In Our Time: Memoir of a Revolution (20 page)

Back east, the legislative victory in Albany had mooted the New York women’s law
suit, but the concept of a federal challenge, which Nancy Stearns had pioneered, was taken up by feminists in four neighboring states. Activists signed up plaintiffs by the hundreds for class action suits in
New Jersey, Rhode Island, Connecticut, and Massachusetts. A new wave of feminist law students recruited a slightly older generation of women lawyers and aided them in writing the briefs. New Jersey’s challenge, with six hundred plaintiffs, took off when some Rutgers law students approached Nadine Taub, an American Civil Liberties Union lawyer in Newark. Working with Stearns, Taub copied whole sections from the New York suit before adding her own distinctive spin: an argument based on the Nineteenth Amendment (women’s suffrage). After a roaring start, justice moved slowly for the New Jersey women. Two years were frittered away by a blanket of silence from the court before the case was decided favorably, too late to make it a contender for Supreme Court consideration.

Activists in Connecticut were opposed at every turn by the state’s antiabortion governor, Tom Meskill, but they found the perfect attorney in Catherine Roraback, the New Haven lawyer who was handling the highprofile defense of Black Panther Ericka Huggins, charged with Bobby Seale in the murder of a Panther informer. A decade earlier the redoubtable Katie Roraback, a member of the National Lawyers Guild and an attorney for Planned Parenthood, had been instrumental in
Griswold v. Connecticut
, the landmark Supreme Court decision that legalized birth control for married women.

Women Versus Connecticut, the suit’s organizing coalition, was based in New Haven, the home of community activist Betsy Gilbertson and Yale law students Gail Falk and Ann Freedman, the three main campaigners. Roraback invited Nancy Stearns to help write the brief, and added on female lawyers in Bridgeport and Hartford to strengthen the suit’s geographic representation. A total of 850 plaintiffs signed on for the abortion-ban challenge that was filed in March 1971 as
Abele v. Markle
. Demonstrators waving banners and placards gathered on the steps of the New Haven post office to celebrate the occasion.

Abele
was dismissed two months later, when a judge ruled that the 850 plaintiffs lacked legal standing because they were not pregnant and thus had “an insufficient personal stake in the outcome.” The legal setback increased the group’s militance. Roraback argued on appeal that all women of childbearing age in Connecticut had a direct personal stake in the outcome. While the lawyers “kept stuffing the court with paper,” as Ann Freedman phrased it, a growing army of activists drummed up more litigants at public meetings throughout the state. Two thousand plaintiffs, including two verifiably pregnant women who later sneaked into New York for their terminations, signed the second version of
Abele
, making it the largest grassroots challenge to an abortion law in the country. The Connecticut suit was in district court when the Supreme Court agreed to hear arguments in
Roe v. Wade
, a single-plaintiff case that had gotten an earlier start in Texas.

Women’s Liberation had come to the University of Texas at Austin by a familiar route—in reaction to the macho posturing at an SDS convention. Austin was a happening place in 1969. The pleasant state capital was the nerve center of Texas politics, while its university enjoyed a reputation as the Berkeley of the Southwest. Radicals and hippies read and wrote for
The Rag
, a brash counterculture gazette that was one of the best in the nation. When SDS converged on the Austin campus in March 1969, it was already in its death throes, beset by warring factions. Fistfights broke out on the convention floor as Progressive Labor battled Revolutionary Youth Movement II, soon to be Weatherman. After the SDS debacle, three graduate students in the school’s zoology department started a consciousness-raising group to give voice to ideas they had not been able to express at the chaotic convention.

At five feet eleven with hair that fell below her shoulders, Judy Smith was the soul of the weekly meetings. Judy had majored in chemistry at Brandeis and had spent a year in the Peace Corps in West Africa before coming to Austin. Bea Durden, a mother of two, had a Ph.D. in biology from Yale. Victoria Foe was the third campus organizer. As the
group coalesced it was joined by Sarah Weddington, a minister’s daughter from Abilene and a recent graduate of the university’s law school, where she was teaching. Sarah’s bubbly presence in skirts and stockings in the usual pool of jeans and sandals was a sign to the others that Women’s Liberation was attracting a mainstream constituency undreamed of by the left.

Austin Women’s Liberation set up a table on the quad every morning to distribute a birth control handbook put out by McGill University students in Montreal. At their weekly meetings they discussed “Women and Their Bodies,” an early mimeographed version of
Our Bodies, Ourselves
by the Boston Women’s Health Book Collective. Their own feminist essays, most often Judy’s, appeared in
The Rag
. Through Liberation News Service, a mail packet of leftist news
The Rag
subscribed to, they kept abreast of the movement in other cities.

By October the activists had opened a Women’s Liberation Birth Control Center in space shared by
The Rag
at the YMCA across the street from the campus. For a slogan they chose “Every woman has the right to control her own body.” As the need became clear, they took on abortion referrals, building a list of practitioners in Dallas, San Antonio, and the border towns in Mexico. Drawing on the testimony of five women, they held a Redstockings-style speak-out at the student center. Their next bold move was to challenge the state law through the courts.

Judy Smith came up with the idea of launching a legal assault. She knew
The Rag
had been successful in its lawsuit to keep the university regents from banning the paper on campus. In addition, she was vaguely aware that women had sued for abortion rights in New York. Smith and Bea Durden cornered Sarah Weddington in her backyard during a November garage sale for the Austin Birth Control Center. They told her they wanted the Center to serve as the plaintiff, and she was the only lawyer they knew who might take the case without a fee. Weddington protested that she lacked courtroom experience and the backing of a law firm before she allowed herself to be persuaded. She had a secret that she chose not to reveal for another twenty years. Before her marriage she had gone to one of those dismal border towns in Mexico for an illegal abortion.

