procedure involved taking the brains out of the baby. the president of the american college of anastasio led he had to step in and say you are endangering women and babies all over the country.
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you're telling them it would kill the baby. host: response? clarke: it brings up a lot of points. certainly, we have learned a lot more about fetal development. one of the interesting things about the original decision in row versus wade and the arguments -- and as you know, you can read transcripts of the original decision, the word ultrasound never appeared in the arguments or the briefs because it only came out in the u.s. marketplace a few years after the decision, but that has permanently changed public opinion.
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in the court's most recent decision, which i think we can talk about, in 2007, the majority opinion does recognize, perhaps more specifically than in previous decisions, that pregnancy involves a living human organism and that is perhaps the most expressed the court has been in 42 years. host: did the judge it knowledge the fact that medicine was at a certain state? melissa: the judge had been a general practitioner at the mayo when it. he was well versed in medical procedures. between the two different arguments, he went back to minnesota and spent most of the summer in the library at the mayo clinic researching the procedure.
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at the time, his opinion, which actually has a very long description in the medical history, that medical technology was not nearly as advanced as it is today. the kind of procedures we have today were unheard of then. the idea that we would have this robust knowledge of neonatology was unheard of at the time. host: let's talk about the warren burger court. what were the dynamics of it? melissa: it was a very different chief justice than earl warren, who preceded him. he was a circuit judge appointed to the d.c. courts. it was burger who suggested that harry blackmun be a nominee for the eighth circuit. he was a champion of harry blackmun. i think when blackmun joined the court, burger really expected that he and blackmun would be of a single mind, and indeed, the press spot so too.
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they called them the minnesota twins. certainly, there are judicial philosophies converged over roe vs. wade, and at the end of their lives, their friendship was really in tatters. the court itself felt the strain of that tension. berger was famously idiosyncratic in terms of his love of celebration and pomp and circumstance. that often wore on certain members of the court. host: so, when the court was prepared to hear this case for the first time, it did not have the full complement of numbers. can you talk about why? clarke: the court originally took the case is not to decide the abortion issue. they took the cases to decide younger versus harris, a divisive case that had been decided just 60 days before the court took roe and doe.
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and it involved whether civil rights attorneys good take cases from state court into federal court. and that kind of general factual scenario applied in row and do. they took these cases to decide if younger applied in these cases. in 1971, justice black and justice harlan retire within the space of a week due to ill health. black ties the next week. justice harlan dies -- black dies at the end of the next week. justice harlan dies at the end of 1971. and any temporary majority can decide cases.
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for 15 weeks between 1971-1972, there were 15 weeks where the four want to decide as many cases as they can, and they decide they want to use roe vs. wade to sweep away abortion laws, and they want to do it before vacancies can be filled. although they are not able to do it on that timeframe, they create such momentum that by the time of the vacancies are filled, the cases are pretty much decided, and it is only a question of how they will be written. melissa: it was not quite as no fairy us as that. even though they -- as nefarious as that. even though they were down to justices, they wanted to pick out the ones that would be cases they could decide with seven justices. take out the controversial ones and focus on the ones that would not be controversial. blackmun writes in his notes that he and potter stewart misjudged roe vs. wade. potter stewart thinks this is
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going to be a straightforward application of younger versus harris, the federal court extension case, and in fact, it is a much more controversial issue. host: here are the questions before the court as they consider rosie wade -- roe vs. wade. first, it would criminalize all abortions except to those medically deemed necessary to save the life of the mother. does the right to privacy include the right to obtain an abortion? are there any circumstances where states may enact laws prohibiting abortions? does the fact that roe's pregnancy was terminated prior to the case render her argument moot? we are going to hear some arguments. >> regardless of the circumstances of conception,
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whether it was because of race, incensed, extremely immature, she has no release. a pregnancy, to a woman, is perhaps one of the most determinant of her life. it disrupts her body, her education, her employment, and often her entire family life. we feel that because of the impact on the woman, this is a matter of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or terminate her pregnancy. >> there is nothing in the united states constitution concerning birth, contraception, or abortion. we do not agree with the appellate statements that the woman has a choice, but as we previously mentioned, we feel this choice is the woman's prior to the time in which she becomes
