This Precious Right

A Veteran of the Abortion Struggle Looks Back

Roe in Texas, Sarah Weddington's case, was an early starter, a single-plaintiff suit filed in March 1970 and later amended to be a class action. The idea began percolating at the University of Texas in Austin when the Women's Liberation Birth Control Center proposed to sue the state for driving its activists into illegal work. Linda Coffee, the Dallas lawyer Weddington brought in as cocounsel, gave the Texas statutes a close reading and scotched that first plan. In order to have "legal standing," the plaintiff, in Coffee's opinion, needed to be a pregnant woman who had tried unsuccessfully to get an abortion via a legal route. A friend of hers who handled adoptions came up with McCorvey. Four months pregnant and living the hippie life on the streets when she met the two lawyers at a Dallas pizza parlor, Norma "Pixie" McCorvey, age 21, had brought two unwanted children into the world already. She was too far gone for a first-trimester termination, the standard recourse on the illegal circuit.

Along with Doe in Georgia, another single-plaintiff suit, Roe moved swiftly through the appellate process, faring better than the multiple-plaintiff class actions, which were foundering on the shoals of "legal standing," just as Linda Coffee had predicted. The lower courts did not look favorably on a mixed bag of claimants--women who had been unable to secure abortions, women who had resorted to illegal abortions, women who were not pregnant but were claiming the right to obtain an abortion at some future time.

In 1972 the Women's Rights Law Reporter compiled a list of suits in 29 states and the District of Columbia. Many were slowly climbing the appellate ladder. In addition to the outright feminist cases with their thousands of named plaintiffs, the Reporter noted the appeals of doctors convicted of performing illegal abortions, the challenges by doctors claiming their medical, humanitarian, and privacy rights to perform abortions, and the suits by referral services run by clergy and some YWCAs claiming their moral and humanitarian right to function within the law.

Faced with a cornucopia of diverse cases clamoring for review, the Supreme Court could pick with care. Judicially speaking, the Roe and Doe suits were uncomplicated, clean. Each rested on one unfortunate pregnant woman with limited resources and a hard-luck story who had tried but failed to obtain a medical remedy under her state's laws. (The Georgia law was considered more liberal than the one in Texas, but a hospital quota system hadn't helped "Mary Doe.")

If Justice William O. Douglas had gotten his way, the Roe decision would have come 13 months earlier than it did, after Sarah Weddington's first go-round on the oral arguments in December 1971. Douglas had the votes and was itching to write the majority opinion, but Chief Justice Warren Burger threw the assignment to Harry Blackmun, a slow writer who did not relish charting new paths for the law. Blackmun asked for more time. Roe and Doe were held over and reargued in the next calendar term. An additional year of the national groundswell not only stiffened Blackmun's spine, it tipped Lewis Powell, a new Nixon appointee, into the affirmative column. At the eleventh hour the Chief joined the majority, making the monumental decision 7 to 2.

Roe was astonishing news, even though it was eclipsed in the headlines by the death of Lyndon Baines Johnson. A militant four-year campaign had altered public perceptions to such an extent that a medical procedure the law had defined as a crime for more than a century was transformed by court dictum into a woman's constitutional right.

Precious rights do not come like diamonds with guarantees of "Forever." Few celebrants of Roe could have imagined the next quarter-century of constant vigilance and depressing retreat. The defensive actions required to maintain reproductive freedom have worn down many of the original militants, while younger women often take their given rights for granted. A personal stake in the outcome breathes urgency into any political struggle. Hey there, my sisters of reproductive age, the next century's battle is yours.

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