February 6, 2013
Vol: 20 No: 6

Interview

Roe v. Wade: Past, present and future

By Rosette Royale , Assistant Editor

Sarah Weddington won a 1973 U.S. Supreme Court decision that legalized abortion. Four decades later, she’s working to educate younger generations

Sarah Weddington was elected to the Texas House of Representatives in 1973

Photos courtesy of Wikipedia.

The 2004 March for Women’s Lives in Washington

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Websites that list traditional anniversary gifts suggest that for a person celebrating a 40th, a ruby is an ideal choice. But some people don’t go for gems. Instead, they mark four decades with a protest.

At least, that’s what appeared to motivate the estimated hundreds of thousands of protestors who showed up in Washington, D.C., on Jan. 25 to lament the 40th anniversary of Roe v. Wade, the landmark 1973 U.S. Supreme Court decision that made abortion legal in all 50 states for women in the first trimester of pregnancy. (Restrictions apply for the second and third trimesters.) Since then, women’s groups and medical organizations have worked to ensure women have access to abortion, while a cadre of well-organized, sometimes well-funded groups and religious organizations has sought to chip at away at the law. During the recent protest in the nation’s capital, opponents held signs that read “Courageously Abolishing Abortion.”

Sarah Weddington hopes access to safe, legal abortions is never abolished. She argued the case before the U.S. Supreme Court while she was in her mid-20s, serving as legal counsel to “Jane Roe,” a woman who couldn’t obtain an abortion in Texas. The young Weddington knew that many women resorted to illegal or self-administered abortions, both of which could lead to serious medical complications — even death. In 1967, Weddington had an abortion herself, crossing the Texas border to enter Mexico. So when Jane Roe’s case made its way to the nation’s highest court, Weddington stood before nine male justices to argue for a woman’s right to privacy — and won.

Planned Parenthood Northwest invited Weddington to Seattle to participate in its fundraiser on Jan. 22, 2013, four decades to the day when the ruling was handed down. Prior to that event, she spoke with me by phone from her home state of Texas. Over the course of 30 minutes, Weddington, in a voice that’s a mix of lilt and twang, talked about the case, the current state of abortion rights, Jane Roe and the ladies’ lounge in the U.S. Supreme Court.


If I asked you to describe what Roe v. Wade was and what it meant, what would you say?

Well, Roe v. Wade was decided by the U.S. Supreme Court in 1973. Before that there were a lot of states that had one of two kinds of laws: the Texas kind of law, which was very restrictive — abortion was legal only to save the life of the woman — or the Georgia kind of law, which was then called the liberalized law because abortion was legal for rape, incest, fetal deformity or the life or health of the woman, with some other access restriction. There were two states where abortion was legal: California — then-governor Ronald Reagan signed it into law — and New York. So, women with money could get to a place where it was legal.

But many women who were younger or poorer, or just not as sophisticated in how to get information, ended up either doing self-abortion or illegal abortion. There were wards in public hospitals called the IOB, the Infected Obstetrics wards. That’s where women ended up with infections, perforations, all kinds of medical problems, because of being in back alleys. It’s why the doctors were in support of changing the law, because they had seen what it did to women.

So the Supreme Court then took a case, one from Texas and one from Georgia, and the question was: Is there a right of privacy? In that decision, Roe v. Wade, the court said in the first trimester it’s really just up to the woman and whomever she desires to consult [such as a spiritual advisor, the man she’s involved with, the doctor]. In the second trimester the state could have more restrictions about the way the procedure’s done, and in the third trimester the state could enact some things that talk about the circumstances under which it could be done. But since more than 90 percent of women who have an abortion want one in the first trimester, it has meant there was a good, safe and legal place they could readily get to.


It’s been 40 years since that decision. How would you describe how the issue of abortion rights has changed?

Well, first, the basic Supreme Court opinion is still the law of the land. It’s why many of us really worked hard for Bill Clinton’s election and then worked hard for Obama’s, because those candidates said we believe Roe v. Wade should continue to be the law of the land. Whereas their opponents, most recently Romney, [or] certainly those around him, would say we should change the law and abortion should be illegal. The reason the presidential election is so key is because that person gets to name who would become a Supreme Court justice if there were a vacancy, because the vote tends to be very narrow in terms of how the division is.

The second thought is the opponents have spent a lot of time focusing on states. So here in Texas the governor is a Republican who [is] very opposed to abortion. He also has said Planned Parenthood cannot be included in programs to provide basic health care: The state does not pay for abortion services. But Planned Parenthood is very good at providing what we call well-woman care: mammograms, well-baby care. So here in Texas we’re in a big fight about whether Planned Parenthood will get to be included in the state program for women’s health care. It’s not totally clear yet what’s gonna happen. So we’re trying to reach out to a younger generation who frankly doesn’t remember when abortion was illegal.

