Women

"From Coffee and Weddington's point of view, the panel looked as if it had been hand-picked for them, and indeed, many people were willing to believe that Fifth Circuit Chief Judge John Brown had weighted the panel in favor of the abortion-reform forces. It is highly unlikely that he did any such thing. First of all, the Fifth Circuit at the time was judicially active and liberal; second, there were guidelines about the choice of judges for a three-judge court. Since Coffee had filed two separate cases, which were assigned to two different judges, the judges in whose courts the cases fell were automatically appointed to the panel when the case were consolidated; that accounted for the presence of Taylor and Hughes on the panel and left Brown with only one justice to appoint with a free hand. That had to be a circuit judge, and Goldberg was an obvious choice since he lived in Dallas. Nevertheless, the makeup of the panel provided the two young lawyers with an enormous psychological boost."

"Flowers left his people alone once he ha assigned a case, asking only to be updated on an informal basis; but Roe v. Wade intrigued him, and it seemed to have personally interested the chief, too. Attorney General martin had told Flowers he thought not defending the abortion law would be like not defending the murder law. Besides, he was tired of people suing public servants like Henry Wade, who were only trying to do their jobs. Flowers, too, had given the case considerable thought. He felt Roe v. Wade was an open-and-shut case, one the state could win easily As far as he was concerned, from the moment of conception the chromosome structure was in place, the gene structure was in place, and life had begun. Any defense of the Texas abortion law would be based on the fact that the womb was food and shelter, just like a baby in its home. To destroy an infant in the womb was murder, the same as when a three-month-old infant were killed in its cradle. One thing, Flowers knew, would prevent the state from using this defense: this view was religious or philosophical rather than legal. The law did not view abortion in this way. Flowers knew the state could not go into court and claim that abortion was murder for the simple reason that legally it was not. Neither Texas law nor, for that matter, the laws of any other state held that abortion was murder. It was always a lesser crime, usually manslaughter. Flowers believed that a great number of those who opposed the legalization of abortion shared his view If his assessment was correct, then there were many people out there who not only did not want abortion legalized, but would support a move to restrict it further. He thought the time was ripe to assert a claim on behalf of the fetus. If the state built its defense around the idea that abortion was murder in the moral sense, at least, Flowers believed people, including the judges who would hear the case, would understand and accept his argument regardless of how the Texas law was written. Once everyone agreed that abortion was a grave moral wrong, surely the Texas abortion law would stand Thus, flowers was optimistic that the state would not only defend its abortion law successfully, but that it might even be tightened further as a result. If he could get a ruling that the law was designed to protect fetal life, Texas would have the toughest abortion law in the country."

"The first reaction came, not surprisingly, from the conservative Dallas Times Herald, which ran an editorial on Friday, March 6. Noting that the abortion laws were “badly in need of intelligent over-haul,” the paper still found itself opposed to the suits: “We have no sympathy with the attempt of a married people and of a single woman to get the existing abortion law declared unconstitutional by a Dallas federal court.” Specifically, the paper took issue with the fact that the plaintiffs were “disguising their identities with fictional names. . . . “ The newspaper’ s real objections to the cases, however, seemed to be that so serious a social problem was being tossed into the hands of a few judges."

"Although Weddington was not naturally given to dealing with abstractions, the two women soon decided that she would research the merits of the case while Coffee tacked the procedural legal issues such as standing and mootness, with which she was more familiar. If Coffee minded or even realized that Weddington was taking over the more glamorous aspect of preparing the case, she never acknowledged it even to herself."

"Even though it was not actively enforcing the Texas abortion law, the D.A.’s office could not be described as receptive to a challenge to it. In the 1960s most states’ law enforcement agencies, including the Dallas District Attorney’s office, looked upon the numerous civil rights challenges that began coming their way as frivolous. They resented the time they took up. Nonetheless, given the times, Wade’s office had been expecting some kind of attack on the laws that discriminated against women. They thought perhaps women would strike out against protectionist labor laws. No one thought the abortion law would be challenged, and it came as a shock when it was. There had been no sense among the conservative, mostly male lawyers in the D.A.’s office that any major discontent had been building among women regarding abortion. Besides, they tended to view the state’s abortion law not as discriminatory against women so much as a statement about the moral standards society wanted to uphold. As a result, just as Weddington and Coffee had hoped, Wade’s office was totally unprepared for their attack on the state’s abortion laws. And from the minute Roe v. Wade and Does v. Wade were filed, Wade and his staff recognized that these were serious challenged and, therefore, potentially significant cases."

"The attorney general’s office quickly learned that Coffee and Weddington were reputable, capable lawyers, and that Coffee had clerked for Judge Sarah Hughes on the Fifth Circuit. The pleadings were carefully thought out and well written. However, this is not to say that anyone in the district attorney’s office thought for a minute that the abortion laws stood a chance of being overturned. They did not, and they were sure they would prevail in any courtroom. Still, it was clear this was no frivolous lawsuit. None of this helped anyone’s mood in the D.A.’s office when Wade was served the papers. Wade’s lawyers, who usually went to trial for murder, armed robbery, or rape, did not want to waste their time on a challenge to a nearly defunct, century-old state law. It was typical of Wade, however, not to slight the case, not least because a federal lawsuit against him had recently slipped through the department’s hands. Wade had learned of it only when a judge called him and asked if he knew he was being sued for $50,000 and that no one in his office had responded to the complaint. After that, Wade assigned one of his brightest assistant D.A.’s to work full-time on federal lawsuits brought against county officials."

