Chapter 12

At ten o’clock on the winter morning of January 22, 1973, nine men robed in black sat down on chairs of mahogany, eight of them quiet as the author of their forthcoming opinion in Roe v. Wade began to read a statement about the case.

“The abortion issue, of course, is a most sensitive, emotional and controversial one,” Harry Blackmun said, after describing the statutes that had brought Roe and Doe to the Court. “We are aware of this, and we are fully aware that, however the Court decides these cases, the controversy will continue.”

Blackmun had long recognized the challenge of adjudicating abortion. He noted in the second paragraph of his opinion “the deep and seemingly absolute convictions that the subject inspires.” Indeed, even those justices who concurred with his opinion weighed in, three of them penning opinions of their own. Two more wrote in dissent—six opinions in all.

The courtroom was full, Sally Blackmun among the throng. Pregnant and unmarried six years before as a sophomore in college, she had worried that to have an abortion, as she later wrote, was to risk not only physical harm but “embarrassment to my family and [my father’s] career.” Now, newly divorced, she waited to hear if he had ruled on the side of choice.

Blackmun continued. He noted the legal history of abortion, that the question of when life begins was an open one, that the Court believed that a right to privacy was implicit in the Constitution, that there were two state interests the Court had had to protect: “the health of the pregnant woman” and “the potentiality of human life.”

“We thus have, in tension,” Blackmun continued, “the pregnant woman’s right of privacy, on one hand, and these two distinct state interests, on the other.”

The justice then spoke his ruling: agency over the fetus would transfer incrementally—trimester by trimester—from woman to state. “Viewed under this analysis,” he concluded, “the Texas statute must fall.”

The statutes of forty-five other states and the District of Columbia would fall too (among them statutes invalidated by Roe’s companion case, Doe v. Bolton). And though in time Blackmun would, at this same mahogany bench, participate in 3,874 rulings, he would henceforth be known for just one.

A team of printers had turned that singular ruling into linotype, typesetting hot lead in the basement of the Court. And a group of reporters and editors now turned their newly printed copies of Roe, fifty-one warm pages, into news and editorials. Roe, wrote the New York Times, was “a major contribution to the preservation of individual liberties and of free decision-making.” The Washington Post called it “wise and sound . . . balanced and graduated.” The Wall Street Journal felt it had “struck a reasonable balance on an exceedingly difficult question.”

The Journal did, however, express reservation over “whether the court stepped too far into the legislative arena.” It was a question that had been asked about the Supreme Court before.

Policy-making is primarily the function of legislators, not judges. But sometimes, a case invalidates a law. Lochner v. New York, for example, overturned a New York law that capped the number of hours in a workday. Justice Oliver Wendell Holmes dissented in that 1905 ruling, writing of “the right of a [public] majority to embody their opinions in law.” That the will of the majority (and its elected representatives) could be invalidated by a mere nonet of unelected judges would come to be called, in the words of a law professor, “the counter-majoritarian difficulty.” The difficulty often arises in cases centering on issues not specifically addressed in the Constitution. One such issue is sex. The 1965 case upon which Roe rested, Griswold v. Connecticut, had also begotten accusations of overstepping; Justice Hugo Black had accused his fellow justices of usurping “from Congress and States the power to make laws based on their own judgment of fairness and wisdom.”

Eight years later, Byron White wrote much the same. He and William Rehnquist alone on the Court opposed Roe, and White argued in his dissent that the ruling was “an exercise of raw judicial power.” White made clear that he also found distasteful Roe’s assertion that, as he wrote, the Constitution “values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus.”

Blackmun left the capital two days after the ruling, flying to Iowa to give a speech in the hometown of one of his clerks. His presence sparked protest. “Picketed!—” noted Blackmun in his planner, “police protection.”

The protection was necessary. Among various conservatives and Christians, Roe was anathema. J. P. McFadden, on staff at the National Review, described it as “morally indistinguishable from Hitler’s genocide.” William Buckley, who founded that magazine, likened it to the case of Dred Scott, the notorious Supreme Court ruling that in 1857 denied freedom to a black man. The evangelical magazine Christianity Today called it a victory “for paganism,” while the National Conference of Catholic Bishops described it as “erroneous, unjust and immoral.”

Blackmun had expected backlash. But the righteous anger was nonetheless jarring. He was a sensitive man, prone to melancholy; his favorite piece of music was “Liebesleid,” (“Love’s Sorrow),” a plaintive Viennese melody. And as he began to read his way through the first of some eighty thousand letters that he would receive about Roe, he held onto their wrath, recalling decades later the letters that likened him to Pontius Pilate and Hitler, his death prayed for, his birth mourned.

