Chapter 22

Norma had only just begun, in the spring of 1989, to fully immerse herself in Roe when she spoke to Linda Coffee for the last time. Norma asked her former counsel to help her get out of paying a lawyer who’d negotiated her fee for the NBC movie. Coffee told her she could not do so. Ethics aside, she was busy readying for a trial—her own.

Coffee’s indictment for alleged fraud had been issued that same spring, and she and her lawyer Kim Wade met repeatedly in his office over Mexican takeout. “I wanted to make sure that she was prepared to testify under direct examination,” says Wade. He adds: “It was terrifying for her to go before a jury.”

The trial began in August, and Coffee testified that she had neither concealed documents nor forged a signature. “Some of the jurors really reacted negatively when the prosecutor was screaming at me,” she says. “One of the men covered his ears.”

Back in law school, Coffee had taken no classes in Evidence because she never thought she would try a case. But the records she’d subpoenaed corroborated her testimony. At the close of her seven-day trial, judge Joe Fish acquitted her, preventing the case from being ruled on by the jury because, he determined, the prosecution’s evidence was “insufficient to sustain a conviction.”

Seated in the courtroom, Coffee’s parents and partner exulted. The case, says Coffee, “was just gone.” But despite her exoneration, her humiliation remained and she struggled to enjoy all the good in her life: her partner and dogs and home. “It was a travesty,” recalls her partner, Rebecca Hartt. “The damage was already done to her psyche.”

Her old co-counsel tried to lift her up. Over dinner, Sarah Weddington told her that she, too, had endured bad press. But unlike Weddington, Coffee was sensitive and shy. Forty-six years old, she retreated further into herself. “She became less and less talkative,” says Peggy Clewis, a secretary at her firm. “She kind of withdrew.” Adds Virginia Whitehill, the Texas feminist who’d worked with both her and Weddington, and who hosted them for dinner after the trial: “She didn’t want to see anyone anymore.”

Coffee was depleted, distracted. And for the fourth time since joining the Texas Bar in 1968, she failed to pay her membership fee when it was due, the lawyer delinquent again just two weeks after her acquittal.

Coffee quickly paid the $120 she owed. She was back in good standing. But “she looked tore-up,” recalls Kent Frank Brooks, a lawyer who partnered with Coffee on a bankruptcy case the next year. “She was troubled.” Brooks had been excited to work with Coffee. But he wound up not only doing their oral argument but writing the briefs as well. All the while, he says, “she was muttering a little bit about money problems.”

Those problems persisted; in September 1991, the Texas bar again suspended Coffee after she failed to pay what she owed. She paid up and was reinstated in November. But she had fallen behind in her mortgage, a bankruptcy lawyer suddenly facing bankruptcy. Coffee had, in fact, little more to her name than Roe. But as her legal legacy neared its twentieth anniversary in 1992, it, too, was suddenly in peril.

WHEN COURTS RECOGNIZE a new constitutional right, or liberalize in some way the social order, the public usually acclimates. The constitutional scholar Geoffrey Stone noted, for example, that when, in the decade before Roe, the courts rid public schools of prayer and made interracial marriage legal, 79 and 72 percent respectively of the American public disapproved, rates that dropped over time. But abortion was different. Opposition to Roe became more hostile after its issuance. Some blamed Roe itself for that hostility.

Ruth Bader Ginsburg, then a federal judge on the DC Circuit Court of Appeals, had famously written that the ruling “appears to have provoked, not resolved conflict.” It had, she would soon add, “halted a political process that was moving in a reform direction.” Her argument would carry. As the columnist David Brooks later wrote: Roe “set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” But for Roe, he added, “we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue.”

Not so, said John Rich. The former Blackmun clerk who had helped to craft the Roe ruling believed that had Roe not legalized abortion, the abortion statutes in many states would likely have remained “extremely strict.” Professors Linda Greenhouse and Reva Siegel agreed. They noted that “liberalization efforts seem to have stalled after 1970,” and that the Republicanizing of opposition to abortion preceded Roe. “Political realignment,” they wrote, “better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.”