"Indeed, despite Tolle’s claim that the matter of abortion properly belonged in a state legislature, the three judges still thought they had a “federal: question to deal with-namely, whether or not the present Texas law denied women a basic constitutional right. Goldberg pointed out that protecting life at any stage of development seemed not to have been the intention of the framers of the Texas abortion law. Seeing room for a possible compromise, he asked Tolle, as he had Coffee and Weddington, whether striking the phrase “to save the life of the mother” might not make this law viable. Tolle replied, as they had, that he did not think this would be true to the original intention of the law. But where the two women had argued that the law could not be saved because it was so unconstitutional, Tolle said he felt the law was constitutional the way it was written, thereby eliminating any need to remove anything from it. Tolle pressed harder, saying, “I believe that we’re talking about rights. I think that the most persuasive right that the plaintiffs urge, as was held in the Babbitz case, and all the cases refer to it quite heavily, is the right of privacy, for want of a better term, and there you get to the point where the state had to regulate conflicting rights-whether the state has to regulate conflicting rights-whether the state had got an interest in the life of the unborn child sufficient to regulate the woman’s right to privacy. This is a very difficult question, and I think that it is properly a legislative question. “I don’t think the state has to have a law at all regulating abortion. I believe the field is such that it can regulate it constitutionally. I personally think, and I think the state’s position will be and is, that the right of the child to life is superior to that woman’s right to privacy.” Tolle’s argument was as good a defense as would be offered of the state’s compelling interest in regulating abortion: the state had to balance two rights, that of the fetus to survive and that of the woman to privacy. In doing so, it could certainly find that the woman’s right to something called privacy-a wrd Tolle diminished simply by the way he said it-was inferior to that of the fetus to life."

"In hinting that the woman’s right to privacy had to do with convenience or selfish whims, Tolle took up a strange of thinking that antiabortionists would soon develop more fully-namely, that not only women’s minds but also their bodies were hostile to fetuses. Nathanson would describe the fetus as “an uneasy tenant” in the mother’s womb, a place that offered an “immunological sanctuary” from, among other things, the mother, “whose white blood cells mount an attack” to reject the fetus. Like the earlier analogy of the fetus to a baby, this was an image that transposed (largely male, antiabortionist) wishful thinking into reality and,, in this case, in doing so, attempted to deny the dynamic interaction between the woman’s entire being (not just her uterus) and the fetus that was crucial to the latter’s development. Modern science has dispensed with the concept that a fetus is merely an appendage of a woman, but it does not view it as a separate agent either. Furthermore, even though a fetus becomes capable of survival outside a woman’s body several weeks before birth, as feminist historian Rosalind Petchesky has noted, its premature existence is neither easy nor normal. The undeniable fact is that the fetus is meant to finish developing inside a woman’s uterus until the moment of birth. Complex and complicated reasons exist for it to do so, all operating to the fetus’s benefit."

"As they got deeper into the abortion issue, Coffee and Weddington would each come to believe that the woman’s right was unequivocal and should not be infringed upon by anyone, but they also knew tis was too radical a view to present in court-or anywhere else publicly, for that matter. Only one other issue remained to be discussed-the discrimination women suffered because of the restrictive abortion laws. Weddington felt strongly that she wanted to stress this. Imbued with a deep sense of social justice, she was acutely aware of how unmarried, pregnant women were treated in our society, the fact that they were forced to drop out of high school or to attend alternate schools, that they could not participate in school activities. Many colleges and universities would not admit unmarried, pregnant women. Employers discriminated against them in their hiring practices, and of course, many of these same prejudices applied to married, pregnant women. Weddington felt strongly that unless women could control when they bore children, they could not full control their own lives, and she wanted to emphasize this as she prepared Norma McCorvey’s case. Coffee readily agreed that these were important issues."

"The Fourteenth Amendment, added to the Constitution after the Civil War, was designed specifically to protect the rights of black ex-slaves. By the late 1800s the Fourteenth Amendment, or at least the due process clause, was being subjected to uses its shapers had not foreseen. At the close of the nineteenth century the United States was in the midst of an enormous and unprecedented economic boom in which huge fortunes were made overnight, often on the backs of exploited workers. The plight of the workers became a cause for social concern, and a drive was begun to improve their situation. At the urging of social reformers, state legislatures began to pass protective labor laws. Inevitably, since so much was at stake for the employers, these news laws were challenge din the federal courts, where the employers soon discovered they had a sympathetic ear. The federal courts and the Supreme Court regularly struck down legislation that was designed to protect workers; in most cases they used the Fourteenth Amendment as their grounds. IN the wake of several decisions in which the Supreme Court supported the right of big business to get even bigger, the Court lost popular support and was subject to widespread criticism. Even the Constitution became a target as people charged that it worked for the rich robber barons, but not the poor wage earner."

