Chapter 9

It was still January when Norma and McCluskey met Coffee downtown in her office at Palmer, Palmer & Burke, where, for $450 a month, Coffee waded through petitions for bankruptcy.

Coffee was intense, incapable of small talk, pale and unkempt besides. All at once, Norma was ill at ease beside her. She looked, said Norma, “like she got out of bed and forgot to comb her hair.”

Looking back at Norma, Coffee saw a small woman with a big belly. Says Coffee: “She looked really pregnant.”

Exactly how far along Norma was could not be known. In 1970, gestational age could only be estimated, and estimates could be off by up to four weeks. “We weren’t using ultrasound at that time,” explains Frank Bradley, the Dallas obstetrician who delivered Norma’s second child. Instead, he says, doctors used pelvic exams and menstrual history to “try to figure it out best they could.”

It was more than likely that Norma had reached at least her twentieth week. And she had thus reached the legal limit at which any doctor in the U.S.—even where abortion was legal—could perform an elective abortion. In January 1970, abortion was legal only in Oregon, where residents were permitted to abort through the first 150 days, and in California, where nonresidents too could abort through twenty weeks. Abortion was also not illegal in the District of Columbia. (A federal district court had recently declared the anti-abortion law in DC unconstitutional, and the appellee in that case performed abortions until at least the twentieth week.)

Coffee thus knew that it was almost certainly too late for Norma to get an abortion. “It was my opinion,” the lawyer soon recalled, “that, very likely, the suit would not solve her immediate problem.” It was not too late, however, for Norma to file suit. Indeed, it would be of no legal consequence if the suit Norma filed came to term after she did. “There were fairly established principles that that doesn’t moot the case,” says Coffee. (Among them was the category of cases deemed “capable of repetition yet evading review”—which meant, in essence, that the issue was a recurring one, but in each instance would pass before the courts had time to fully address it.)

Coffee told Norma what she knew. “I remember saying,” she recalls, “that I thought she was probably too far along to have an abortion under the protection of the federal court.” But Norma had nowhere else to turn. Coffee was her last hope.

Coffee told Norma that if she filed suit, she might have to testify. Norma agreed—never mind, says Coffee, that she “likely had no idea what that would entail.” Coffee sensed that Norma had little idea what filing suit even meant. “I could tell she didn’t have a lot of education,” says Coffee. “Maybe she was being a little too cooperative . . . Most people would ask more questions if they were thinking about filing a lawsuit over something of that magnitude.” Norma only asked if filing suit would cost her money. It would not; Coffee would do the case pro bono. Norma agreed to file and left.

Coffee marveled. McCluskey had come through. She had a plaintiff. And that plaintiff was perfect. As Coffee later told a reporter: “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California . . . for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.”

Still, Coffee would try to keep Norma anonymous. Alone in her office, she fashioned for her would-be plaintiff a pseudonym, combining Jane, which was suitably common, she says, with Roe, which was standard legal vernacular and already the surname of two plaintiffs (alongside two Hoes, two Poes and a Doe) in a 1959 lawsuit on contraception. “In my mind,” says Coffee, “I considered her being Jane Roe as soon as I got an actual woman being ready to file.”

Coffee picked up the phone. There was one person she wanted to alert at once.

COFFEE HAD STUDIED LAW at the University of Texas alongside a woman named Sarah Ragle. The women were not friends, says Coffee. But they were two of just five women in the entering class of 1965, and both had thrived in law school only to be rejected by every firm.

Both women had since found their footing. Ragle had been hired by one of her professors to help draft the ethical standards of the American Bar Association. But misogyny remained rooted in Texas and beyond. And in the fall of 1968, a group of women in Austin, some twenty current and former students at U of T, began meeting to discuss the issues they faced.

Among these was abortion. The women began referring women wanting abortions to those few clinicians they deemed safe. But the women were circumnavigating the law. And in November 1969, they approached a young lawyer they knew—the former Sarah Ragle, who had since married a law student named Ron Weddington. As the author David Garrow later phrased their question: “Would open and aboveboard provision of referral information leave the project volunteers vulnerable to arrest?”

Weddington seemed an odd person to ask. That she was smart was undeniable; she’d skipped two grades, graduated college magna cum laude besides. “I have received very few B’s in my whole life,” she later recalled. But at twenty-four years old, Weddington was hardly countercultural. She was the daughter of a Methodist minister, had headed her high school chapter of the Future Homemakers of America, and had been assistant house mother for her Delta Gamma sorority. She was middle-class and married.