I was on an airplane not long ago, and I had on a button that we used to wear a lot, a button that had a coat hanger on it and a slash across the coat hanger. That meant no more back-alley abortions, no more coat-hanger abortions. The flight attendant, a young woman, looked at my button and kind of looked puzzled and then went on down the aisle, and then came back and looked again. That happened several times. Finally she stopped and said, “What do you have against coat hangers?” I had to explain. And it was when I realized that sometimes there is a dichotomy among people old enough to remember before Roe and those people who [can’t].


Now there was another case that was also argued at the same time: Doe v. Bolton.

That’s the Georgia case.


The Court’s able to hear two cases together?

Well, the Court would generally hear two cases in the morning and two in the afternoon. The more cases you have pending before the Supreme Court on the same issue, the more likely it is the court will take one or, in this case, two. So the Texas case began at 10 o’clock, and each case is allowed one hour: 30 minutes for the plaintiff, 30 minutes for the defense. Then the chief justice — at that time it was [Warren] Burger — would say, “Okay, Roe v. Wade is submitted. We will take a brief break and then Doe v. Bolton will begin.” There were a few cases that have gotten more [time], but in 99.99 percent of the cases, one hour is all that’s allowed.


You mean that a major court case like this is argued in one hour?

Yes. In our case, we had written the plaintiff’s brief, and then there are often a lot of amicus curiae, or friend of the court briefs. We had a brief from the Texas Medical Association, the American Medical Association, and others, all saying here are the reasons we think that the court should declare the Texas law unconstitutional. There was the women’s brief, and it was lots of women’s organizations. There was a religious brief in our favor. Then there were ones against us: the Catholic Diocesan attorneys association, some individual doctors. There [was] a stack about a foot high of all of the written materials that [were] sent ahead of time. So the judges have read all those materials, the clerks have read them and often did a brief saying to the judges here are the key points, here are questions you might ask. And they don’t decide it the same day. The tradition is that on Fridays no outside people are allowed in the room, and [the justices] discuss what they think the decision ought to be. Assuming the chief justice is on the majority side, he appoints the justice who will write the opinion.


What was the time span between when you argued and when the decision was announced?

Our case was unusual in that regard. First, we argued it in the fall of 1971, and we thought we would get the decision the [next] summer. But we got a notice that the case would be re-set for argument in the fall of 1972. Now, there are several theories about that. When we first argued it, there were only seven judges. Richard Nixon was president, and he had submitted a couple of names to the U.S. Senate, and they were not approved. So one argument was that the case was so important there should be nine judges. The second rumor was that Nixon was running for president again [in 1972], and he was opposed to abortion being legal. He did not want the Nixon court deciding the case while the election was going on. It’s interesting that he was installed for his second term as president on Jan.  20, 1973, and we got the decision on Jan. 22, 1973.

I had just run for election as a state representative in Austin, Texas, and was the first woman elected from Austin. I was over at the capitol, and my assistant [who was Ann Richards, who would be elected governor of Texas in 1990] took a call from the New York Times. A reporter said, “Does Ms. Weddington have a comment today about Roe v. Wade?” And the assistant said, “Should she?” And the reporter said, “It was decided today.” And the assistant said, “How was it decided?” The [reporter] said, “She won it, seven-to-two.”

Then of course there was mass pandemonium around my office. I got a telegram a short time later from the Supreme Court telling me I had won, that they were air-mailing a copy of the opinion. Other than to say I was delighted that I had won, I couldn’t say too much more because I hadn’t read the opinion. I called somebody in Washington and said, “Go to the Supreme Court, get a copy, call me, tell me what it says!” It reminds me how long ago that has been. There is no such thing as a telegram anymore. And if you wanted to read a Supreme Court decision now, you would go on the Internet and look it up.


How did you come to argue the case?

I grew up in the 60s, which was a time when there were many limits on what women could and couldn’t do. At the University of Texas there was a group of mostly women, but a few men as well, talking about how could we change the law that said women can’t get credit [cards] unless they have a man sign for them. Women could not run full-court basketball. How could we change the law so that women that reported a rape didn’t end up being the ones who were on trial? The policy of the UT-Austin health center was that no woman could have access to contraception unless the woman certified she was within six weeks of marriage. So a group of women had a community newspaper called The Rag, and they would write stories about contraception. And women were coming to [the newspaper] saying, “But I’m already pregnant. Where could I get an abortion?” So they wrote articles for The Rag about possible places to go. They got worried they might be charged with being accomplices to the crime of abortion.

Because I [had] finished law school, they asked me if I would go to the library and tell them whether they were likely to be prosecuted. So I found cases [where the Supreme Court ruled that doctors and their patients seeking contraception were guaranteed privacy] and went back and shared it with the group, and they said, “Would you do a Supreme Court case?”