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pregnant. host: because our goal is to understand the people involved in these cases, i have read a number of descriptions of how the case was presented. the justices were very frustrated by the end of the oral arguments because the attorneys did not give constitutional reasons for their arguments. clarke: because they took these cases to decide younger versus harris, the first arguments -- and again, listeners can hear them online and read the transcripts. it is best to listen to the arguments and read the transcripts at the same time so you don't miss anything -- the first arguments are mostly
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concerned with questions about jurisdiction and procedure, questions like who has standing, is it moot, who should have brought these cases, should they have gone to the court of appeals first? there are very few substantive questions or answers until the end. at the end of the first argument, one of the attorneys for the plaintiffs kind of sums up by saying quickly at the end, and we appeal to the right of privacy and the ninth and 14th amendments of the constitution as the basis for our case, in kind of a rush like that. that is one of the problems with the case. host: what more can you tell us about these two attorneys who argued the case before the court? both for the first time. melissa: there was a question of constitutional avenues, and one of the things they focused on was things being
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constitutionally vague. there were other kinds of constitutional theories that could have been used in the case. there was an interesting, kind of funny, if not misogynistic moment at the beginning of the argument when jay floyd notes that with these two pretty young ladies by his side, they are sure to get the last word. he played it for a laugh and failed miserably. he was greeted with stony silence. one reporter wrote that it looked like war and burger was about to come down from on high and discipline him himself. clarke: the attorney general and the solicitor general play that tape for their students in classes of how not to do this. host: john is watching us on twitter. he says how -- you were you i you he i
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he assigned his childhood friend to us -- to write the opinion. what he wrote was quite fair, 17 pages, mostly dealing with disability and only three pages dealing with the substance of the merit.
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that was like a lead balloon to other members of the court who found it unsatisfying. host: some have suggested that a justice exploded with rage over the opinion and also over the thought of rehearing the case. what can you add to our knowledge of what happened behind closed doors? clarke: i think it's important to understand that when berger replaced earl warren, the liberals on the court, among
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them douglas and brennan, could not stand burger. nixon had campaigned against the war in court. he appoints burger to change the war in court -- against the warren court. he appoints burger to change the warren court. his assignment of opinions was viewed with skepticism. douglas did doubt his integrity. in january, when rehnquist joined to the court to make a full bench of nine, burger makes a motion -- not in order, but a motion to have the cases reargue to. douglas and brennan are very
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skeptical about this because they think it will flip the balance and result in a 5-4 decision against abortion rights. then that crisis renews in may and june when justice blackmun distributes his first draft opinion and again the motion is made to reargue the cases in the fall. the justices explode, especially justice douglas. he writes a scathing dissent that he wants to issue before the end of the term condemning burger for allowing the manipulation of the court. he holds that dissent, but it sneaks into the press and is on the front pages of the washington post on the fourth of july weekend and gets on the front page of the new york times the next day, which raises tensions that it will be re-argued and it was re-argued in 1972.
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host: we should also note that there was a presidential election going on. the court always envisions itself as being distant from the political process, but in case after case in this series, we have learned that there are political influences that find their way into the court and the proceedings. melissa: the election as the backdrop against which the court is doing all of this. nixon is an interesting figure because he actually is in favor of liberalizing abortion at one point in his career. but as he takes on the much more liberal mcgovern, he begins to play up his only names. his stance on crime is more articulated. it's all done to position
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himself as the anti-mcgovern, and he wins in a landslide. the court had strong evidence for it. the justice ridley -- justice burger delays releasing the opinion in roe vs. wade until after next and is inaugurated. the decision is released in january just after the nexen -- nixon inauguration. host: so, we are going to listen to the second oral argument. as you mentioned, there is a new attorney representing the state of texas, robert flowers. anything about him that would be important for people to know? clarke: he was an assistant attorney general who did a better job, but still, the arguments are limited by the fact that there is no trial, there is no record, there is no evidentiary proceeding. so, the justices ask the attorney questions about substance, history and abortion that they have no basis for answering.