Weddington, though, fervently believed in the need for abortion reform. Unbeknownst to the group, she had found herself pregnant the year before she was to marry and had traveled to a clinic south of the border in a town called Piedras Negras to have an abortion.

Prim in her ponytail and pantsuits, Weddington had kept her abortion secret. But when approached by the group of UT alumnae, she agreed to investigate their question at no cost. And in late November, she let the women know that she had found no clear answer; the law was ambiguous. The group then wondered if the Texas abortion law could be challenged in federal court. Weddington thought so. Asked if she might file suit, Weddington balked.

Weddington was confident. Her parents had raised her and her younger siblings to believe, she later recalled, that they “could do whatever they wanted,” and so she had—from soloing in the church choir to serving as secretary of her college student body. But her body of legal work was sparse—a few divorces and wills, an adoption. She suggested that the group hire a lawyer in a firm, she recalled, “with research and secretarial backup.”

The women, however, wanted Weddington. So back to the library she went, comforted by the thought, she later wrote, that any suit she filed would simply back the growing number of suits that already contested abortion laws in other states.

Still, the drafting of documents was daunting. Weddington again wondered if the case might be better handled by a lawyer with knowledge of federal courts and procedure. A former classmate turned clerk leapt to mind. On December 3, she phoned Linda Coffee.

Coffee was delighted. She’d arrived at this same juncture and simply needed a plaintiff. Weddington suggested that Coffee file suit on behalf of the alumnae group in Austin. Coffee agreed and typed Weddington a letter the next day. “Would you consider being co-counsel in the event that a suit is actually filed?” she wrote. “I have always found that it is a great deal more fun to work with someone on a law suit of this nature.” Weddington phoned to accept.

Coffee worried, however, that because the Austin group was not a pregnant woman, it might not have standing in the eyes of the court. Besides, only a case filed in Dallas could land on the sympathetic desk of Coffee’s mentor, Judge Hughes. The search for a plaintiff thus continued, extending into late January, when an exultant Coffee phoned Weddington to tell of the pregnant woman who’d just left her office.

DAYS LATER, NORMA was all belly and blue jeans when she met the two lawyers for pizza in a restaurant popular with SMU students. Seeing Coffee again made Norma anxious. But Norma was taken with Weddington, strawberry-blonde and curvy and just two years older than she. “She was wholesome and robust and had things happening!” said Norma. “I fell in love with Sarah. She had all this hair.”

Over a tablecloth of red and white gingham, talk turned to the inalienable rights of women. The lawyers asked, recalled Norma, if it was not a good thing that women could smoke in public, could vote. Norma agreed that it was, and then that women ought to have the right to an abortion, too.

Still, it was not conviction that had led Norma to Columbo’s Pizza Parlor this winter afternoon; it was happenstance, the fact that her doctor happened to know McCluskey who happened to know Coffee. And Norma again made clear that she did not want to further a cause; she wanted an abortion. Weddington repeated what Coffee had said, about her probably being too far along. “I’m not saying I misunderstood,” said Norma. “But I thought we were all real clear on what I really wanted.”

Had Coffee and Weddington really wanted to help their potential client get an abortion, they might have at least tried. As Victoria Foe, a biology student who worked with Weddington on the referral network in Austin, recalled: “in desperate situations, women up to twenty weeks were not turned away.” And the lawyers might have taken Norma to a doctor for an X-ray so as to better gauge how far along she actually was. If there was time to end her pregnancy, they might have asked a judge to issue a temporary restraining order to prevent state officials from enforcing the law against their client. Or they might have sent Norma to a clinic in their network—be it in Piedras Negras, just over the Mexican border (where both Weddington and Foe had had abortions), or in California, where every Friday a group of Texas women flew. “American [Airlines] was the plane,” Weddington recalled decades later. “About ten women every Friday went to California and then they were back late on Sunday.”

But the lawyers did none of those things. It didn’t matter that only months before, Weddington had helped to write the American Bar Association’s code of ethical standards, which instructed that every lawyer must work “solely for the benefit of his client.” Weddington and Coffee had interests of their own. They wished to file a lawsuit. And, as the law professor Kevin McMunigal later noted, they now set aside Norma’s desire for an abortion “in favor of the collective interests of the abortion rights cause.”

