Coffee and Weddington were excited—more so than they had let on in McCorvey’s presence—about her potential as a plaintiff. Still, they could not afford to let their desire to get an abortion case under way interfere with their choice of a plaintiff, especially since both women knew that this would be no run-of-the-mill lawsuit. More than anything else, this perception would guide them in their selection of a plaintiff and would ultimately lead them to the realization that their personal desire to be the lawyers who successfully challenged the Texas abortion law or their fire to find a plaintiff and get a case—any case—under way was less important than the overall goal of overturning the Texas abortion law. A case like this was not intended to benefit one person, but the hundreds of thousands and even millions of Americans whose lives would be affected by a change in the abortion laws. To the extent that it was possible to do so, they wanted to choose a plaintiff who would be helpful to them in achieving the larger goal. It was not necessarily an easy task.
For one thing, they would need to exercise more control over the plaintiff than they would in another kind of suit. They would use her, if necessary, in and out of the courtroom to build their case. If they wanted to build public sympathy for the case, for example, they might leak all or part of her story to the press. Conversely, they might want to avoid publicity. Some judges forbade participants in a lawsuit to talk to the press, and in a situation like this, when a gag order was imposed, they would have to be able to prevent their client from talking.
For another thing, if it would help, they would want their plaintiff present in the courtroom during the proceedings, an event that would almost certainly destroy any anonymity she had. Her presence might even be required by the court. Alternately, they might try to play down her role, in hopes that she would be seen as a sort of Everywoman, a symbol of the need to reform the abortion laws. Either way, their plaintiff would have to be under their control. Would McCorvey, they asked themselves, submit to their guidance in matters like these?
Yet such considerations were just theoretical possibilities that might or might not occur in the course of the lawsuit. The most pressing practical issue, Coffee would recall in our conversations, was whether they could actually help Norma get the abortion she wanted. Just possibly they could arrange for her to obtain a court-sanctioned one, but chances were far greater that they would not be able to do so. The wheels of justice did not turn rapidly. By the time the legal system was through chewing on the wisdom of whether to allow her to have an abortion, Norma would most likely have had her baby.
Norma had looked pregnant to Linda Coffee since their first meeting. It seemed to Coffee that she was pushing, if not into, her second trimester. This meant that if Norma were to undergo an abortion, she should do so right away—probably within the next two or three weeks. The only way the two lawyers could see to act quickly enough was to file a request for a restraining order.
A restraining order, always temporary in nature (and thus often referred to as a temporary restraining order or TRO), could be granted without a hearing, although one would be held later to determine what relief was appropriate. Such an order would prevent officials from enforcing the abortion law and—in theory, at least—would then leave the physicians of Texas free to perform abortions. TROs, however, were basically designed to protect the status quo, and in this case the status quo dictated that abortion was illegal. It was unlikely that any judge would order an abortion to be performed without first examining the constitutionality of the Texas abortion law.
Furthermore, although this was something they had yet to research, Weddington and Coffee thought they could take their case into a federal court, that this was the proper forum for challenging a state law. It offered the possibility of a more encompassing decision, one that could set a precedent for decisions outside Texas. But it also made their case more difficult. The federal courts, ever wary of states’ rights issues, were being ultracautious, largely because of some recent rulings involving criminal cases in which they were perceived, at least by some, as having overstepped their power to rule on state laws. In fact, there was every reason to believe that a federal judge would be even more reluctant than a local or a state judge to issue a restraining order that would overturn a state criminal law.
Apart from all these considerations, even if they did find a judge willing to issue a TRO, they would still have to find a physician willing to do the abortion. That they suspected would be an impossible task as long as the law was still in limbo and the physician might risk later prosecution.
The first and most difficult decision the two lawyers made, then, was not to seek a TRO for Norma, even though that was her only chance for getting court permission in time to have a legal abortion. Since she wanted an abortion badly, this might mean she was not the best plaintiff for them after all. They needed to impress upon her exactly what this meant—namely, that she would most likely have to go ahead and have the baby if she became their plaintiff.
