In Our Time: Memoir of a Revolution (22 page)

In May 1971 the
Supreme Court had sent notice that it would hear arguments on the merits of
Roe
in Texas and
Doe
in Georgia, the two pregnant-plantiff cases that had sailed through their respective district courts and gone up on appeal. Margie Hames and Sarah Weddington conferred by telephone. They agreed that the Court might have chosen to hear any one of a number of abortion cases that were floating through the judicial system. Some of the criminal defense cases had been bumping along for a lot longer than the challenges brought on behalf of pregnant women. By choosing
Roe
and
Doe
, the Court was saying that it wished to focus on women’s rights.

Roy Lucas in New York certainly thought so. At NYU law school, Lucas had been a contemporary of Nancy Stearns’s, the woman who later initiated the strategy of suing the state on behalf of women, although their paths had seldom crossed. The experience of accompanying a girlfriend to Puerto Rico for an illegal abortion lay behind an article he wrote for the
North Carolina Law Review
in 1968 proposing a federal challenge to the state codes; however, the strategy he put forward was a lawsuit filed by prominent doctors. Lucas subsequently became a maestro of litigation, initiating the doctors’ suit in New York that was consolidated with the women’s class action, insinuating himself into
Vuitch
, popping up in a half dozen states after sensing physician interest, and departing more frequently than not with a retainer as
the attorney of record. His relations with Planned Parenthood and the ACLU grew chilly when lawyers in those organizations felt that the helpful young man had a nasty habit of hogging the credit, but nobody ever said that Roy Lucas was slow on his feet. Lucas had pinned his hopes and his place in history on the doctors’ cases. Now it was apparent that he had been barking up the wrong tree.

Hastily he volunteered his services to Margie Hames in Atlanta, who curtly informed him that the ACLU was providing the help she needed. Next he placed a call to Sarah Weddington in Austin, who was delighted to be offered free lodgings
in New York, a city she had never visited, while Lucas strengthened the technical points of her Supreme Court brief. It was an offer that Weddington soon regretted. Her lodgings were a lumpy sofa in the switchboard room of a rundown abortion clinic while the enterprising young man, behind on his numerous appeals in other cases, treated her like a secretary. “I was the best typist,” she relates, “and I would have done anything to speed up the process. I just wanted to get the brief done and go home.” By the summer’s end, Lucas had badgered her into agreeing that he, with his vastly superior experience, should argue
Roe
before the Court for the good of the case and all that it stood for.

“He was really presumptuous,” exclaims Linda Coffee, whose fulltime job had kept her in Dallas. “He even sent the Court a letter saying that he was Roe’s lead counsel.” Coffee and an entire chorus of outraged women, from Nancy Stearns in New York to Judy Smith and Bea Durden in Austin, set matters right again.
Roe
was a women’s case, and a woman was going to deliver its message to the men of the high court.

On December 13, 1971, Weddington and Hames were in Washington for their oral arguments in
Roe
and
Doe
. Court watchers joked that it looked like Ladies’ Day. Not only were the wives of five justices conspicuously present, the Georgia attorney general’s office had selected a woman, Dorothy Beasely, to represent the state’s interests. Only seven members were sitting on the bench. President Nixon’s appointees for two vacated seats, Lewis Powell and William Rehnquist, were not to be sworn in until January.

Weddington began her thirty-minute presentation by stating the
classic Women’s Liberation position: “Pregnancy to a woman is one of the most determinative aspects of life. It disrupts her body, it disrupts her education, it disrupts her employment, and it often disrupts her entire family life. If any rights are fundamental to a woman, she should be allowed to make the choice whether to terminate or continue.”

Under prodding from Potter Stewart, who wanted to hear the constitutional basis, Weddington said she rested her case on the Ninth and Fourteenth amendments, on due process, on equal protection, and on
Griswold
.

“And anything else that might obtain?” Stewart interjected, drawing a laugh.

Stewart drew laughter again when Texas district attorney Jay Floyd argued that a woman makes her choice “prior to the time she becomes pregnant.”

“Or maybe when she decides to live in Texas,” the justice retorted. “There’s no restriction on moving, you know.” The new freedom to secure an abortion in several states, and in the nation’s capital under a stunning ruling in
Vuitch
by Judge Gerhard Gesell, lay behind the gibe.

Justice Harry Blackmun leaned forward during Margie Hames’s presentation to question her intently about Grady Memorial’s denial of an abortion to “Mary Doe.” Dorothy Beasely devoted her time to an explication of the rights of the fetus.

The Court’s deliberations remained a tight secret at the time. Now we know that when the justices took their informal poll, a majority of five—William O. Douglas, Thurgood Marshall, William Brennan, Stewart, and Blackmun—wanted to strike down the restrictive state laws, although their philosophic approaches were far from united. Chief Justice Warren Burger, in the minority with Byron White, assigned the majority opinion to Blackmun, his close ally. By doing so he finessed the last of the great liberals, William O. Douglas, who was itching to write the opinion on the broad constitutional basis of a privacy right, and who was entitled to the assignment, by Court tradition, as the majority’s senior member.

Harry Blackmun was a slow and tentative writer who did not enjoy charting new paths for the law, but he was strong on medical issues
from his years as counsel to the Mayo Clinic in his home state of Minnesota. Blackmun made little progress during the next few months and asked for an extension. Burger informed the justices that the abortion cases would be held over for reargument in the next calendar term. Reargument was rare in Supreme Court deliberations, but the chief justice was following his political instincts. The controversial decision would go down better with the American public if nine justices, not seven, were involved in the opinion.