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in both arguments, there are lots of times when the attorneys say i don't know because they have no factual record on which to rest their answers. host: again, this is october 11, 19 72. >> under the federal constitution, is a fetus a person for the protections of the clause? >> all cases in common-law history would indicate it is not. >> would you lose the case if the person -- if the fetus was a person? >> than you would have a balancing of interests. >> -- an imbalance of interest. >> it seems it would be balancing the rights of the mother and the rights of the fetus. >> it is not balanced to pit the rights of a person against the status of another. >> is it not true or is it true
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that the medical profession itself in agreement as to when life begins? >> i think that's true, but from a layman standpoint, medically speaking, we would save it at the moment of conception, every potential that anybody in this room has his present at the moment of conception. on the seventh day, i think the heart in some form starts beating. host: what is different about the second time around? melissa: you are definitely getting more substance. what stiffer and is that -- what is different is that some of the lower court cases kind of trickled up. she speaks about a connecticut judge who struck down an antiabortion statute on the grounds that it violates the right to privacy. constitutional rights are
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discussed the air, as well as the ninth amendment. there's more grist for the mill in this argument than in 1971. host: we are going to take a few phone calls then hear from judge harry blackmun himself about this case. let's hear from herbert in chicago. caller: i have a couple of questions or points. did any of the decisions by any of the justices talk about when life begins in the decision? also, whether any friends of the court briefs filed on behalf of the unborn child? host: we did take the first one before, but will you answer it again? clarke: the justices only in passing talk about their
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familiarity with fetal development, but there were amicus briefs filed that presented pictures of fetal development in prenatal life. in fact, the attorneys argued that we have exercised sarah weddington and the texas attorneys in roe vs. wade, but there are arguments and transcripts in dover versus bolton. although sarah weddington has gotten a lot of media over the decades, the assistant attorney general for georgia argued both rounds of arguments. she is regularly touted to be the best or a list of all the attorneys in both of the cases in both -- best oralist of ali attorneys in both of the cases in both rounds of arguments -- of all of the attorneys in both of the cases in both rounds of arguments. caller: is roe vs. wade established law or is there any case that could come through the lower court system that could overturn roe vs. wade? one of the issues in the current presidential campaign is if you
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vote for candidate x or candidate y, the supreme court might be changed by voting for that particular person who might appoint certain justices. is it established? is it safe? or is there a case coming through that might overturn it? melissa: it is established law. is it safe is a different question. based on a lot of different things, you could have a decision that completely overrules roe vs. wade. i think the more likely thing to happen that might endanger it would be intermittent chipping away of the decision, which i think we have seen over time. i think the idea of a complete overruling might be more remote, that the idea that there might be incremental restrictions might be something to think about. host: could there be a legislative response? clarke: well, the states are
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often regulating to protect maternal health and fetal life, and that creates what comes into the courts. i would add to that roe vs. wade was substantially overhauled in planned parenthood versus kc. the original opinion is somewhat defined and has been superseded by planned parenthood versus kc in 1992 -- casey in 1992. but roe is completely unsettled. the justices could in any particular case in which a state statute arguably conflicts with it revisit roe vs. wade. they won't do so in the short term, but they could, in any case. perhaps the caller was also alluding to the fact that by the time of the next presidential inauguration, four justices are going to be 80 or on the verge of 80. so the next president may affect the future of the supreme court for the next quarter century.
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melissa: it's a bit of an overstatement to say that roe vs. wade is defined. the core of it survived casey. host: the court ultimately ruled 7-2. i want to ask you in a moment how we got to that vote, but first, keith in minnesota, you're on. caller: there has been talk, discussions about the rights of the unborn and the rights of the mother. has there ever been discussion about the paternal rights? host: you are shaking your head yes. melissa: not in roe vs. wade, certainly, but in other cases. there is a provision of misery law that requires a woman seeking an abortion who is married to get the consent of her husband. that was part of casey. both of those decisions are invalidated by the court in both of those cases. other cases deal with paternal rights. there is a 1971 case called stanley versus illinois that
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considers the rights of unmarried fathers. those decisions often interact but are not necessarily understood as being on the same track. host: let's listen to justice harry blackmun about writing this opinion. justice blackmun: i think at the
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conference after the first argument, the chief justice sent the -- sensed the sensitivity of the argument and of the issue, rather, and i think probably preferred not to assign it to himself, as he could have. there were personal reasons also. family reasons, i think. douglas, i think, wanted the case, and i don't think he would misunderstand this comment on my part. bill was in the waning years of his service, and was not writing as well as he did in prior years. he would've treated the case
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rather preempt early -- preemptively. should brennan write it? at the time, he was the only roman catholic on the court. he was sustaining a lot of abuse. he got a lot, even though he didn't write it. >> do you think he wanted to write it? >> i don't think he did, but i think he was firm in his view. same with thurgood marshall. he was the only african-american on the court at the time. i think it would have been hard and a little unfair. host: some interesting backstage
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dynamics explained at the heart of all of this and justice blackmun writing the majority opinion. what did you think of that? melissa: i think it's great to think about the different personalities and the way these decisions are assigned. what i think he wanted to write the opinion. he had spent time writing an original draft when there was a motion for re-argument. he worried that after all of that investment he would not be the one to write the opinion, that it would be given to another justice. i think he protests a little too much. there are reasons for the others not to write it, but i think there are reasons for him to write it as well. host: what you have to say about the dynamics of the court that we just heard justice blackmun talk about? clarke: it was an unusual time at the court.