"Floyd was nervous when his turn came to argue. He had stood up earlier out of turn, because he had mistakenly thought it was his time to speak. Now he would have to begin his arguments with an apology, to be sure the justices understood that he had meant no harm by speaking out of order. Despite his nervousness, he was confident he could make short work of the case. Neither he nor anyone in the attorney general’s office could imagine that the court would seriously consider declaring the abortion law unconstitutional. Besides, there were serious jurisdictional problems with the case, such as whether Jane Roe r any woman had a right to sue for legalized abortion. After all, the law was not directed at them: no woman in Texas was ever party to an abortion suit, so she could not claim to have been injured by the law. Floyd began by pointing out that it was the state’s position that the court had no reason even to hear this case since, as far as he could see, none of the plaintiffs had any standing to sue. He believed-the state was arguing-that the case was moot. None of the court papers had made any reference to how far along Roe was in her pregnancy, but since the suit had been filed in March and it was not the middle of May, assuming that the defendant had been at least a couple of months and possibly several months pregnant when the case was initiated, it now stood to reason that she was either no longer pregnant or was too far along in her pregnancy to undergo an abortion even if the court agreed she could have one. Her case presented no real controversy; there was nothing to litigate; in other words, the case was moot. As for the Does, their case had never presented any real controversy since, as far as he knew, Mary Doe was not pregnant, nor had she been when the case was filed. The original motion filed by her attorneys had made this clear. She and her husband therefore had no standing to sue. This was the argument Coffee and Weddington had feared. It was the reason they had amended Roe v. Wade to a class-action suit. As plaintiffs in a class-action suit, Jane Roe and Mary Doe were suing not merely for themselves, but on behalf of all other women who might find themselves similarly situated-pregnant and in need of an abortion. Nevertheless, they waited nervously to hear how the justices would respond to Floyd. Fortunately, his argument seemed to carry little weight with the court. Judge Goldberg reminded Floyd that some of the children involved in school desegregation cases had graduated from college by the time their cases were litigate. Did this mean that they were not entitled to attend desegregated schools?"

"Pleased as Coffee and Weddington were with the overall opinion, they were unhappy over not having gotten injunctive relief. Coffee, in particular, never came to terms with the court’s refusal to grant it. Even though she realized injunctive relief was “a very sensitive point” and that the judicially active Fifth Circuit had greater reason than most federal courts to tread lightly where states’ rights were involved, she still felt it was unrealistic for a federal court to expect a state like Texas to comply with a ruling that involved only a declatory judgment. For her, the question was not so much whether the federal government should respect Texas, as whether Texas would respect the federal government. Her ominous feelings were soon confirmed."

"In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, the Supreme Court clearly stated the constitutional right of the expectant mother to terminate her pregnancy at any time up until the moment the child becomes viable. Solely in the interest of the health of the mother, it is subject to some regulation by a state during the mid trimester and the first part of the third trimester before viability as to such things as to who may perform abortions and where. Otherwise, the right of the mother to rid herself of an unwanted fetus is comparatively unfettered. That choice, said to spring from a right of privacy or of personhood or from her right to determine her own life-style, is surely one of great importance to her. It is so personal to the woman that it is said by the Supreme Court the state may not constitutionally encumber it with requirements of the consent of a husband, if there is one, or of parents, if the mother is young and unmarried. Indeed, the Supreme Court has clearly held that the state may not require a physician who has agreed to perform the abortion to consult another physician. The choice is solely that of the woman with such advice as she seeks or receives from the physician she chooses.[2] In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the Supreme Court explicitly held that until a child becomes viable, the state's only interest in regulating abortions stems from its concern with the mother's health. Until that time, but after the first trimester, the state may regulate the conditions under which abortions may be performed, but only as those conditions relate to the health of the mother. Until the child is viable, the mother's constitutionally protected right to choose to terminate her pregnancy or not to do so must be allowed by the state to prevail over any interest it may have in the preservation of fetal life. Indeed, the Supreme Court declared the fetus in the womb is neither alive nor a person within the meaning of the Fourteenth Amendment. In Planned Parenthood of Central Missouri v. Danford, 428 U.S. 52, 64, 96 S. Ct. 2831, 2839, 49 L. Ed. 2d 788, the Supreme Court explicitly said that viability of the child is a medical concept to be determined by the attending physician, and that a legislature may not place it at a "specific point in the gestation period.""

"Legal research is not unlike looking for a needle in a haystack, and although it has been made easier in recent years by desktop computers and Lexis, a legal database that produces almost instantaneous results, it still tends to be tedious work. One begins with a theory-in Coffee and Weddington's case the idea that the current Texas abortion law was unconstitutional-and then looks for material, either in the form of important law journal articles, precedent-setting cases, or in their case, since material was sparse, prior cases of any kind, to support the theory. Coffee and Weddington spent hours combing bibliographies and indexes for clues to cases or journal articles that might be relevant. The use of the courts to attack the constitutionality of a law was a recent development. As a legal tool, it came into widespread use during the 1950s and 1960s, an era of expansionism in civil rights. Lawyers who chose to challenge laws were often required to mine new territory within the Constitution, to seek connections where none had previously existed. It was exciting and even exhilarating work, but it also required creativity and thoughtfulness and sometimes more than a little daring. Above all, of course, the results had to be persuasive. Both women believed, as did most lawyers working on abortion, that any constitutional challenge to the abortion laws would be based on the Fourteenth Amendment, which guaranteed equal protection under the law. Beyond this, Coffee and Weddington had little idea whether there were other grounds for overturning the laws. They began by looking for other abortion cases, ones that might support their theories or provide new ones."

"Coffee and Weddington found surprisingly little to go on. Few suits had been brought involving abortion, and even fewer were important enough to set precedents. No abortion case had yet come before the Supreme Court, and only a few state courts had dealt with the issue. They found only one recorded case in Texas. Watson v. the State f Texas, decided in 1880, involved a young woman named Mattie Shook, who became pregnant by a man known only as Watson while living with him, his wife, and his children. Because he was a physician, Watson told Shook he could give her a medicine that would cause her to miscarry. Despite taking ergot, the drug he prescribed, even more frequently than he had ordered, she failed to miscarry. A note describing Mattie’s condition was sent to the doctor’s wife, reputedly from Mattie’s fiancé but actually from Mattie herself, and this led to the court case. Mattie Shook Testified against the physician. A lower court found the man guilty of “designedly” administering an abortifacient, an illegal act under the Texas antiabortion law, but a Texas appellate court reversed the lower court on technical grounds. The court’s reluctance to punish the abortionist twenty years after abortion had been outlawed in Texas was interesting and ever persuasive but the case was of little help to Weddington and Coffee, based as it was on a technicality rather than on any constitutional grounds."