That it was Blackmun who was assailed was ironic; it was at the suggestion of others that his opinion had moved the legal threshold for abortion forward by a trimester. More, the justice had sought initially to void the Texas law on the simple grounds of vagueness, without holding that there was any constitutional right to abortion.

Still, for every curse cast at Blackmun there was a blessing, for every pro-life wail a pro-choice exhalation. The president of Planned Parenthood called Roe “wise and courageous.” Added Ms. magazine: “this ruling will mean much less suffering.”

ON THE JANUARY morning Roe was announced, Curtis Boyd was, as every Monday, in his New Mexico clinic performing abortions in defiance of the law. The radio was tuned to NPR in the hope of news on Roe.

Boyd was not optimistic. That a court laden with four Nixon appointees would rule for Roe he could not fathom. And so, it was a shock to hear that, suddenly, his work was legal. Roe had, in fact, affirmed the rights of doctors even more explicitly than the autonomy of women.

“It’s all over. It’s all over. The issue has been won,” a dumbstruck Boyd stood thinking. Recalls his aide, Eva Cox: “we walked around almost in disbelief.”

Roe took effect at once; this same day, a doctor in Texas named Fred Hansen performed a legal abortion on a nurse who’d planned to end her pregnancy out of state. The clergy who worked with Boyd wished him to reopen his Dallas clinic immediately, arranging for a line of credit to help him do so. Within the month, Boyd hired two doctors and bought a small wooden building, opening the first legal clinic in all of Texas, Louisiana, Arkansas, and Oklahoma.

Boyd commuted weekly between his two clinics, closing one when he traveled to the other. It was surreal to practice in plain view. But the doctor had been wrong; his work, post-Roe, was no less fraught, his battle not ended. In fact, it quickly intensified. For the change in law antagonized those opposed to it—among them the residents of Athens, Texas, dismayed by their native son. “Preachers were preaching about [Boyd] from the pulpit,” his wife, LaMerle, recalled decades later. Boyd, though, was undeterred. And his wife suddenly understood that he would, ever more, hold fast to abortion to the exclusion of all else—even her. The couple spoke.

“My commitment was to the cause, to a fair and just society,” Boyd recalls telling LaMerle. “She thought ‘fair and just’ didn’t involve her and the children. And all I could say was, ‘You’re right.’ ” The divorce was quick, the doctor offering up money, not time. “He would not agree to any child visitation schedule because he was too busy,” recalls LaMerle. Boyd was free now to devote himself wholly to abortion, and he soon had both his clinics running simultaneously.

IT HAD BEEN more than a century since abortion was legal throughout the United States. But the country quickly adjusted to Roe. The IRS made abortions tax-deductible. A majority of insurance companies included abortion in their maternity benefits. Clinics opened in thirty-four states. And by the end of 1973, at least 745,000 women had ended pregnancies in compliance with the law.

Mildred Jefferson was horrified. Roe, she wrote, had enabled the American woman “to put a contract on her unborn child.”

Roe also inspired the pro-life movement to identify a new core objective—undoing Roe. As its machinery hummed to life with protests and amendments and “photo-postcards of aborted babies” mailed to legislators, Mildred gave voice to it all, the silver-tongued doctor speaking at age forty-five not only for VOLCOM, which she had helped to found, but for Massachusetts Citizens for Life, Americans United for Life, the National Right to Life Committee and, thirteen days after Roe, the Community Church of Boston. The church rented a town hall on Clarendon Street where Mildred read some five thousand words that moved from fetus to philosophy. Roe, she concluded, was emblematic of a society with “an extermination complex.”

Many agreed. And many defied the law. The National Conference of Catholic Bishops instructed hospital workers to refuse “to provide abortion on request.” State legislatures did the same; come April, pro-choice activist Lawrence Lader noted that across the South, “almost no public hospitals are complying with the Court decision.” Just eight days after Roe, a Maryland congressman proposed the first of many “human life amendments,” or HLAs, to the U.S. Constitution.

The amendments stated that personhood began at conception. American law did not agree; Weddington’s Roe brief had made clear that a fetus was not a person in the eyes of the Constitution, noting “there are no cases which hold that fetuses are protected by the Fourteenth Amendment.”