What is without doubt is that Roe galvanized those opposed to it. Only weeks after the ruling, a Catholic weekly observed that Roe had “nationalized the anti-abortion movement.” That movement had achieved great legislative and judicial successes: the Hyde amendment, the Supreme Court ruling in Webster. And yet, almost two decades after Roe, its overarching goal remained. As Kenneth Starr, then the Solicitor General under George H. W. Bush, wrote in a 1989 brief: “Roe was wrongly decided and should be overruled.”

Two and a half years later, in April 1992, that overruling seemed at hand. Abortion had returned to the Court. And with the recent appointment of Clarence Thomas, the quartet of justices who’d made clear their intention to overturn Roe seemingly had their fifth vote.

The case was Planned Parenthood v. Casey. At issue were five Pennsylvania abortion regulations which mandated, for example, that women or girls wanting an abortion had to first notify their spouse or get consent from a parent. Five local clinics and a doctor had filed suit against Robert Casey, the pro-life Democratic governor of Pennsylvania, and a district court had declared the regulations unconstitutional. But an appeals court had upheld all but one of them. The Supreme Court would now decide whether they were in conflict with Roe and whether Roe itself would remain good law.

ABORTION IS GIVEN TO ABSOLUTES. “It is,” wrote the bioethicist O. Carter Snead, “the pristine exemplar of a ‘vital conflict.’” And Roe, in just one generation, had come to pit America against itself, choice and life engaged in a war: “a domestic war,” “a holy war,” “an emotional and intellectual civil war.”

Some Americans, however, were unsure on which side they stood. Like the writer Anna Quindlen, they were left “hating the idea of abortions, hating the idea of having them outlawed.”

The journalist Roger Rosenblatt postulated that most Americans were similarly conflicted. How else, he wrote, to make sense of a 1990 poll that showed that 70-plus percent of Americans considered abortion a form of murder and yet wished to preserve the right of a woman to have one? He suggested a policy of “permit but discourage.”

The Democratic Party was not by rights opposed to that. In 1992, its platform sought to make abortion “less necessary.” But pro-life leaders wanted to outlaw it entirely; having long pledged to protect the unborn, the Republican Party now asserted that the “right to life . . . cannot be infringed.”

It was thus no surprise that the few attempts at compromise failed. The Common Ground Network for Life and Choice, a tiny organization promoting dialogue through workshops and papers, folded. And a 1979 meeting between pro-choice and pro-life leaders at a hotel in DC ended when a young woman pulled back a blanket in her arms to reveal an aborted female fetus.

Mildred Jefferson had been present at that meeting, and expressed sympathy for the saboteur. The doctor was not one to acknowledge the other side. The writer Katha Pollitt would observe that abortion was “one of those subjects about which people have not only their own opinions but their own facts,” and Jefferson would, for example, dismiss as “all wrong” verifiable studies on the harmful effects of teen pregnancy. That Jefferson herself recalled hearing of pregnant teens back in Texas who had died “with no real good explanation” had no discernible effect on her. The impermissibility of abortion was both her start and endpoint.

In this, Jefferson was not alone. Regarding abortion, the tail wagged the dog not only in politics but in constitutional theory. “A great number of Americans have decided what kind of constitution they want by asking what kind would benefit their side of the abortion argument,” wrote the legal scholar Ronald Dworkin. And, of course, conservatives wanted the government to intervene when it came to abortion, liberals for it to butt out. As a new NARAL slogan put it, shifting its focus from personal autonomy to government intrusion: “Who decides? You or them?”

In the spring of 1992, the Supreme Court prepared again to answer that question in the case of Casey.

OVER THE THOUSAND WEEKS that had passed since Roe, Harry Blackmun had absorbed the damnations of the half of America that opposed it. Even at eighty-three, the justice continued to read his way through bags of hate mail.