"With Younger v. Harris, Justice Blackmun was referring to a controversial case decided on February 23, 1971, sixty days before the Justices voted on April 22 to hear Roe and Doe. For two years, while Justices Hugo Black and John Harlan were still on th Court, the Justices had been immersed in Younger v. Harris, which involved the politically delicate issue of federal court intervention in state court criminal proceedings. Argued three times before it was finally decided, Younger put limits on the power of federal courts to interfere with pending criminal prosecutions in state courts. Younger intersected with the abortion ases filed in federal courts against state laws from 1969 to 1972 because a doctor who was prosecuted for abortion in state court might file a case in federal court to block the state prosecution-the kind of scenario with which Younger was concerned. Thus, Younger overshadowed the abortion cases filed in federal court as a number of points between 1970 and 1972."

"Trump's opportunity to replace Justice Anthony Kennedy, who had voted to uphold Roe in 1992, is "exactly what we had hoped for," said Jim Carlin, an Iowa Republican state senator. "With (Kennedy) as the swing vote, I don't know that we would have had the capital on the Supreme Court to reverse Roe v. Wade," Carlin said. "If we were to get another conservative justice to the bench at the Supreme Court, I think our chances are much, much higher." "Anything that we can do to soften the blow of Roe v. Wade or weaken it or dilute it, it's up to us to do that," said Lawrence Bagley, a Louisiana Republican state representative."

"The 2015 state law says that any physician who "gives, sells, dispenses, administers, or otherwise provides or prescribes the abortion-inducing drug" shall have to have a contract with a physician who has admitting privileges at a nearby hospital. The Supreme Court last month refused to take up an early challenge to the law, which cleared the way for it to take effect in mid-July, but did not say if the law is legal or not, leaving that to a lower court to determine. Earlier this month, a federal judge imposed a temporary restraining order on the law, setting the stage for the case to potentially return to the Supreme Court at some point in the future. Planned Parenthood has said that the law is both medically unnecessary and would effectively ban medication abortion in the state. Elizabeth Nash of the Guttmacher Institute, a reproductive rights research organization, said the Arkansas law "conflicts with Roe by imposing an undue burden on a patient seeking an abortion.""

"In the end, the Supreme Court doesn't have to entirely overturn Roe v. Wade to leave the legal standard substantially weakened or even effectively gutted, said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law. "The Supreme Court could do quite a lot of damage to the right recognized in Roe without ever formally overruling it, simply by upholding state laws that make it harder and harder for women to obtain abortions without banning them," Vladeck said."

"Where Roe prevented any prohibition on abortion before viability, the Doe “health” exception eliminated prohibitions after viability as well. While some realized immediately that the states could no longer prohibit abortion in the first trimester, the full implication of the Supreme Court’s decisions only became clear over time as the lower federal courts decided hundreds of cases in the following decades."

"The two women were grateful that the Texas abortion statute, enacted in 1859, was what reformers referred to as an “old-style” law, compared with the “new-style” reform laws that had been written in the late 1960s. The Texas law was unusually restrictive and permitted abortion only to save the mother’s life, not even in cases of incest or rape. In contrast, the new reform legislation typically added therapeutic exceptions-to preserve the mother’s physical or mental health, to prevent serious fetal deformity, and to terminate pregnancies resulting from rape or incest. In theory these new laws were supposed to make abortion more widely available. In practice they made it less accessible since complicated administrative procedures, such as residency, age, and consent requirements, hindered the abortion process, especially for women who did not know how to cut through red tape. The constitutionality of some of the so-called reform laws was already being challenged in courts, at considerable time and expense. With an old law, a court challenge could be straightforward and uncomplicated, or so the two women hoped. They would not have to spend a lot of time and money amassing statistical evidence that the laws were being administered in a discriminatory fashion, nor would they have to pay expert witnesses to attest to the fact that consent or age requirements denied women access to abortion. Instead, they could base their challenge on a single, straightforward issue, the idea that the Texas abortion law was unconstitutional."

"Coffee and Weddington could not have undertaken the case had they been required to spend much money on it. Their only source of funds was personal, and neither woman earned much money. Since both were now working at full-time jobs, Coffee at her law firm and Weddington as Ft. Worth’s first woman assistant city attorney, all research would have to be done in their spare time. The subject of fees never came up with their clients. The Does were employed but did not earn very much and lived in a tiny one-bedroom apartment, and Norma McCorvey had no home and was barely making ends meet working a part-time as a waitress or bartender. Had the case been undertaken by a major law firm, even on a pro bono basis, considerably more money and manpower would have been devoted to its preparation. A law firm would assign several associates or junior partners to do the initial research; the women had no one but themselves. Fortunately their expenses were minor, consisting only of some nominal court fees."

"Until the 1960s, all but a few of the fifty states prohibited abortion except when necessary to save the life of the mother. These abortion laws were enforced and updated and strengthened during the nineteenth century as medical understanding progressed. As of January 1973, however, thirty states permitted no other exception than to save the life of the mother, and most states actively enforced their abortion laws. Prosecutions against abortionists were pending in many states on the day Roe was issued."

"In the immediate aftermath of the abortion decisions, state officials from Connecticut, Louisiana, Missouri, and Rhode Island sought to reject, or limit, or clarify the abortion decisions, and asked the Justices to reconsider. Rhode Island, in particular, immediately sought to reenact abortion prohibitions, but its law was quickly shut down by the courts."

