REVISITING ROE V. WADE WITH THE PIONEERING BADASSES WHO FOUGHT IT
by flaunt
Women's March 2017
This Isn’t over
As 750,000 people flooded the streets of Downtown Los Angeles on January 21st, 2017 – the day after President Donald Trump’s inauguration – three signs caught the eye amongst the thousands of placards expressing love, anger, passion, fear, humor, dissent, and frustration – “PRO ROE”; “There isn’t time to (Roe v.) WADE for our rights!”; “Hell no, we won’t forget Roe!”
It’s a measure of the totemic energy spellbound into the case name Roe v. Wade that 44 years after the Supreme Court handed down their decision, it can still be evoked to ignite the rawest passions and light the fuse of today’s political, scientific, religious, cultural, and moral debates.
When Linda Coffee and Sarah Weddington entered the portal of the United States Supreme Court aged 28 and 26 respectively, to argue the case in front of the full bench of the highest court in the land, they had little notion that years later their fight would still be a volatile byword for a sweeping discourse on global human rights. Or that a woman’s universal access to an abortion in the United States would now be teetering on a knife’s edge. “I think most people who are working in this field feel it’s like standing on the edge of the cliff trying to decide if you’re going over or not,” Weddington told me of the state of the law today. “It’s very worrisome.”
In 1969, the two friendly acquaintances who were recent graduates of the University of Texas Law School set out to challenge a local law that criminalized assisting a woman in getting an abortion. “The Texas law to me was clearly something that was unconstitutional,” Coffee told me, “that doesn’t mean it was simple. But there were other cases. Our view was that – at least the view I had – it was so clear that the Texas law was unconstitutional that it could be filed and there was a fairly good chance of success on a limited budget.”
It was a troubling time for women’s access to health care: “There were a few states where abortion was legal. For example, California.” Weddington explained, “A lot of woman flew from Texas to California to have an abortion. A lot of people were going to Mexico for illegal abortions. Dallas Parkland Hospital where President JFK was taken after he was shot, had a ward there ‘the IOB ward.’ And the patients had done self-abortion, or had illegal abortions and had been injured during the process. The doctors spent their time trying to save the lives and the fertility of those women.”
Independently of each other, both Coffee and Weddington had come to the conclusion that the law was vulnerable to a constitutional challenge, so they joined forces to fight it. However, they needed a plaintiff with standing. Coffee was put in touch with Norma McCorvey, a pregnant woman who didn’t want to be, and the young lawyers met her at a pizza parlor. She was given the legal pseudonym Jane Roe, and out of her own pocket Coffee made two $15 case filings in the Texas District Court against the defendant, Dallas County District Attorney, Henry Wade. The battle was on.
Eventually, in a 7-2 Supreme Court decision (handed down on the same day as Lyndon B. Johnson’s death – January 22, 1973) the abortion laws of 46 states were overturned. While it was far from the final word – or the final blow in the fight – it was a decisive one, which for 44 years has helped to shield women’s rights even as the potency of its legal status has eroded.
Beyond the ivory walls of the legal profession there seems to be little deep understanding of what the decision itself hinged upon, or of the legal precedent that it in fact created. Legally, the case resolved upon an implied right to privacy under the due process clause of the Fourteenth Amendment of the Constitution. The Court’s majority opinion makes no explicit claim that abortion is a fundamental right for women, seeing it instead as an aspect of this limited right. Yet the justices themselves apparently perceived it as resolving the fundamental question of a woman’s right to access an abortion. Francis Lorson, the former chief deputy clerk of the Supreme Court, claimed that in the mid-1970s Justice Potter Stewart observed anti-abortion protestors out a car window, and remarked “I don’t understand. We’ve decided that.”
At its innermost kernel the abortion debate hinges upon when a coalescence of cells can be said to be a human being, and on what control a woman should have over her destiny. Yet in Roe v. Wade we see that law and statute rarely crystallizes in precise terms around fundamental questions, even though in their judgment the Supreme Court did ponder the science and metaphysics of when life truly begins. Legal battles are almost never fought on flat ground between clearly defined enemies with equal vantage points over the terrain. Instead they are usually fights by proxy – skirmishes over peripheral issues that can be used to encircle jagged and often barely recognizable splinterings of morality and principal.
Yet cases like Roe v. Wade can have a huge and lasting impact. Both Coffee and Weddington are quick to point out that the case was one of several similar cases, and that it was a battle fought on many fronts, by many different people. Yet as a watermark from the rising tide of female empowerment, Roe is seminal, and the world is indeed a changed place. “Today there are a lot more lawyers who are women.” Weddington reflected, “In fact, last year there were more women at University of Texas law school than men. Whereas, in the class that Linda and I were in there were five women and 125 or 150 men. There are now three women on the US Supreme Court and there had never been a woman before Roe v. Wade.”
Women's March 1970
I was clearly not the first person to request an interview with Coffee and Weddington. Probably not the 1000th. Coffee asked that I not record her, and my quotes were hastily scribbled onto a notepad. The wariness was understandable. The case these women fought carved a fault line that still ruptures the stitches of ideological wounds right across the country. Coffee didn’t trust me, and told me so much explicitly, “I just think you’re trying to pull something out and I really don’t like people summarizing what I say,” she explained. “I’m not impugning anyone’s motives, but I get a lot of calls. Everything I can recall about the case has been reported.”
Yet in a digitalized age none of the sources readily available to me contained so much as a quote from Coffee. In a Vanity Fair profile she agreed to this year – published two weeks after I spoke to her – she conceded that she had not given an interview in 20 years. Evidently those interviews were made in a time that has had less penetration into the present. In the era of fake news and lazy Google, too many important things are forgotten, even as the currency of truth grows ever more valuable and ever more opaque.
The mantle that Coffee fought for herself sits uneasily on her shoulders. Weddington’s star remained in the firmament following the success of the case, and she went on to become a distinguished legal scholar, a Texas legislator, and worked in the Carter administration as Assistant to the President – the highest White House staff title, and a position of considerable power. Coffee’s relationship with her success was different. While she went on to have a successful legal practice working predominantly in bankruptcy law, “considered a backwater at the time,” Coffee told me, “I spent a lot of time on cases involving employment discrimination.” The Vanity Fair article describes some professional difficulties later in her career, yet adds that remarkably, before this Coffee hadn’t even included the words Roe v. Wade on her resume.
Coffee said she was hopeful that I might try and create something original and fair, but also seemed to think that I was intent on getting some sensational quote – or a quote that could be sensationalized after the fact. Something that could be used to bring new spin or venom into the abortion debate. Truthfully my motives were both more ambitious and more banal – I sought a glimpse of how two young people were able to join forces and help to make the world shake. “I really don’t feel that comfortable trying to characterise somebody else.” Coffee told me when I asked her to describe her colleague and their friendship or their working relationship.
“I knew that Linda was a really good student,” Weddington told me, “after she had finished law school she had clerked for a federal judge so I knew she knew more than I did about how to try a federal case. We really made a good team. She was particularly strong in doing the litigation and the research for it. We were both together, the whole way. For co-counsel, you need somebody you trust.”
Momentous deeds may be collective enterprises, yet the individuals still have to play their part. Weddington and Coffee were almost certainly riding atop a ground swell of changing sensibility, yet that doesn’t for a second diminish the magnitude of their accomplishment. Tenacity, courage, and trust in a partner can evidently go a long way in addressing injustice. At least within an adequately functioning legal system. Age was not important. Experience wasn’t crucial. Gender was ultimately not a barrier. Theirs is a lesson of hope through struggle, well remembered in uncertain times.
Written by Gus Donohoo