Roe precipitated other attacks, too. The Yale Law Journal ran a withering assessment of it just three months after the decision. Roe was “bad,” wrote professor John Hart Ely, “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Robert Bork concurred. “In the entire opinion there is not one line of explanation,” he wrote, “not one sentence that qualifies as a legal argument.”

Roe was indeed short on constitutional analysis. Blackmun devoted just two paragraphs to his argument that the Constitution guaranteed a right to privacy and with it abortion. (He did, though, cite within them fourteen cases from which he intuited that right.) And as the years passed, legal critics offered up so many alternate legal analyses of abortion, rooted the right to abortion in so many amendments, that Richard Posner dubbed it “the Wandering Jew of constitutional law.”

Of course, legal scholars praised Roe, too. A group of nearly nine hundred American law professors had filed a brief in Webster affirming the legal right to abortion “as delineated . . . in Roe v. Wade.” Rooting that right in privacy, contested as it was, also proved a valuable precedent for numerous cases having little to do with abortion, including the right to sexual intimacy and the right to die.

Blackmun observed it all. The justice was a champion of women; while on the Court, he would hire female clerks at a greater rate than any other male justice. And his jurisprudence had caught up with him. Having largely pinned the legality of abortion to the rights of doctors, not women, it was women—and their “fundamental constitutional right . . . to terminate a pregnancy”—that he invoked in the first sentence of his dissent in Webster. Blackmun had evolved.

The justice was the last member of the seven-vote Roe majority still on the bench. And as arguments began in Casey, in April 1992, he listened with his two hearing aids, his singular achievement in the hands of his fellow justices. David Souter was among them.

SOUTER WAS DEEPLY GROUNDED; the writer Janet Malcolm would note that he possessed a “moving absence of self-regard.” The justice had grown up in a farmhouse in the New Hampshire town of Weare, and had returned to Weare after his schooling at Harvard and Oxford, there to live until the Supreme Court took him from it, in October 1990, as an unmarried man of fifty-one. Resettled in the capital, he did his best to live without fuss, to jog, to eat his apples core and all, to write longhand by natural light; no electric lamp lit his chambers until dusk.

Souter had spoken of Weare at his Senate confirmation hearing. But he’d said little of Roe, telling the Senate committee that it would be “inappropriate” for him to comment on it. Pro-choice leaders were sure that the Bush appointee was a foe. “I tremble for this country if you confirm David Souter,” warned Molly Yard, president of NOW, at his confirmation hearing. “He will be the fifth vote to overthrow Roe v. Wade.”

To know the judge, however, was to know that he “thought and cared more deeply about the Constitution than he did about politics,” as Dahlia Lithwick wrote. It was also to know that his judicial hero was John Marshall Harlan II, a justice who believed deeply in the power of precedent. Asked again and again about Roe—the ruling so dominated his hearings that one senator labeled them “a mockery”—Souter had made clear to the Senate committee his respect for what he termed “extremely significant issues of precedent.” That Roe had been law for a generation, he intimated, might be every bit as important as the question of its rightness.

Souter knew that abortion was likely to return to the Court. His first term on the Court was ending when, in June 1991, he asked his four outgoing clerks to write down their thoughts on the matter. Just one argued in favor of Roe, that clerk handing Souter thirty-two crystalline pages that centered on stare decisis—the doctrine that held, as Souter did, that legal precedents should ordinarily not be overruled. On the matter of abortion, wrote the clerk, that doctrine was particularly compelling. “Roe,” he wrote, “implicates uniquely powerful stare decisis concerns.”

Prominent among those concerns, wrote the clerk, was that the influence of Roe on the selection of justices posed a particular danger. “If Roe is overruled,” he argued, “the public will understand that the Court’s reversal is explainable solely by reason of changes in the composition of the Court.” Thus, he concluded: “The damage to the public understanding of the Court’s decisions as neutral expositions of the law . . . would be incalculable.” The memo added that all of the proposed legal rationales for overturning Roe would threaten Griswold, the landmark decision recognizing a right to contraception. And it was relevant to the goals of stare decisis, wrote the clerk, that a generation of women had acclimated to Roe, had “shaped their lives around that right.”