"In Texas, where abortion was already viewed as a states’ rights issue, the Ninth Amendment was interpreted as reserving to the states all powers not specifically granted to the federal government. Coffee and Weddington were sure that even if they could prove that the present law was unconstitutional, the state of Texas would still be able to make a strong claim that the writing of a new law was up to the state legislature. And the state’s lawyers might even argue that the court had no business striking the law, that this, too, was the province of the legislature. (Opponents would always maintain that abortions should be regulated by the states; they viewed any kind of federal court ruling on the issue as anathema.) Using the Ninth Amendment to strike the abortion laws would, as far as the state was concerned, be like waving a red flag in front of a bull. Despite this, both women saw that the Ninth Amendment offered a substantial ground for recognizing the right to privacy and decided they had to use it."

"Potter [Stewart] pressed for Roe v. Wade and Doe v. Bolton to be heard and did so in the misapprehension that they involved nothing more than an application of Younger v. Harris. How wrong we were."

"For a while, Weddington has hopeful that a plaintiff could be found among the women in the problem-pregnancy counseling group-if not among the organizers, then among the women they counseled. She met several times with the abortion-counseling group to discuss the possibility of developing a test case. She talked about what was needed to overturn the laws, how such a case would proceed, and of the demands that might be made of anyone who volunteered to become a plaintiff. Gradually, though, her hopes faded, at least for finding a plaintiff among the referral group. One problem was that most of the women who sought counseling new they wanted an abortion. The sooner a woman underwent an abortion, the healthier it was for her, and few were willing-or could justifiably be asked-to risk the delay that even brief legal proceedings might entail. The other possibility was to use a member of the referral group who happened to be pregnant, even a woman who did not want an abortion but was willing to claim that she did in order to press an abortion suit against the state. It certainly was not Weddington’s first choice to use a kind of trumped-up defendant, but if no one else turned up, she realized that it might be her only option. That might be more humane in the long run, anyway, since she knew that any suit she filed would most likely not be decided in time for a plaintiff to undergo an abortion. Still another thought was to file a class-action suit using the Austin referral group. The members were eager to help in any way they could, so much so that when Weddington once asked if anyone in the group happened to be pregnant, several voices chorused, “No, but that can be arranged.” The problem with using the group was that at least one plaintiff had to be representative of the class. In this case, that meant pregnant and desiring an abortion."

"Roe and Doe began, in the Supreme Court, as a serious procedural mistake that left the Justices without any factual record to consider the complex historical, legal, medical, and constitutional issues surrounding abortion. At least some justices decided to hear the case under the “misapprehension” that they were dealing merely with procedural issues. Justice Blackmun related this mistake to at least two people, and it is confirmed by the briefs in the abortion cases, the Justices’ papers, and the oral arguments. Blackmun told the story to Chief Justice William Rehnquist in July 1987, as the Supreme Court confirmation hearings for judge Robert Bork were hearing up in the U.S. Senate. In a July 16 letter to Blackmun, Rehnquist shared his concerns that the Court would be short-handed without a full bench of nine Justices in the fall, if Bork wasn’t confirmed or the hearings were prolonged. Blackmun wrote back on July 20 to allay Rehnquist’s concerns with his story of how Roe was selected in 1971 by a subcommittee of Justices that Chief Justice Burger assembled to avoid “controversial cases” while the Court was shorthanded with two vacancies after the sudden retirements of Justices Hugo Black and John Harlan in September 1971."

"The first order of business was to find s suitable plaintiff. Thinking that their best resources were the numerous feminist organizations that they had joined, each woman stepped up her activities, Weddington in Austin, where she was still living at that time, and Coffee in Dallas. Both women made themselves available as speakers on the subject of abortion. They gave speeches intended to educate women on the need for abortion reform, but always, as they made the rounds of various women’s groups, the more traditional volunteer groups as well as the feminist ones, each was looking for a certain kind off woman, someone with the potential to become an abortion-case plaintiff. It was also not unusual for a lawyer who was looking for a plaintiff in a test case to put out feelers among his or her colleagues to be on the lookout for someone suitable, and Coffee had done that in Dallas."

"Coffee, too, had begun to do more public speaking in Dallas in an attempt to find a plaintiff. One night, at a meeting of a feminist-oriented group, Coffee was approached by a couple who began to talk to her about her work in abortion reform. Eventually the couple got around to suggesting that they might be willing to become plaintiffs in an abortion support. The woman told Coffee that since 1968 she had suffered from a neural-chemical condition that caused backaches and depression severe enough that her physician had suggested she not become pregnant for the time begin. She had to stop using the Pill, then the most reliable form of birth control, because it blurred her vision. Four months after the onset of her physical problems, she had become pregnant. Apart from her illness, she and her husband did not feel they were ready for a child, so they decided on an abortion. Through an abortion-counseling service, the woman had made arrangements to obtain an abortion at a clinic outside the United States. Despite using contraception the couple were worried that the woman might become pregnant again. They could not afford another abortion if it meant travelling outside the country. In an interview they would later give to Barbara Richardson, a reporter for the Dallas Times Herald, they shed more light on their willingness to become plaintiffs. Both felt a “moral imperative” to help legalize abortion. The husband added: “Our personal, moral, and ethical codes were outraged by the law.” On the one hand, coffee thought the couple would make excellent plaintiffs. They were impressive: young, married two years, both professionals with advanced degrees churchgoing Methodists, active and involved in community life, and most important, they had an excellent reason for using abortion as a method of backup birth control. On the other hand, there were problems with using them, not least of which would be the need to explain to the court why the woman’s own physician had not done an abortion when she became pregnant. Coffee suspected that although the woman’s physical condition was serious, it was not really so threatening that she could not bear a child. The biggest drawback to using the couple as plaintiffs was that their case was weak, legally speaking. Like most other states, Texas permitted abortion to save the mother’s life, and the present law could easily be interpreted as sufficient to cover their situation. Coffee believed the case would be thrown out of court on the grounds that it involved no controversy. Such an evasive action would have particular appeal, Coffee feared, to a judge who was not eager to become involved in something as controversial as abortion. Despite several major disadvantages to using the couple, Coffee decided to go ahead and try to build a case around them anyway, largely because in several months of looking for a plaintiff, she had not found anyone else. Meanwhile, she would continue her search. The young couple were eager to protect their anonymity, so they agreed with Coffee to be known only as John and Mary Doe."