Now, I was very young. Roe v. Wade was my first contested case. I had done wills for people with no money, some uncontested divorces, an adoption for my uncle, but I really wanted to practice law, and I was mad that firms wouldn’t hire me. I was the only person [the newspaper staff] knew who was a woman that might take the case. I was willing to do it for free, and I think that was persuasive. And I really believed in [abortion] being personal.

So I started the case, and I didn’t think it was going to the Supreme Court. I thought I was helping to sort of build this mountain of cases that were on their way to the Supreme Court. But as it turned out, the court accepted the Texas and the Georgia case.


So Jane Roe. Can you say what her name was?

She has made it public, otherwise I could not. She has done a series of things in the press saying that her real name is Norma McCorvey. There is an article in the February [2013] issue [of] Vanity Fair [called “The Accidental Activist”]. She said to us she was already pregnant, she didn’t want to be, but we told her she was too far along to have an abortion and cases take too long to get to the Supreme Court for her to be able to have an abortion under the case. But we thought it was really important to try to help other women not go through that. We were paying the expenses, we were giving our time. She did say to us, “Would it help if I had been raped?” And we said no, because rape was not a reason that made it legal in Texas. We didn’t go further into how she became pregnant.

What we did do was file it as a class action, and that means that the case is not for one person, it was for a class of people defined as all women who were or might become pregnant and want the option of abortion. She did not come to the court hearings. She did sign a one-page affidavit. She was pro-choice for 25 years, and after, she decided she was anti-choice. So she traveled and gave speeches and took up collections for herself and other person or groups [sponsoring the speeches] saying she was opposed to abortion. In the Vanity Fair article, the author wrote:[“But in truth McCorvey has long been less pro-choice or pro-life than pro-Norma.”]


How old were you when you argued the case?

The first time 26 and the second time 27.


Were you nervous?

Oh, goodness yes! The night before oral argument I could not sleep. I would get up and check my notes, and then I’d go back to bed. The next morning I got up very early to go over to the Supreme Court, partially because the court allows you six chairs to designate for guests. But there were so many people who wanted to be in the courtroom. I had asked the court, “Could I please have 12 seats?” They said yes, both sides will have 12. The Attorney General’s office in Texas gave me the extra [seats] they had.

There’s a lawyer’s lounge provided for people getting ready to argue, so they have a quiet place. At the last minute I thought I better make a last stop before I go to the courtroom. It turned out there was not a ladies’ room in the lawyer’s lounge, so I had to go ask the clerk of the court. They said, basically, down the hall, down the stairs, to the basement. Every time I went back to the court to watch other cases being argued, I would check to see if they had put in a ladies’ room. And sure enough, after both Sandra Day O’Connor and Ruth Bader Ginsburg were on the bench, they put in a lawyer’s ladies’ room.


There was a recent article on salon.com: “2012 was an unmitigated disaster for abortion rights.” How would you characterize last year?

Well, I think that statement was somewhat an exaggeration, because it could have been worse. For example, if there had been six people, or five people, on the Supreme Court willing to overturn Roe v. Wade, we could be facing a situation where there was not a right to make your own decision, a right of privacy — and that did not happen. Partially because Obama made a couple of appointments.

Now the reason there is some truth in that statement is because there were so many states that passed laws that made it much harder for women to have access to abortion and for doctors and providers to provide the services. So abortion is still legal under Roe v. Wade, but it is much harder to access because of many legislative actions in states. Washington is one of the better states, but Texas is a disaster. So as to Texas, that would be a true statement.


So it’s the 40th anniversary. Do you have any plans to celebrate?

Oh, absolutely. I’ll be speaking in Seattle, the night of the anniversary.


Any other things?

I’m speaking in Portland, Ore., that morning for a Planned Parenthood benefit.


Are you doing anything for yourself? Well, those things might be for yourself.

They are. I’ll enjoy it, I’ll see friends. I feel useful. I mean, my goal the past year has been to do speeches, a lot of them for Planned Parenthood, to raise more money to provide services.


Is there anything else you’d like to say?

If you walk into my office, on the left is a handmade goose quill pen in a frame. When you argue before the Supreme Court, it’s a souvenir. Below that is a picture, framed, of the 2004 March for Women’s Lives in Washington: a million people on the Mall.

Then you go on back in my office and you will see a picture of the judges of 1973, and, of course, they were all men.  Today a picture of the court would have three women on it [Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg]. And then below the picture, which I had to pay a little bit for, are the signatures of each of the nine judges. And sometimes people will come and they’ll say to me, “Can you get one of these autographed pictures if you lose?” And I say, “I don’t know. I’ve never lost.”

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