This Precious Right


Some of us remember exactly where we were on January 22, 1973, when the Roe v. Wade decision came down. Sarah Weddington, in Austin, took an urgent call from a Washington reporter. Stunned by the enormous breadth of the Supreme Court ruling, Roe’s lead counsel, a few years out of law school, exclaimed that it was “a great victory for women in Texas.” Norma McCorvey, her hard-luck plaintiff, read the news in Dallas. Two decades away from her religious conversion, she pridefully boasted to her female lover, “How would you like to meet Jane Roe?”

Madeline Schwenk, a Chicago housewife and mother of three children, repaired to a Magic Pan and got smashed on crepes and champagne. Arrested the previous May, Schwenk was awaiting trial with six friends for performing illegal abortions in “Jane,” the feminist underground service. “I was laughing and crying,” she recalls. “Roe meant I wouldn’t be going to jail.” At Mother Courage, the feminist restaurant in Greenwich Village, we uncorked some bottles and had a party.

“The future looked so bright,” recalls Camille Gargiso, then a student at City College. “Everything seemed possible after the Roe decision.”

And so here it is, 25 years later, and Roe‘s affirmation of a woman’s right to reproductive freedom, as significant to justice and equality as Brown v. Board of Education in 1954, is still being hotly debated and systematically chipped away at, the voodoo doll of right-wing religious fanatics waving their cynical “family values” banner, while the uneven march toward human equality remains unfinished business for the 21st century.

My abortions, numbering three, were in the pre-Roe ’60s; that is, they were secret criminal acts driven by desperation and a reckless trust in the unknown. One image will suffice: a solitary young woman with not enough money in her pocket clutches a scrap of paper. She is in a Spanish-speaking city, in an unfamiliar neighborhood, and she does not know the language. When the gringa finds the shuttered house she is looking for she pounds on the door and cries, for this address is her last hope. A window opens and slams shut. Somebody opens the door. Ten minutes later she breathes deeply into the anesthetic, her life becomes her own again, and she will never learn her savior’s name.

In September 1968, after the third of my secret trips, I walked into a meeting of Women’s Liberation in New York and listened to women in blue jeans speak openly and bravely of their attempts to end an unwanted pregnancy. Not every story concluded, as mine had, with an expert practitioner and a sound medical success. That transforming evening, the kind that makes you a feminist forever, was repeated in public at the Washington Square Methodist Church on March 21, 1969. The sponsoring group was called Redstockings, and my report on the speak-out appeared on page 1 of The Village Voice.

The feminist campaign to legalize abortion was built around a simple, breathtaking principle: “A woman has a right to control her own body.” It was a slogan first employed by Patricia Maginnis, whose illegal referral service in California was a pioneer. Simultaneously with the feminist mobilization, a cautious movement of concerned doctors, lawyers, and clergy coalesced into NARAL, then called National Association for Repeal of Abortion Laws. But it was the young feminists’ creative juggernaut of impudent actions that set the campaign afire. Public speak-outs. Disruptions of legislative hearings. Mass rallies and marches. “KEEP YOUR HANDS OFF MY UTERUS.” “FREE ABORTION ON DEMAND.” Counseling hot lines and referral services not only flouted the law, but a few of the “Jane” women in Chicago actually became trained practitioners, ably performing low-cost abortions themselves. Elsewhere, small groups experimented with “menstrual extraction,” a technique developed in Los Angeles by Lorraine Rothman and Carole Downer that could clean out the uterus in the first month of conception with a small plastic cannula, drip pot, and syringe.

On the legal front the most innovative approach began with Nancy Stearns, a lawyer with the Center for Constitutional Rights in New York. In October 1959 Stearns filed a class action suit in federal district court that sought to overturn New York’s antiabortion statutes on behalf of the state’s women. (Her coattorneys were Diane Schulder and Flo Kennedy.) Feminists in New Jersey, Connecticut, Pennsylvania, and Michigan quickly adopted the class action strategy, gathering thousands of named plaintiffs and engaging the media by conducting public depositions and courthouse rallies.

Numerous political strategies were employed during the four hectic years prior to Roe, and no one could say at the outset which approach would triumph. With hindsight, I believe a combination of strategies led to the Court’s decision. The Clergy Consultation Service begun by Howard Moody at the Judson Memorial Church in Greenwich Village added tremendous moral stature to the illegal referral networks. The lobby-the-state-legislature approach favored by Larry Lader of NARAL achieved some early, impressive victories–until elected representatives learned the hard way that a vote for abortion rights could end a politician’s career.

In April 1970 New York became the second state, after Hawaii, to go legal. Two weeks later Alaska came through. Voters going to the polls in Washington State that November overwhelmingly endorsed a proabortion referendum. Initially proposed as a humanitarian health-care issue, Referendum 20 gathered its energy and positive force after Seattle Women’s Liberation reframed the campaign as “Abortion Is a Woman’s Right.” Barbara Winslow, a historian, believes the wire coat hanger signifying a botched illegal abortion first appeared on placards in Washington State.

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.