Nonetheless, tantalized by the prospect of negating Roe, the National Right to Life Committee, a polity of pro-lifers incorporated just after the ruling, threw its growing weight behind the amendments; by April, it had induced sixteen state legislatures to call for their passage in Congress. The NRLC, wrote Daniel Williams, “effectively redefined the movement.”

Mildred was part of that redefinition. The NRLC board carried representatives of each state, and come June, the transplanted Texan represented hers. Soon after, the NRLC elected Mildred vice chair of the board.

Still, the doctor angled for more, making known at every turn her pedigree, that of a minister’s daughter turned surgeon. She caught the eye of President Richard Nixon, who wished to appoint her to a medical board. In March 1973, just six weeks after Roe, Nixon’s deputy assistant, Alexander Butterfield, requested that the FBI vet her, and the bureau quickly interviewed thirty-six of her acquaintances. L. Patrick Gray III, the bureau’s acting director, reported back to the White House that “all . . . comment favorably concerning her character, associates, loyalty and reputation.”

Still, some of those interviewed expressed concerns. Dr. Sidney Farber, who’d known Mildred both at Harvard and at his clinic, raved about the doctor: “a superior woman whose potential has yet to be tapped.” But the renowned researcher also feared that the misogyny that had railroaded her career had left her with a “possible resentment” that might infect her work.

Mildred was still awaiting her presidential appointment when, months later, on a Sunday in October, she stood before a crowd of thirty thousand people assembled to call for passage of an HLA.

The crowd stood outside the Missouri state courthouse. There, seven white judges had once ruled that a black man named Dred Scott was not legally a person. The great-granddaughter of slaves now argued that a fetus was.

Mildred issued a warning to pro-choice politicians. “We will consider they are bargaining in blood,” she said, “and will not vote for them.” The doctor also took aim at doctors. Said Mildred: “I am not willing that my profession should exchange the role of healer for that of social executioner.”

Mildred could afford to decry the medical community. She was less and less a part of it. An article she wrote that year on bile ducts was the second and last she would ever publish in a medical journal. And save the occasional consultation, she practiced no medicine. Opposing abortion was now both her life and her living.

LINDA COFFEE HAD NEVER imagined that of all the abortion cases, it would be Roe that secured a federal right to abortion. Back when she first appealed the federal panel’s ruling, abortion cases were pending in eleven other states. But on this Monday, a car radio told her that Roe had made abortion legal throughout the land. She phoned Weddington.

President Johnson had died that same day; Coffee spoke first of LBJ and then of Roe. Weddington had already heard the news. Back in November, she had won election to the Texas House of Representatives. And at the State Capitol, first thing that morning, well-wishers and reporters had flooded her office with flowers and calls for comment—the New York Times, the Today show, the Associated Press.

The wire service identified Weddington as the lawyer “who submitted the class action suit that led to Monday’s ruling.” Neither she nor Coffee would ever correct the record—Weddington happy to absorb the recognition of two, Coffee to go unrecognized. Says Coffee: “I don’t particularly care.”

Her mother, however, did. Days later, inside the Dallas headquarters of the Baptist General Convention of Texas, where Mary Coffee worked as a secretary, a reporter for the Baptist Press overheard her speaking of her daughter. Recalls Robert O’Brien: “She was proud.”

The mother could afford to be. For although evangelicals were shifting on the matter of abortion, the Southern Baptist Convention had resolved in 1971 to protect “the emotional, mental and physical health of the mother.” Sitting down with Linda Coffee in her law office, O’Brien found a woman of two minds. On the one hand, Coffee was confident in the rightness of Roe. Indeed, her chief complaint with it, as she would soon tell a student at Baylor writing a thesis on Roe, was that she felt the law ought not to restrict abortion until the third trimester. And yet, as she now told O’Brien, she “would have little personal sympathy for a woman who used abortion at any stage as contraception or to avoid personal responsibility.” She added: “From my personal Christian perspective, it would tear me up to have to make such a decision, unless an abortion took place in the very early stages.” Coffee then clarified the point. “I don’t think there’s a moral responsibility,” she said, “to continue a pregnancy which is only at the point where life will eventually result.”

Coffee would assert years later that to believe in personhood at conception “is essentially a matter of faith.” Coffee did not have that faith, did not believe in God. She did, though, put stock in the Bible; back in high school, her knowledge of it had won her a pin from a local jeweler. And she enjoyed religion. She was no less a member of the Park Cities Baptist Church than she was a feminist who months before had supported Shirley Chisholm, the New York legislator turned congresswoman, for president. The O’Brien piece—a meditation on the difficulty of reconciling sex and religion—was thus true to Coffee.