The memo further argued that Roe, while not beyond criticism, had a grounding in constitutional law “stronger than it currently seems fashionable to recognize.” Still, the clerk allowed that if Souter felt it prudent, concerns over stare decisis would be less severe with “a relatively minor adjustment of Roe,” namely, replacing the trimester framework with the “undue burden” standard of regulation that Justice O’Connor had endorsed a decade before; any law that unduly burdened a woman’s right to obtain an abortion would be invalid.

All of this Souter read. And he had just concluded that the Court ought to reaffirm Roe when, in conference two days after oral arguments in Casey, a majority of his fellow justices concluded the opposite.

Souter was dismayed. And as Rehnquist, the Chief Justice, prepared to write a majority opinion in support of Pennsylvania and its abortion regulations, Souter set out to rescue Roe, reaching out to Justice O’Connor, and then, with her, to Justice Kennedy.

O’Connor and Kennedy were unlikely allies of Roe. The first had told a Senate committee of her “abhorrence of abortion as a remedy.” The second, in ruling on Webster, had stated his desire to overturn Roe.

But O’Connor—who was married—was troubled by the requirement of spousal notice. And Kennedy now wanted to find “some stable, defensible middle ground on Roe,” as the former Blackmun clerk Edward Lazarus later wrote, “an endeavor Kennedy could sell to himself as truly judicious and advancing the country’s welfare.” And so, the trio of justices, working in stealth apart and together, wrote an opinion that upheld Roe at its core. “Rehnquist and Scalia were stunned,” observed the Los Angeles Times. “So, too, was Blackmun.”

The ruling was a compromise. Half of it, which Blackmun and Stevens now joined, upheld the “essential holding of Roe,” namely, the right to an abortion through viability. The other half adopted a new subjective standard of abortion regulation, O’Connor’s “undue burden.” The three justices concluded that four of the five Pennsylvania regulations cleared that standard, and that became the decision of the Court: Blackmun and Stevens joined the troika in striking down the spousal notification requirement, and the remaining four justices voted with them to uphold the other regulations.

The “undue burden” standard, which was now effectively the law, did away with the trimester framework of Roe; henceforth, states could impose certain abortion regulations from conception on. “Even in the earliest stages of pregnancy,” the ruling explained, “the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term . . .”

Still, the great upshot of Casey was that it preserved Roe. And on June 29, 1992, O’Connor, Kennedy and Souter each read aloud portions of their joint opinion, the first time in forty-four years that an opinion of the Court carried the name of more than one justice. It was Souter who spoke the meat of it. “The ability of women to participate equally in the economic and social life of the Nation,” he said, “has been facilitated by their ability to control their reproductive lives.”

It was a remarkable sentence. For it spoke of equality, not privacy, the legal grounds which Ginsburg and others had famously asserted ought to undergird Roe.

The justice, in black robe and graying hair, then turned to the legal underpinning of Casey—the reliance on precedent that, he said, now called upon both sides of the abortion debate “to end their national division by accepting a common mandate rooted in the Constitution.” He continued, reading aloud a paragraph that would stand, in the words of historian David Garrow, “among the most memorable lines ever authored by an American jurist”:

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court’s legitimacy beyond any serious question.

Souter finished speaking. He had been true to himself and also to the example of his hero, Justice Harlan. Having engineered a remarkable rescue of Roe, the justice, his second term on the Court now complete, drove his Volkswagen home to New Hampshire.

A Supreme Court laden with eight Republican appointees had affirmed Roe and, with it, its aging author Blackmun. His legacy was intact. So, too, was that of its plaintiff. Two years later, having just retired from the Court, Blackmun recalled hearing that Norma McCorvey wished to shake his hand.