It remained possible that Norma might yet spurn her lawyers. She had considerations beyond theirs. And so, in January 1970, Coffee and Weddington decided to file a second suit on behalf of a second plaintiff Coffee had found that same month. Her name was Marsha King. She was unlike Norma in almost every way.

King had a graduate degree in physics, a job as an engineer, a husband. She’d been in poor health the previous summer—her vision and muscles and mood faltering. A doctor had suspected birth control was to blame, and forgoing her pills did help. But when, in October, King got pregnant (despite using a diaphragm), she was distraught. For she still felt ill—and ill-prepared to have a child. An abortion in Mexico was successful but traumatic.

The experience had left King, at age twenty-six, deeply committed to abortion reform, and in January, she gave a talk about it to a women’s group at a Dallas Unitarian church. Coffee spoke to the same group, and King told the lawyer that she and her husband were willing to file suit. Coffee was delighted; the Kings were impassioned and smart. They were not, however, pregnant, and Coffee worried that a court might find that they did not have standing because they would not have a personal stake in the outcome of a trial.

Coffee and Weddington nonetheless decided to file suit on behalf not only of Jane Roe but of Mary and John Doe too. And in February—weeks before McCluskey took Norma to see Swan Lake at Fair Park in Dallas, a pink dress tight over her big belly—Coffee sat down in the SMU library to prepare the legal ground upon which her lawsuits would stand.

THE U.S. CONSTITUTION says nothing explicit about sex or its consequences. It does not mention conception or birth, contraception or abortion.

But, as Coffee looked now for a constitutional basis for abortion, she knew that the Constitution did not have to expressly address an issue to say something about it. A legal right could be inferred. The job of the lawyer was to justify that inference.

To do so, a lawyer looked for precedent, for some previous analogous ruling that might help her to persuade the court that the Constitution also protected whatever right it was she sought to defend. Regarding abortion, this was difficult. In its 180 years, the Supreme Court had not once addressed the issue.

The Court had, however, addressed contraception just five years before. Coffee believed that that 1965 ruling, in Griswold v. Connecticut, was the precedent she needed. Griswold had, by a 7–2 vote, overturned a state ban on the use of contraceptives, on grounds that the ban violated the constitutional right to privacy.

Back in 1888, a Michigan judge named Thomas Cooley had written of “the right to be let alone.” Louis Brandeis then championed that right—both in an article he co-authored at Harvard Law School and in a dissent he wrote in 1928 as a Supreme Court justice, calling it “the most comprehensive of rights and the right most valued by civilized men.” Coffee agreed. More, it now seemed to her that the right to privacy ought to encompass not only contraception but abortion, that what held for the prevention of pregnancy might hold for its termination.

Pinning a case to privacy had its challenges. For one thing, privacy is less obviously implicated by a medical procedure than by the use of contraception in “the sacred precincts of marital bedrooms,” as the Court had put it in Griswold. For another, nowhere does the Constitution actually mention a right to privacy. At a loss, the Griswold Court had situated that right, as Justice William Douglas wrote, in the “penumbras” and “emanations” of the Bill of Rights.

Still, Griswold was the closest the Supreme Court had ever come to the abortion right Coffee sought to establish. And, readying to write her memos, she resolved to do what Justice Douglas had not: be clear about where in the Constitution the right to privacy lay, that is, about exactly which amendments the Texas abortion law violated.

Her first thought was the First Amendment. “At that time,” says Coffee, “if you could file the right you were asserting under the First Amendment, the courts were much more likely to not say that you had to go to the state courts.” (Coffee hoped to have her case heard in federal court both because that was where Judge Hughes sat and because a federal court was thought more likely to declare a state law unconstitutional.) But other amendments could support privacy, too. The Ninth, for example, allowed for rights beyond those enumerated in the Constitution, while the Fourteenth limited the state’s ability to deprive people “of life, liberty, or property, without due process of law.”

In time, Coffee decided to rely on six amendments, to argue that the Texas statute violated not only the First, Ninth and Fourteenth amendments, but the Fourth, Fifth and Eighth too. As February turned to March, Coffee, who’d failed a typing class, began to hunt and peck her way through her memos on Roe and Doe.

The memos said little about their plaintiffs. (Coffee described Roe simply as unmarried and pregnant and poor and wanting an abortion she couldn’t obtain.) The memos centered instead on the law, Coffee asserting over eight pages that the Texas statutes not only violated a right to privacy but were “vague” and “unconstitutionally broad,” and thus infringed upon the “fundamental right of all women to choose whether to bear children.”