While Burger stalled and Douglas fumed and Blackmun studied the
Roe
and
Doe
amicus briefs that spring, the
Women’s Rights Law Reporter
, put out by feminist law students at Rutgers, heralded what it called an “onslaught”
of litigation. Compiling a list of state and federal challenges to the constitutionality of abortion laws, the editors reported activity in twenty-nine states and the District of Columbia. Suits ran the gamut from
Tennessee Woman v. Peck
, brought by one pregnant plaintiff, to the huge class actions, such as
Beebe
in Michigan, with 830 women plaintiffs, and
Ryan
in Pennsylvania, on which more than one thousand women had placed their names.

In addition to the plaintiff suits, a pair of defense cases had become rallying points for feminists around the country. Dr. Jane Hodgson, the only female obstetrician in St. Paul, was appealing her Minnesota conviction for performing a therapeutic abortion on a patient exposed to rubella, the German measles virus known to deform a fetus; in Florida, Shirley Ann Wheeler, twenty-three, had been convicted of manslaughter and sentenced to two years’ probation for having an abortion. Dr. Hodgson had deliberately put herself forward as a test case for the state of Minnesota, and a prominent physician at the Mayo Clinic was among her supporters. Shirley Ann Wheeler had staggered into the emergency room of a Daytona Beach hospital hemorrhaging from an incomplete abortion, and the law had moved in when she refused to divulge her practitioner’s name. Aided and promoted by WONAAC, Wheeler became the subject of a
New York Times
profile. Dr. Hodgson went on a public-speaking tour.

Gloria Steinem’s
Ms
. magazine made its debut with a test-run issue in the spring of 1972. Eager to make a mark in the reproductive rights debate, the editors borrowed a tactic from feminists in France and
came up with a declaration, “We Have Had Abortions,” addressed to the White House. Barbara Tuchman, Lillian Hellman, Anne Sexton, Judy Collins, and Billie Jean King were among the fifty-three signatories. Three years earlier both the declaration, and
Ms
. itself would have been inconceivable. (Gloria and I were on the list of signatories, but Jane O’Reilly, whose attempted abortion in 1957 had failed, felt she had to exclude herself. Still, her lead piece for the premier issue best defined the new mood. “The Housewife’s Moment of Truth” captured the feminist awakening with an onomatopoeic “click.” “Click” became a byword that season.)

Abortion rights entered the policy debate at the 1972 Democratic National
Convention in Miami that August. New party rules, after the debacle of 1968, had opened the process of delegate selection. An unprecedented 40 percent of the delegates, counting alternates, were women. The six-month-old National Women’s Political Caucus, started by Betty Friedan in a shaky alliance with Gloria Steinem, Bella Abzug, and Shirley Chisholm, set up a command post at the Betsy Ross Hotel. Jostling for media attention, the movement’s stars were appallingly disunited. Outright warfare over tactics broke out between Friedan, cast in the outsider role, and the Steinem-Abzug constellation, overly optimistic about its back-door influence with presidential candidate George McGovern. Actress Shirley MacLaine, the candidate’s Hollywood adviser on women, tried to suppress any mention of the A-word. Friedan managed to push the abortion plank to a floor vote, where it was defeated, more closely than the women anticipated, by McGovern loyalists unwilling to add another impediment to their candidate’s uphill fight against Richard Nixon.

President Nixon had made his opposition to abortion perfectly clear on several occasions, most vividly in May when his letter to Cardinal Cooke in New York about protecting the unborn was released by the archdiocese. McGovern’s rout was so overwhelming in the November general election that it is hard to see how a positive stand
on abortion could have done him any damage, but the electoral process does not breed courage. The NARAL strategy of lobbying the state legislatures had foundered when it became painfully evident
to legislators that a vote for abortion rights could effectively end a politician’s career. That year a move to revoke New York’s liberal law was beaten back by an uncomfortably narrow margin, while a voter referendum to repeal Michigan’s restrictive law was defeated when a “Voice of the Unborn” campaign, considerably more sophisticated than the one two years earlier in Washington State, shifted public opinion at the last minute with a barrage of thirty-second televised spots.

But the court side of the picture was looking bright. Breaking its two-year silence, a three-judge panel voided New Jersey’s abortion law in late February on grounds of vagueness and the right to privacy, and the Women Against Connecticut challenge,
Abele
, had a triumph in September (on the same day, coincidentally, that the Los Angeles self-helpers were arrested). Judge Jon Newman’s opinion in the
Connecticut case was particularly strong. His words about a woman’s right to privacy and personal choice vis-à-vis the status of the fetus were read avidly at the Supreme Court by Blackmun and Stewart, and the forceful decision tipped Lewis Powell, one of the new Nixon appointees, into the affirmative column. Standing at 6 to 3, the Court was preparing to chart a national course, and to say what a presidential candidate dared not utter.

Weddington and Hames were back for
reargument on October 13, 1972, hopeful but uncertain. The justices mused aloud about fetal viability and late-term abortions, ground they had raked over many times among themselves. They understood that what they were preparing to do came perilously close to legislative dictum. There was no way they were going to settle the debate among scientists and theologians about when life begins, but six men of the Court were prepared to act on their belief that the state had no compelling interest in preserving an embryo at conception when the life of that embryo was balanced against the lives and aspirations of women. To produce a meaningful set of guidelines, they needed to draw a line somewhere in the gestation process, and they would attempt the wisdom of Solomon according to their best understanding of safe medical practice. In one regard their task was simple. They were interpreters of the United States Constitution, and nowhere in the Fourteenth Amendment, which
speaks of “persons born or naturalized,” did a mention of the unborn appear.

“If it were established that an unborn fetus is a person,” asked Potter Stewart, “you would have almost an impossible case here, would you not?” Weddington conceded that she would have a very difficult case.