The reporter hoped to speak to Jane Roe next. Three days after winning her case, Coffee contacted Norma to see if she wished to remain anonymous.

NORMA HAD NOT heard from Coffee in the nearly three years since Coffee arrived at her home on San Jacinto Street with an affidavit to sign. Norma had obliged but moved on, telling no one that she was Roe—not her mother in a trailer on a riverbank in Louisiana or her father fixing TVs in an electronics shop in Old East Dallas or the women she drank with in gay bars in midtown or even Consuela Gonzales, her partner of two-plus years.

The women had met when Norma applied for a job at a market off Fort Worth Avenue, and Gonzales, the manager, drove her home. The women were almost seventeen years apart. But they were soon a couple, and Norma took to calling Gonzales “my little boy.”

Gonzales had been born in Dallas in 1931 to Spanish and Mexican parents. She was their fifth surviving child; two had died. The family was poor, with high cheekbones and brown eyes and little else. They ate beans and tortillas, hammered coffee can lids underfoot to keep mice from filling the frame house they rented on Pearl Street. Father Antonio, a tailor’s assistant, was not around and mother Clementia ironed clothes at a laundromat in downtown Dallas, returning home exhausted.

Jesus offered ballast. And the mother passed to her kids a love of both the Catholic church and manual labor—the young Consuela, who went by “Connie,” committing herself to both, to a lifetime of holy cards and hard work.

The girl was strong. She could lift and carry as much as most boys. And she was not long out of elementary school at Cumberland Hill when she began to hammer and paint and caulk, to build things and repair junk. One had to hustle. One had to get by. After she miscarried as a young teen, Gonzales never got pregnant again; better to have no child, she felt, than one not cared for. Besides, men were not for her.

Gonzales did not tell her mother that she was gay. But others did. “She was seen in public,” says her niece, Mary Helen Sandoval. “Gossip.” Connie soon left home.

Decades later, Gonzales had had few relationships when in 1971, she met Norma. They got along well, one liberated at twenty-three, one responsible at forty. Gonzales suggested that Norma have her tubes tied. Norma did so. “I told her,” recalls Gonzales, “you could have a better life.”

Norma was not in a good place. She was getting by in Old East Dallas, selling an underground newspaper devoted to the narcotics, the amphetamines and barbiturates, coursing through Texas. Norma herself took “mostly downers,” she said. They left her depressed. Only months before, having just given up a third child, she had been high and drunk on Wild Turkey when she tried to kill herself a second time, cutting her wrists with a safety pin. “I passed out,” said Norma. “My dad discovered me.”

A band of thin parallel scars was still forming on her wrists when Norma met Connie, moving weeks later into the house on Cactus Lane that Connie had bought with money earned spackling and painting. There, in northeast Dallas, Norma now had what she had not had before—a home. “It was clean,” she said. “It was orderly.”

Norma got a cat and hung a photo of her young self—a girl looking through cat’s-eye glasses at a German shepherd on a dirt road. Soon after, she asked Connie to take down her pictures of Jesus. Said Norma: “I always felt like He was watching me, you know, doing my cocaine, drinking my booze.”

Norma had not gone to work with Connie at that market off Fort Worth Avenue. Instead, she had, together with Connie, begun to paint and clean apartments in a pair of buildings on Dixon Street in segregated South Dallas. The buildings had a combined six hundred units. When a tenant moved out, a manager alerted Norma and Connie. The women, in sneakers and industrial clothes, drove off to Northwest Parkway to pick up keys from the office of realtor Dan Matise. Norma never told him that she was Jane Roe. Matise knew only that she was gay and hardworking and “rough as a cob,” he says. Together with Connie, she earned twenty dollars per cleaning, sixty per paint job—enough to have the paper delivered and buy cheesecake and get high and host what Norma called “poison parties,” weekend bashes that spilled over with beer, wine and vodka, pot, pills and cocaine.

Women also flowed through the home. But not men. Three times men had gotten Norma pregnant, and she was resolved to let them go—not only Woody and Pete and Bill but the pregnancies, the daughters and Roe, too, which, much like men, had left her to carry a child she did not want.

In the winter of 1973, Norma was wallpapering her kitchen with Connie when the radio announced the Roe ruling. Norma told Connie that she was the plaintiff Jane Roe.