“You almost had to argue on the basis of common sense,” says Coffee, noting how little precedent there was for her to summon. She adds, “It was pretty easy . . . The law was so obviously unconstitutional.”

Coffee was done. It was time to submit her work. But, she says, her co-counsel hesitated to attach her name to it. “Sarah didn’t want to sign it at first,” says Coffee. “I think she was just cautious.”

Only months before, it had been Coffee who was cautious, the lawyer preferring that her work on Buchanan, on sodomy, go unrecognized. But regarding abortion, Coffee was unabashed, happy to be counsel of record, to take aim with Roe and Doe at another law that bound sex to procreation.

On March 3, 1970, Coffee delivered her petitions to the federal courthouse on North Ervay Street, paying thirty dollars (with two personal checks) to have them filed, signing them in black ink. She named Henry Wade as defendant—the Dallas DA she’d hoped to work for less than a year before.

WADE WAS AN INSTITUTION. He’d been the district attorney of Dallas nearly twenty of his fifty-six years. And he knew everybody, had spoken not only with LBJ and JFK but Lee Harvey Oswald and Jack Ruby, prosecuting the last.

In turn, everybody knew Wade. They knew that he chewed cigars and had two working farms and kept his phone number listed (TA3–6955). They knew that he was fierce; Wade would in time seek thirty death sentences and secure all but one.

The DA was nonetheless considered by most to be fair. The son of a judge, the whole of his allegiance was to the law. (When his older brother, Ney Wade, drove drunk, Henry put him in jail.) And, capital punishment aside, if he had a political or judicial leaning, it was decidedly left, a worldview informed by his pastor, W. B. J. Martin, a progressive Welsh theologian with a penchant for poetry. “My father was open-minded,” recalls his son Kim, a lawyer and former Assistant U.S. Attorney in Texas. “Kind of a closeted liberal democrat.”

Wade was happy to go unrecognized. (Working for the FBI after law school, he’d posed in Ecuador as a journalist.) And that a Texas DA would keep his liberalism quiet made sense. Crime and convictions kept him employed. Says his son Kim: “I don’t think his liberal tendencies would have helped him get elected.”

Those tendencies extended to abortion. Unknown to everyone, Henry Menasco Wade was pro-choice.

Wade would never say so publicly. But almost twenty years after a lawsuit had pitted him in perpetuity against Roe, he would confide in his son—as they drove east in a Chevy pickup toward the family farm in Sachse—that he had disagreed with the abortion statutes it had been his charge to defend. Says Kim: “he was not anti-abortion.”

Wade had generally looked past the statutes; his few prosecutions regarding abortion had sought less to protect the unborn than the women carrying them, the DA targeting only the most reckless of practitioners. But no longer could he do so. For Coffee, the young and brilliant lawyer who’d once sought to work for him, had named him the defendant in Roe.

That was actually a mistake. Coffee had sought to enjoin all the district attorneys in Texas from enforcing the abortion statute, not merely Wade. She ought to have named the Texas attorney general, Crawford Martin, as defendant. But the court did not instruct Coffee and Weddington to amend their complaint, and Wade’s office readied to work together with the office of the Texas AG.

Roe v. Wade and Doe v. Wade were now part of the U.S. legal system. But when Coffee let Norma know, the plaintiff was unmoved. She was due to give birth in three months and had come, by March, to grasp that her suit would not end her pregnancy. It was, however, poised to end many others, after Coffee and Weddington amended Roe to make it a class action suit on behalf of their plaintiff and, they wrote, “all other women similarly situated.”

The lawyers laid out their plaintiff’s predicament, filing an affidavit in late May. Little more than two pages, and ostensibly written by Norma, it contained a few small errors. (Fewer than five years, for example, not six, had passed since Norma’s divorce.) Its central claims, however, were true. Jane Roe had chosen to remain anonymous to avoid the “notoriety occasioned by the lawsuit.” She considered “the decision of whether to bear a child a highly personal one.” She had not traveled to where abortion was legal because she was poor. And the abortion providers she could afford were both illegal and, potentially, dangerous.

Still, one assertion at the heart of the affidavit was not true. It was neither the economic strain of pregnancy nor the stigma of birthing an “illegitimate” child that had led Jane Roe to want an abortion. She simply did not want another child.

Norma, though, was going to have one. She was due any day.