"The procedural complexities were not something to be lightly dismissed. Indeed, they were asking some of the biggest questions about Roe: Should the Justices decide this issue? Should they decide it without any factual record? Or without review first by a federal appellate court? Could Jane Roe or Mary Doe clearly and accurately represent the facts of the abortion controversy? Could they represent the “class” of women seeking abortion? Should the Supreme Court sweep away an important area of criminal law and public health? Roe started with all these procedural questions, until several Justices found a way to get around them. Justice Brennan suggested a way, after the first oral argument, in a December 30, 1971, memo to Justice Douglas: [T]here would seem to be a number of threshold issues that are of varying difficulty. Some, I think, must be expressly addressed, while others perhaps require no discussion or should be simply finessed. None, in my opinion, forecloses decision on the crucial questions here-the existence and nature of a right to an abortion."

"The procedural complexities meant that the lawyers and the Justices spent so much time on procedure during the first round of arguments in December 1971 that precious little time was left for the substantive, constitutional questions. In the first argument in roe on December 13, 1971, Justice Stewart posed the second question of the morning to Sarah Weddington, emphasizing that “a good many threshold questions . . . of jurisdiction” needed to be addressed. According to Woodward and Armstrong’s account, the jurisdictional issues didn’t take a backseat to the question of a right to abortion until after the first oral argument, when the Justices met in conference* to vote on Thursday, December 16, 1971. Mitchum v. Foster, a case with a “similar question of jurisdiction,” was argued on the same Monday as the abortion ases, and the Justices discussed Mitchum before Roe and Doe that Thursday. The discussion of Mitchum among the seven justices present at that conference (Justices Powell and Rehnquist did not join the Court until January 1972) ended with a vote of Stewart, Douglas, Brennan, and Marshall for “taking jurisdiction” in Mitchum. Woodward and Armstrong recorded what was apparently Douglas’s conclusion that day: Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court fund itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions? If the Court had jurisdiction, and such federal challenges to state laws could be filed in federal court, the Justices should have limited the decisions in Roe and Doe to the jurisdictional issue, and looked for new abortion cases with a factual and medical record. Though this oversight seems minor, it was a blunder that skewed the Justices’ consideration of abortion for the next thirteen months. By crushing aside these procedural questions, and deciding the abortion issue with no factual record, the Justices stumbled into an enduring controversy."

"The Texas abortion law consisted of six separate articles: Article 1191. Abortion If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or any means whatever externally or internally applies, and thereby procure any abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. BY “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that premature birth thereof be caused. Article 1192. Furnishing the means Any person who furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice. Article 1193. Attempt at abortion If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars. Article 1194. Murder in producing abortion If the death of the mother is occasioned by an abortion so produced or by an attempt to affect the same, it is murder. Article 1195. Destroying the unborn child Whoever shall during parturition of the mother destroy the vitality or life in a child ina state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years. Article 1196. By medical advice Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother. Weddington and Coffee decided they would challenge the constitutionality of Articles 1191 through 1194 and 1196. Article 1195, which referred to the destruction of the fetus during the process of birth, could be read as a straightforward malpractice law, so they felt no challenge was necessary."

"The contrasts between marital privacy in Griswold and abortion in Roe and Doe are striking. Griswold emphasized marriage-a right and a relationship protected by the law for centuries. American law never recognized a “right” to abortion before some states legalized abortion between 1967 and 1970. And marriage was never considered in American law or tradition to include a right to abortion, any more than marriage included a “right” to infanticide or adultery. Griswold was about the marital bedroom; abortions aren’t done in bedrooms. The Connecticut statute prohibiting marital use was one-f-a-kind; no other state prohibited the “marital use” of contraception. But in 1972, after virtually all fifty states had seen legislative and public debate, thirty states retained their prohibitions on abortion except to save the life of the mother, and the other twenty retained abortion laws that did not allow abortion as broadly as the “right? Eventually created in Roe. Many states had rejected “reform” laws, and nearly all had rejected “repeal” laws."

"If Griswold was expressly based on marriage, how could it be cited as a precedent for abortion? One attempt to build a bridge from Griswold to abortion that proved very influential was a law review article advocating legalized abortion published in the fall of 1969 by retired Supreme Court Justice Tom Clark. Clark had been attorney general in the Truman Administration and then served on the Court from 1949 to 1967. He had joined Douglas’s opinion in 1965 to strike down the Connecticut contraception law in Griswold before retiring in 1967. Clark’s article was cited by numerous lawyers and lower court judges. It was quoted to the Justices by Professor Norman Dorsen in January 1971 during his oral argument against the District of Columbia’s abortion law in United State s v. Vuietch. It was quoted by Justice Douglas in his dissent in Vuitch, and by Justice Brennan in his December 30, 1971, letter to Douglas outlining Brennan’s view that the right of privacy included abortion. And Justice Douglas cited the article in his concurring opinion in Doe v. Bolton."