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it was a unique time, the 1960's, the sexual revolution, the two vacancies. there was a lot of turmoil in the court. this created a crisis within the court at any number of points. what is interesting is that when justice powell and justice rehnquist joined the court, there was so much momentum that they could not have reversed it if they wanted to. at the end of the day, justice powell joined. at that -- at the very end, chief justice burger joined and switched it from a 6-3 decision to a 7-2. host: here were the questions for the court again. we will go through them quickly. do laws that criminalize all abortions, except those required on medical advice to save the life of the mother, violate the constitution? the court said yes. does the 14th amendment's due process clause protects the right of the mother question
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mark the court said yes. here is a bit of justice harry blackmun's opinion. it was how many pages long, in total? melissa: around 50. host: so this is a quick glimpse. host: and from justice byron white stood sent --
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host: the court that day, for example, we learn that justice blackmun invited his wife to come to the court to listen to him. he decided to read the summary. how often does that happen in court cases, where the justices read their summary from the bench? clarke: reading an entire opinion is rare. a short summary happens now and again. it was not really out of the ordinary. host: and what do we know about the dynamics in the courtroom that day? melissa: we know that justice powell sent a note to dottie blackmun telling her she should be very proud of her husband on that day. powell was one of the newest justices. he joined with william rehnquist. he was kind of a wildcard. blackmun was very glad when he endorsed roe and actually pushed back on designating when life
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came into being. he wanted to expand it to viability. host: the day became historically notable for another reason. lyndon baines johnson died that day, and that really dominated the headlines. how long did it take the media to catch up with the importance of this story? clarke: it was on the front page of "the new york times," below the fold. johnson's death is the leading headline on january 23. but it was announced by walter cronkite. what is significant, i think, about the earlier media announcements is that the media almost consistently says that the right to abortion is limited to the first three months and we know that is inaccurate. but that was the initial message
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the public got. we know that when you look at roe and doe together and you look at the viability rule in roe vs. wade, but dover's is bolton -- doe versus bolton looks at all factors, that unlimited health definition requires the states to perform abortion even after fetal viability. the press got it wrong and has continued to get it wrong. host: we always talk about the impact of the decision on the court and on society. we begin with harry blackmun talking about what public reaction was in his mailbag after this decision. justice blackmun: there were the expected comments to the effect, your mother should have aborted you, or i have been praying for your immediate death. much of the correspondence is
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abusive. i suspect i have been called every possible apathetic on name -- apathetic -- epithetical name, pontius pilate, murderer, herod, madman, and the like. host: reaction? melissa: he certainly got blowback for this. there had been calls to impeach earl warren. there were more vociferous calls to get rid of harry blackmun. this was a defining moment in his life as a justice, and he would go on to do many great things on the court but he was
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defined by roe vs. wade. clarke: the justices completely underestimated the public opposition that there would be. there was discussion in various memos and deliberations in the two years leading up to row about how this would be criticized by the media, but of course, the public opposition and public anger has been more significant and resulted in hundreds of state laws attempting to eliminate the right to abortion as well as constitutional amendments presented to congress in hearings from 1973-1980 three. the justices completely underestimated where the public was. host: let's go back to phone calls. next up is nathan in bishop, texas. caller: i have a question. hold on row quick. why couldn't the supreme -- hold
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on real quick. why couldn't the supreme court decision be handed down to the states under the 10th amendment as abortion is not mentioned in the constitution? clarke: or why has the 10th amendment not been a relevant consideration? the court has never considered the 10th amendment to be a blockage to its decision in roe versus wade. host: what does the 10th amendment do? clarke: it reserves power for the states, but the court, in effect, said the 14th amendment supersedes anything the 10th amendment might say. melissa: although there have been cases in recent years that apply a more robust view of the 10th amendment.