By December, Weddington had found an eager co-counsel in Linda Coffee, one of two other women in her graduating class at the UT law school. “I’ve always said that Linda was smarter than me,” Weddington laughs. “She was on
Law Review
, I wasn’t.”

Shy and retiring, Linda Coffee had taken a job in her hometown of Dallas with a firm that specialized in bankruptcy cases. More relevant to the women’s incipient project, she had just finished a year clerking for Sarah Hughes, the federal judge who’d sworn in Lyndon Johnson aboard
Air Force One
after the Kennedy assassination. Hughes, in her mid-seventies, was known for her outspoken views on women’s rights. The novice lawyers figured it would be a smart move to get their suit before her jurisdiction.

Linda Coffee did not think the Austin Birth Control Center would survive the hurdle of legal standing. Under her reading of the law, the best plaintiff would be a pregnant woman who could not obtain a legal remedy in the state of Texas. Any person or entity falling short of that procedural ideal could be mooted by the court. “When I’d worked for Judge Hughes, I’d seen some civil rights and First Amendment cases that had gotten into standing problems,” Coffee explains. “Many times courts would use standing, a procedural point, to avoid deciding an issue they didn’t want to meet head-on.”

Weddington broke the bad news to the Austin activists, who agreed to hunt for an ideal plaintiff. They came up dry. The UT students who passed through the Center wanted a speedy termination, not a lawsuit, so they could get on with their lives.

In January 1970 a friend of Coffee’s who handled adoptions steered the clientless litigants to Norma McCorvey, a hard-luck, itinerant bartender in Dallas who lacked the resources to cope with her third pregnancy in six years. McCorvey’s first child lived with her parents; the second had been given up for adoption at birth. This time she wanted an abortion, and had cooked up a tale about gang rape on a dark rural road in
Georgia, a story that could not have gotten her a legal abortion in Texas even if it had been true.

The twenty-two-year-old was already too late for a routine termination. Over four months pregnant and showing when she met the two lawyers at a Dallas pizza parlor, she still hoped they could lead her to
one of those mysterious doctors she knew were out there. Delicately they confirmed that she was too far along for a Mexican D & C through the illegal route. Uncertain about the timetable of a court case but with nothing to lose, McCorvey agreed to be Weddington and Coffee’s pseudonymous “Jane Roe.” Coffee drew up the papers and paid the filing fee for
Roe v. Wade
in March 1970. (Wade was the district attorney for Dallas County.) To be on the safe side, she and Weddington later amended the documents to make
Roe
a class action on behalf of all pregnant women in Texas.

Roe
was argued in May without the presence of McCorvey, by then eight months pregnant, before a federal panel of three judges that included Sarah Hughes, the jurist the litigators had hoped for. Less than a month later the panel reported its favorable decision, and the state of Texas appealed.

Another southern state was proceeding apace. In 1968 a group of physicians and social workers in Georgia had persuaded the state legislature to pass a law permitting therapeutic abortions in rape and incest cases and to preserve a woman’s life and health. Two years later, in response to the new feminist militance sweeping the country, many of the same reformers were working to repeal the law, which now looked too restrictive.

Judith Bourne, a trained nurse in Atlanta and a central figure in the repeal campaign, picked up on the idea of a women’s challenge through the courts. She found an enthusiastic attorney in Margie Hames, a volunteer counsel for the ACLU. Nine months pregnant with her second child, Hames turned to her colleagues, Tobiane Schwartz of the ACLU and Elizabeth Rindskopf of Legal Aid, for help.

The Atlanta lawyers did not have to wait long before they acquired an unhappily pregnant plaintiff. Twenty-two-year-old Sandra Bensing had put two kids in foster care and farmed out a third baby for adoption. Her husband had a criminal record for child molestation. Citing depression and a prior stay in a mental hospital, she had applied for a therapeutic abortion at Grady Memorial and had been rejected under the hospital’s rigid quota system. An intake evaluator sympathetic to
her plight put her in touch with the activists, who sent her on to the lawyers. In April 1970, Bensing agreed to be “Mary Doe.” The activists then arranged for her to have a therapeutic abortion at another hospital in Atlanta, but the conflicted young woman failed to keep the appointment. She had skipped town with her husband, who was evading some fresh troubles with the law.

Margie Hames received a frantic call from her elusive client one week before
Doe v. Bolton
was scheduled to be heard in court. Stranded and broke in Oklahoma, Bensing was willing to come back to Atlanta and continue the suit if someone paid her airfare, but after feeling the baby kicking inside her she was no longer interested in having an abortion. Hames knew that her client’s pregnancy made for a stronger case.

Doe v. Bolton
drew an overflow crowd on Monday morning, June 15, when it was argued before a three-judge federal panel. Tobiane Schwartz had collected Bensing at the airport on Sunday and driven her to Margie’s house for a fresh change of clothes and a briefing on what to expect in court. Leaving nothing to chance, Tobi made up a bed in her own house to seclude the jittery plaintiff for the night. By a prearranged plan, the following morning a dozen women in advanced stages of pregnancy deployed themselves around the hearing room to shield Bensing’s identity from curious reporters. Seated at the counsel table, lawyer Elizabeth Rindskopf, too, was visibly pregnant.