"Clark’s article was brief and published in the second volume of Loyola of Los Angeles Law Review, an obscure journal. He claimed that “the demand for abortions has increased astronomically” without citing any statistics. He spent paragraphs on religious debates about “ensoulment,” a topic irrelevant to American abortion law since colonial times. He cited the New York Times for many sociological assertions. And Clark gave no thought whatsoever to the possible risks to women from abortion. There was very little “law” in the article-just a few Supreme Court precedents and several citations to the Griswold case. Clark admitted that the Supreme Court “has not, however, dealt directly with the problem under discussion [abortion], nor do the decided cases cast much light on its solution.” Clark didn’t discuss the extensive enforcement experience with American abortion statutes, or the case law across fifty states applying abortion statutes, and he only touched on the developing law of prenatal injury and wrongful death involving the unborn child."

"In all their hours of planning and speculating, the one thing the two young, inexperienced lawyers never discussed or even considered was their boldness in planning to challenge a state law. This was because the idea of taking on a state government or even the federal government, for that matter, was not as unusual or difficult a task in the late 1960s as it has since become. In those heady days of civil rights activity, countless lawyers, many of them fresh out of law school and imbued with a sense of idealism, were hoping and praying to make their mark somewhere. At issue was not so much whether they would challenge a law, but which law they would challenge. Coffee and Weddington later admitted they were simply too young and inexperienced to understand fully what they were taking on. In one of her rare expansive moods, Coffee told me, “When you’re young, you have high aspirations, and you just do what needs to be done.”"

"The constitutional amendment that offered the most support for overturning the abortion laws, at least in the eyes of many legal experts, was the Fourteenth. Generally, it guaranteed every person equal protection under the law. Specifically, the due process clause of the Fourteenth Amendment required that laws be written clearly enough or the average person to understand. A law that was vaguely written for example, was unconstitutional because it caused confusion about who was protected by it and the circumstances under which protection was extended-the very thing physicians objected to about the abortion laws."

"If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. There are three problems with this. First, Eisenstadt was a case based on the Equal Protection Clause of the Fourteenth Amendment, not a privacy case, so Brennan’s reference to privacy was gratuitous dicta,” in the words of Edward Lazarus, a former law clerk to Justice Blackmun. The second is the logical fallacy in the bare assertion “if the right of privacy means anything, it is. . . . “ This is a classic ipse dicit (“It is true because I say so.”). It is simply an assertion of judicial will. Start with the abre assertion, and the sentence can be finished with anything, or at least anything that can be politically sustained."

"As Lazarus has written, “Brennan knew well the tactic of ‘burying bones’-secreting language in one opinion to be dug up and put to use in another down the road.” Lazarus continues: Eisenstadt provided the ideal opportunity to build a the rhetorical bridge between the right to use contraception and the abortion issue pending in Roe. And taking full advantage, Brennan slipped into Eisenstadt the tendentious statement explicitly linking privacy to the decision whether to have an abortion. As one clerk from that term recalled, “We all saw that sentence, and we smiled about it. Everyone understood what that sentence was doing.” It was papering over holes in the doctrine."

"Finally, the three women discussed the publicity that would quite likely ensue from the case. Abortion was rapidly becoming a hot topic with the media, and hardly a week went by without another newspaper series, editorial, or nationwide poll pointing out the mounting pressure for reform. Although the subject had been taboo only two or three ears ago, women’s magazines now wrote regularly about abortion-usually touting reform. Weddington and Coffee suspected that a torrent of publicity would begin once the press got wind of their suit. With it, they feared, might also come some harassment of their client or, at minimum, the loss off her privacy. The latter would be more overwhelmingly intrusive than she might imagine, they warned. They could try to protect her from it but might not be able to do so. If the court insisted that she appear or testify, they would not be able to keep the press from identifying her and delving into her background. The press would be eager to interview her. She would, they warned, become the “human interest” in an otherwise relatively dry legal case. Norma’s fears about publicity had more to do with her family than anything else. Her father was a Jehovah’s Witness, and her mother was nominally a Roman Catholic; while neither parent was particularly religious, she worried that they might have strong antiabortion opinions. They had never expressed any feelings one way or the other about abortion, but then she had not told them she was trying to get one."

"The second time the three women met, the lawyers explained to McCorvey that in all likelihood she would have to go ahead and have her baby if she became their plaintiff. They told her there was almost no chance that a court would decide her case in time for her to get an abortion, and that possibly the law would not be overturned at all. Coffee and Weddington offered to help Norma get an abortion if she wanted one. They felt honor-bound to do so. There was a slight chance that they could still use her as a plaintiff even if she got one. Coffee thought they could perhaps build a case around the argument that their client had been forced into a dangerous, possibly septic and illegal act, and that it was violation of her (and by implication, other women’s) civil rights to put her in this position. Both women knew, however, that they were are more likely not to use Norma as their plaintiff if she got an abortion They would probably go looking again for a pregnant woman who would be willing to be their plaintiff. Norma turned down their offer and agreed to go ahead and have the child. Although Weddington would recall that her motives for doing so had been largely altruistic, her decision was also undoubtedly motivated, at least in part, by the simple fact that four months into her pregnancy she was not likely to get an abortion anyway. After three months, abortion was done by a mini-Caesarean section and was considered major surgery. Rarely could a “legal” hospital abortion be arranged at that stage, and illegal abortionists never risked this kind of surgery. In another fifteen years, the technology would be developed to make late abortions safe, but in 1969 it did not yet exist. The next thing Coffee and Weddington brought up with Norma was how long the case might take-months or even years, if it were appealed. Although the legal maneuvering would be complicated and difficult for any layperson to understand, they promised they would do their best to keep her informed throughout the case."