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host: david is in tracy, california. caller: what do you think could have or should have happened that would have settled this issue once and for all? melissa: that's a tough question. i do agree with clarke that a more robust factual record would have made clear what the stakes were for the many women seeking abortion who were unable to get them. i think it would have also made clear what the states were seeking to regulate, whether it was in the case of maternal health or the case of immorality, which some of them are quite forthright about. one of the issues of roe vs. wade is that you don't have that record, see you don't get the
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voices of the many constituencies affected by this decision. clarke: some issues in a democracy are simply not finally settled, and may take decades to settle, especially issues with such strong cultural current. but i think it's clear that roe vs. wade has unsettled this issue more, and if it had been left to the people, it would have provided the opportunity for public opinion to effect public policy and be more in line with public policy. public opinion is so out of sync with roe vs. wade that it has
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kept this issue simmering for the last 40 years. melissa: we could say that about a lot of issues. segregation is an issue that, if left to public opinion, would have come out very differently. there is a role for the court to play regardless of public opinion. that is certainly true in roe vs. wade. there may have been backlash, but it wasn't clear that the democratic process would work in a way that would vindicate constitutional rights. host: is it fair to say that the criticism of this case does not fall neatly into a liberal-conservative divide? melissa: i think it's fair. reasonable people can reasonably disagree on this question, and do. i think the larger question is what is the court's role in this process and when should the court intervene when the political process breaks down? at the time, these cases went to the court and that is the reason why there were so many cases in the pipeline at the time it was decided. the political process had rogan down.
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clarke: a big difference is that brown versus the board of education was based on reconstruction, based on the 14th amendment, particularly designed to detect the rights of freemen. in roe vs. wade, there is no history in anglo-american history of an abortion right. the court was not relying upon history or text of the constitution. it was creating something wholly new. the justices, in reconstructing the amendments, it is something that's part of judicial character and judicial function, but the court became the ex officio medical board with the power to approve and disprove medical practices through the united states. that's not something judges can do. they cannot be the national abortion control board, and the 42 years has shown that very clearly.
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melissa: in grizzled versus connecticut, that speaks to the right of privacy and constitutional guarantees, and roe vs. wade is rooted in griswold. it also speaks of the ninth amendment. not as clearly, but again, this idea that not all constitutional rights are enumerated in the constitution. clarke: but again, i think the distinctions are stark. in griswold, the court acted like a court of judges and invalidated the statute, whereas in roe vs. wade, the court did and just invalidate a texas statute, it rewrote and natural -- national statute of considerable detail that it has been forced to administer. that is completely different, and it has completely reinvested this court in the issue year-to-year. the only way the court can really subtly issue is, to some extent, by relinquishing its role here. host: robert in dallas, you are on the air. caller: i want to confirm my
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understanding that sarah weddington was judge syracuse's former law clerk, and when the case was filed in dallas, it may be more than a coincidence that it ended up before judge syracuse. melissa: she was not her clerk, but her cocounsel. when they were filing in austin, they decided they would have a better shot near dallas because judge hughes was likely to be
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part of the panel. i don't think it was necessarily angling, but it was certainly a degree of shopping. host: you said earlier that you didn't think that the personalities in this case were quite as large as some of the earlier cases we did. we have some video to show our audience of how sir weddington has changed camps. let's watch. -- of how roe has been involved in this issue. she has changed camps. >> i would like to apologize to each and everyone of you here today. i am sorry. i have asked jesus into my heart. what can i say? i love jesus and i love all of you. thank you. what a journey this has been, right, guys?