It felt good to let go of a secret. And when Coffee called Norma, days later, with the name of a reporter at the Baptist Press, Norma phoned him at once. “It’s great to know that other women will not have to go through what I did,” she told O’Brien, her name in newsprint a first time on January 27, 1973.

Norma had been in her second trimester when she met her lawyers and sought an abortion. She told O’Brien that she would not do so again. “It’s hard to determine when human life begins,” she said. “I wouldn’t want to wait over three months for any abortion, because I might be ending a human life after that time.”

The Associated Press picked up O’Brien’s scoop—the plaintiff anonymous no more. But the Dallas Morning News ran the story on page 30, and no more press found her. Jane Roe was left alone to live and work with the woman she loved.

It was no surprise that Norma was disregarded. In the eyes of the law, Jane Roe was little more than an unwanted pregnancy. The Blackmun opinion had had to affirm that she even existed.

If the public did wonder who Jane Roe was, it had been left to assume that the plaintiff who’d won the right to get an abortion had gotten one. But amidst the reams written about Roe, there was one clip that carried news of a baby, the AP reporting that Jane Roe had delivered and relinquished her child for adoption.

The piece was tiny, 138 words long. But it contained a big mistake. Jane Roe had not, as Weddington told the reporter, carried her baby to term so as “to avert the possibility that the Supreme Court would declare her case moot.” She had, rather, delivered her baby because she had not been able to abort it, her pregnancy too far along.

The narrative of Norma had begun. And a few months later, a reporter from Good Housekeeping named Joseph Bell called her.

Norma wondered why. Her own lawyers had not much cared to know her. She, in turn, had not much cared about their case; when, months later, Norma listed in her red plastic datebook the important events of 1973, she included the Yom Kippur War, the Texas State Fair and the closing of a local theater, but not the lawsuit that bore her assumed name.

Bell wished to profile Norma. And, asked to look back at a quarter century of pain and missteps, Norma lied. She turned girlfriends into roommates. She turned an adoption into a kidnapping. She pinned the loss of a marriage on a beating rather than an affair. She did away with her second pregnancy. And asked of her third, of the conception that had led her to court, she did not speak of her hazy if consensual affair with a hustler named Bill. She spoke of a rape.

Three years before, Norma and her lawyers had said nothing of her impregnation or her pregnancy. (Only one justice had asked to know more, Rehnquist wondering how many months pregnant the plaintiff had been when she filed suit.) Norma’s affidavit had simply stated that she was pregnant with an “illegitimate” child. But now, with novelistic detail, Norma rid herself of the sin of wanton sex, telling the reporter Bell of footsteps heard on a stretch of unlit blacktop in rural Georgia, of ripped clothing and gravel burns, of her rape by a man “who looked ten feet tall.”

Norma did, however, speak one bit of truth. Asked about her child, she confessed that she had no idea who or where it was.

Just one person, in fact, did know who that child was: the lawyer who had found her a home.

Three years had passed since Henry McCluskey brokered the baby’s adoption. He had not told the adoptive family of the baby’s tie to Roe. And he had told no one—not Norma and not Coffee—the name of the family that adopted her.

THE ROE RULING was six months old when Coffee picked up a copy of Good Housekeeping. It was hard to know what to think. As Weddington would later write: “Neither Linda nor I knew what was and what wasn’t true about Jane Roe.”

Coffee didn’t much care. She had put Roe behind her. And, having turned thirty on Christmas day, she decided to leave town, signing up for a trip to Israel with other Baptist singles. They would fly to Athens, then boat to the Holy Land.

Her trip was upon her when, in late June 1973, her friend McCluskey went missing. Coffee was worried. She was in Israel when, weeks later, two fishermen found him dead in a ditch beside a Dallas dam, his body bound, two bullet holes beneath his right shoulder.

Coffee returned home to a parade of articles in the Dallas papers she would remember as “salacious.” For beneath the horrible facts—McCluskey robbed and drugged and shot by a man named William David Hovila—were intimations of a physical relationship, the lawyer identified by the Dallas Morning News as “a bachelor,” his killer “an admitted homosexual.” (Hovila would assert from prison that the men had been lovers.)

Family and friends would eulogize McCluskey in the Baptist church on Gaston Avenue where he and Coffee had met as kids. His father, a lawyer, would tend to the 149 clients his son left behind. But in all the paper remains of his practice, there was no mention of the Roe baby, of she who had been born in the spring of 1970 after birthing a suit.

The only person who had ever known her identity was now dead.