"The Court did not create a right to abortion in Vuitch, but upheld the D.C. law. Vuitch’s lasting significance was that the Justices endorsed a broad, indeed unlimited, interpretation of “health of the mother” as a reason for abortion, which they subsequently adopted in Doe v. Bolton."

"If Black and Harlan had remained on the Court throughout the deliberations in the abortion cases, there are strong reasons to believe they would have voted against creating a constitutional right to abortion, and left the abortion issue to the democratic process in the states. Black not only dissented in Griswold, but he also expressly rejected a right to abortion during the Justices’ discussion fo the Vuitch case in early 1971. According to Professor Jeffrey Rosen, “Black, who scorned Douglas’s whole idea of penumbras and emanations, had made clear that he opposed a constitutional right to abortion during discussions [in Vuitch].”"

"Ultimately Norma decided to go ahead with the lawsuit but indicated she wanted as little publicity as possible. She specifically did not want her parents or her daughter to know of her role in the case. Nor would she tell her friends. When Coffee and Weddington suggested the use of a pseudonym, she readily agreed. It would at least offer her some protection. They quickly settled on Jane Roe. Coffee and Weddington would prove to be quite successful at protecting their client’s privacy. Over the years, reporters would occasionally try to discover Jane Roe’s identity, usually on important anniversaries of the case. Her lawyers grew so used to her refusals to grant interviews that they no longer called her with requests. For ten years, until Norma herself broke the silence, no one, not even other lawyers who would work on the case knew who Jane Roe was. When McCorvey broke her silence in the early 1980s, she talked only to a handful of reporters and writer before engaging the services of an entertainment lawyer in Dallas. After that, she would only agree to be interviewed if she were paid."

"After hearing so much about McCorvey’s background, Weddington and Coffee became concerned that she might not be such a good plaintiff after all. Her life thus far-a high school dropout, married at sixteen, a daughter she did not have custody of, walking out on a visit with her daughter to join a carnival, her present hand-to-mouth existence-was a major problem. Another problem was the rape. In our talks, both Weddington and Coffee recalled that it was a delicate issue. Sensitive as the two women were to any woman’s claim that she had been raped- a claim that was too often ignored or, worse, challenged-they were also lawyers, trained to size up a potential witness’s credibility. And whatever had happened to Norma McCorvey, they did not feel that she would be a credible plaintiff in a rape case, let alone in an abortion case involving a rape. Coffee in a particular was struck by McCorbey’s lack of emotion when she described the rape at their first meeting. Some rape victims are stoic, even with the people who try to counsel or otherwise help them, but McCorvey’s remarkably unemotional recounting of how she had been raped made her lawyer uneasy. McCorvey was vague about the circumstances of the rape, and her story became more unclear and the details more bizarre with each retelling. She told Coffee and Weddington she had not gone to the police or filed nay kind of official report. Initially, she said she had been raped by one man; she later changed her story and claimed she had been gang-raped, sometimes by several men and her female companions, sometimes by a white, black, and Hispanic man, a highly unlikely combination to have been walking together down a Georgia country road late at night in 1969."

"Although this was something they had yet to research, Weddington and Coffee thought they could take their case into a federal court, that this was the proper forum for challenging a state law. It offered the possibility of a more encompassing decision, one that could set a precedent for decisions outside Texas. But it also made their case more difficult. The federal courts, ever wary of states’ rights issues, were being ultracautious, largely because of some recent ruling involving criminal cases in which they were perceived, at least by some, as having overstepped their power to rule on state laws. In fact, there was every reason to believe that a federal judge would be even more reluctant than a local or a state judge to issue a restraining order that would overturn a state criminal law. Apart from all these considerations, even if they did find judge willing to issue a TRO, they would still have to find a physician willing to do the abortion. That they suspected would be an impossible task as long as the law was still in limbo and the physician might risk later prosecution. The first and most difficult decision the two lawyers made, then, was not to seek a TRO for Norma, even though that was her only chance for getting court permission in time to have a legal abortion. Since she wanted an abortion badly, this might mean she was not the best plaintiff for them after all. They needed to impress upon her exactly what this meant-namely, that she would most likely have to go ahead and have the baby if she became their plaintiff."

"And that again is one of the great problems with this case. We know o no facts, there are no facts in this case, no established facts."

"I will be God-damned! At lunch today, Potter [Stewart] expressed his outrage at the high handed way things are going, particularly the assumption that a single Justice if CJ [Chief Justice] can order things his own way, and that he can hold up for nine anything he chooses, even if the rest of us are ready to bring down 4-3’s for example. He also told me he . . . resents CJ’s confidence that he has Powell and Rehnquist in his pocket. Potter wants to make an issue of these things-perhaps fur will fly this afternoon."

"Weddington and Coffee wondered whether McCorvey had, I fact, been raped, but regardless of the circumstances, they were concerned that the rape not become an issue in their case. Rape victims did not fare well in court. Their lives were often subjected to excessive scrutiny. In fact, much more attention was typically focused on the character of the women who were raped than on the men who raped the, and women who pressed rape charges frequently had to prove that they had not in some way “invited” the rape. Beyond that, there was the problem of blame-and punishment. However much rape (and, for that matter, abortion) laws appeared to be neutral, they were not. They were based at least in part on society’s standards and expectations regarding sexual mores. Therefore, a woman who was perceived as having “invited” a rape was seen as having gotten what she deserved, and similarly, a woman who “needed” an abortion had better be prepared to prove that she deserved one."