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how many of us love jesus? how many of us want to see roe versus wade overturned? this is the day i have been waiting for. when we filed the affidavit, when we had our news conference on the 18th, the actual filing was on the 14th of this month, so we are looking forward to having the covenant of death overturned like our great president george w just said. god is good and jesus is. host: every year on january 20 second there is a large margin washington, d.c., and she has been a speaker for many years at
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that rally. what happened? clarke: suffice to say, she completely changed her visa news and she became, basically, a pro-life act -- changed her views, and became, basically, a pro-life activist. she testified before congress more than once in support of overturning the decision. she and the married to in doe versus bolton both filed -- mary doe in doe versus bolton both filed to overturn the decisions. but their motions were denied and the court refused to hear those cases, refused to reopen them. melissa: the supreme court has turned a deaf ear to them. justice kennedy cites sandra cano's brief in upholding the partial-birth abortion ban.
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they do receive an audience. host: do you happen to know any more of a norm is story and what changed her mind on this issue? melissa: she became a born-again christian and her faith is what changed her mind. host: let's take a call from john. caller: thank you very much for the fairness of this. it was my understanding in bolton versus the georgia case where sandra cano never wanted an abortion. she went in to file for a divorce, but her attorney tricked her by putting in the papers that she wanted an abortion. the second thing is, talking to most gynecologist-obstetricians, they feel the life of the mother is really not at stake because we now have us a syrian section that can protect both the mother
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and the baby. -- ac section that can protect both the mother and the baby. if this case is rooted in griswold, griswold said the right to privacy pertains to things like contraceptives. isn't it a tremendous stretch to go from i have the right to buy contraceptives to i have the right to kill an innocent, defenseless child? the question to melissa, and the gentleman, with all due respect, yes or no, do you consider the baby in the mother's womb a human being? the reason why that is so important is because justice blackmun said if we know that life begins at conception or before birth, we have to revisit this. host: i'm going to let you go because we have a little time and lots of questions on the line. melissa: just to make clear the
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bridge between griswold and roe, another case went before the court dealing with contraception. they're the court is considering whether the law that prohibits selling contraception to unmarried people is constitutional. the court writes that the right of the individual to decide whether or not to bear or beget a child is the right of the individual, not necessarily a married couple. and griswold goes on to say what is a couple but a collection of two individuals? that language speaks of a fundamental right to determine whether or not to bear or beget a child. that furnishes the underpinnings of roe vs. wade. clarke: as the history shows and the papers of the justices show, justice brennan was writing
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eisenstadt at the time of these decisions and envisioning addressing the abortion question, he puts this paragraph about privacy that was complete dictum into the equal protection decision for the very reason that they could use it in roe vs. wade. maybe to address the second part of the caller's question, i do believe that science shows that the life of the human being begins at conception, but what is more important for our discussion tonight is that the states have progressively strengthened their prenatal injury law, wrongful death laws and homicide laws to the extent that 50 states have laws that protect the unborn child.
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we have wrongful death laws in 36 states that protect the unborn child. fetal homicide laws in 39 states protect the unborn child. that is a very significant show of public opinion support for fetal protection. host: many cases before the court over the past 42 years have considered some aspect of abortion. we are going to put some of the names on the screen. you have heard references to them. the last one was before the roberts court, whole woman's health versus coal, which is not yet on the schedule. marianne, your comment. caller: i am a physician in philadelphia and i have two things to say. i find it so painfully inconsistent that the child in the womb has no rights, but when
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scott lacy killed his wife and unborn child, he was accused of killing two people. a law made a woman wait 24 hours and if under the age of 18 have parents consent. what did the attorneys have to say about that? melissa: this is the case you were referring to the end, a 1990 two case from southeastern pennsylvania. the court is considering pennsylvania's abortion control act that has a number of provisions. one requires parental notification. the other requires a 24-hour waiting period. another one requires power solidification. the court affirms the essence of roe vs. wade but scales back and dismantles the trimester framework and the standard of review required for abortion cases. the idea here is that abortion
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regulation will not be considered constitutional if it imposes a substantial obstacle to the woman seeking the abortion. the waiting period is not held to have a substantial effect, or parental notification, that spousal -- but spousal notification is struck down under the standard that it renders women subordinate to their husbands. more portly, the court is worried about to mystic violence -- more importantly, the court is worried about domestic violence in these relationships. clarke: roe vs. wade focused only on abortion. it did not address fetal protection law. it left it to the states to enhance fetal protections in those areas, and the states have done so. we now have, in fact, half of
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the states with fetal homicide laws that extend protection from conception, but you have a supreme court edict across all 50 states allowing virtually abortion on demand at any time for any reason, and that has created -- because there is such attention here -- a tension here, that has kept to the issue simmering for 40 years. host: the issue is certainly simmering in the presidential campaign this year. and in congress, the issue of planned parenthood funding, up until very recently, the threat of a government shutdown hinged on funding for planned parenthood. this continues to really be debated in american society. our next clip is to senators on the floor of the senate on the anniversary of roe vs. wade in january of this year. >> a steady march toward protecting human beings before birth.
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through the 19th century, medical professionals and civil rights activist's lead a movement that succeeded in prohibiting abortion in every state except to save the mother's life. america had reached a consensus on protecting the most vulnerable. unfortunately, the supreme court swept all of that aside, imposing upon the country of permissive regime that to this day the american people have never chosen or excepted. >> it is hard to believe that
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here i stand in this century arguing that women should be respected, that families should be respected, that everyone's religion should be respected. i support a woman's right to choose, and that means if your religion says you will never end and unwanted pregnancy, i support you. i believe this decision should be between a woman, her doctor, and her god, and her family. and i don't think any united states senator should get in the middle of a woman's private life. host: as our program is quickly coming to an end, i am going to move from two united states senators talking about roe v wade to give you the view of two justices talking about the decision. ruth bader ginsburg and antonin scalia.
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justice ginsburg: take the worst-case scenario, roe vs. wade is overruled by the supreme court. there will be states, a sizable number, that will not go back to the way it was. at the time of roe vs. wade, there were four states that gave women access to abortion without any questions asked in the first trimester. those states are not going to change. what it means is a woman who can afford a plane ticket, a bus ticket, will be able to decide for herself. whether to have an abortion. but the women who won't have that choice are poor women. justice scalia: these are political questions for the
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american people to decide. that is about. do you think abortion should not be prohibited? fine. persuade citizens to pass a law. but don't tell me the constitution has taken that issue out of democratic choice. it simply hasn't. host: there we have two members of the current court, and also united states senators, laying out the continued divisive arguments. we have only three minutes left. i want to get on the record the effect on the court itself. can you talk about the impact of this case on the selection of justices for the court? clarke: it has been a litmus test ever since probably 1970 six. justice stevens nomination was probably the last in which it wasn't an issue or much of an issue. so much evidence has skewed
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judicial appointments to the court. it has become a disproportionately emphasized issue. when you take into consideration all of the other serious, statutory, constitutional, and policy issues that are addressed on the court and that have skewed consideration, i think that has been to the detriment of the country and the court. melissa: one of the interesting stories about wrist bader ginsburg's confirmation was that president clinton -- ruth bader ginsburg's confirmation was that president clinton was worried about appointing her because she had written an article about roe vs. wade and he worried that she was against it. it turned out she was just against the reasoning. it is a litmus test and it plays out in different ways. host: how should people think about this case and its impact
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on our society and on the court? and where does this country go from here given the heat around this issue. melissa: this is an issue where very reasonable people can disagree. some argue that it is about women's right to participate equally in society. others focus on the life of the unborn child in question our democratic process. those are hard things to reconcile. but the court intervenes in either takes us in one direction or another. clarke: i think it was a tragedy for the court to step into this issue prematurely and to take over the issue for the last 42 years, and to try to be the national abortion control board. it has failed in that task, and the best thing the court can do is return the issue to the
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american people where public opinion, and public policy would be allowed to be more in sync, and that would, i think, alleviate a lot of the tension on the issue, and restore public opinion to its rightful place and determine the outcome of this issue. host: we are at the final moments of our landmark cases series. thank you so much for being with us throughout the 12 cases. the series is archived on our website, you can find it easily under the series. we have video from each of the 12 programs there for you, including the other videos that did not make it into the television production, visits to historic sites and oral histories from people involved in these cases. you can also read opinions and hear audio on our website. finally, if you would like to have landmark cases on your bookshelf, that's also available and we can get it out to you
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very quickly. thanks to our two guests tonight for being with us. we learned more about the background and the importance of the roe vs. wade in 1973. thank you for your expertise. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2015]


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