As the two lawyers met with Norma several times over the next few weeks and learned more about her, another potential problem emerged. Coffee and Weddington began to understand better something they had suspected from their first meeting with Norma—namely, that their potential plaintiff had a past and a present life that would not withstand much scrutiny.
Norma grew up in an unstable family. Her father was a military career man, and the family moved every two or three years. The frequent moves made school difficult for Norma, and she had never done well. Even after her father left the army when she was still in school and settled in Dallas, where he worked as an electrician, life did not become any easier for Norma or her only sibling, a younger brother. Between the two of them, Norma told one interviewer, her brother was a “punko” and she was a “freako.”
Her home life was trying. Her parents’ marriage was on the skids, aggravated by her father’s drinking problem. From an early age, Norma was a child who had nowhere to go. She avoided home because she could not stand listening to the drunken arguments of her parents, and she avoided school because she had been labeled a troublemaker and was often in trouble with the juvenile authorities.
Norma recalled the shock of coming home from school one day to learn, out of the blue as far as she was concerned, that her parents were divorcing. Her father had moved out. Once gone, he made no attempt to stay in touch with either Norma or her younger brother. She was now left with only her mother, with whom she had never gotten along. Later, Norma would always recall her mother as a cold, domineering woman who never gave her credit for doing anything right.
With so hostile an environment at home, nothing went right at school, either, and she soon dropped out of high school in the tenth grade and went to work at the only job she could find, a carhop in a drive-in restaurant. At the drive-in she met and began dating a twenty-year-old drifter who had dreams of glory. An aspiring rock singer, he promised Norma that he could build a better life for both of them in Los Angeles. Since she was still sixteen, Norma needed her parents’ consent to get married. Happy to have her out of the house, her mother agreed, and Norma married her would-be rock star and moved to Los Angeles with him.
Their new life did not go well from the beginning. Her husband could not find work, and Norma soon found herself pregnant. When she told her husband the news, he beat her. She waited until he fell asleep that night, gathered her clothes and the few dollars she had saved, and bought herself a bus ticket back to Dallas.
The period right before and after her baby was born was one of the lowest times of her life. At first Norma’s mother suggested that Norma put her child up for adoption, but gradually she softened and let Norma live with her. Norma tried to go back to high school after the baby was born, but she felt too out of place, in her own words, “like a pool cue in a china cabinet, like a big idiot.” She walked away from that. After her baby, a little girl, was born, she worked at a string of jobs, mostly waiting tables in bars at night.
Norma’s relations with her mother, never good, worsened after the baby was born. Norma’s mother constantly undermined Norma’s ability to care for her new little daughter. Norma recalls having been awakened by her mother from a sound sleep and, while still groggy, being forced to sign some papers that she believed gave her mother custody of her infant daughter. Shortly after that, her mother and stepfather moved to Arkansas, taking the child with them.
Norma missed her daughter terribly but had no money to visit her and did not know what she could do to regain custody. Moreover, she could not support a child on what she earned, nor could she care for a child properly with her unsettled life.
Left alone in Dallas, Norma maintained occasional contact with her father, although she was always the one to call him. Norma remembered those years as ones in which she struggled simply to make it through each day. She suffered from severe bouts of depression and would later recall, “It seemed like there wasn’t anything to live for. Everything I did or said was wrong. I just wanted to vanish.”
Vanish she did, in a sense, during the summer of 1969. She had gotten together enough money to visit her mother and daughter in Arkansas. The visit was not going well. The two women fought constantly over the child, while the little girl watched and listened. Norma sensed she was losing her daughter to her mother, who had taught the child to call Norma “Mama Big Sister.” After a week of quarreling, when Norma thought she could not stand much more of her mother’s house but had no idea where she would go, a new acquaintance offered to drive her to a nearby town for the day. She readily accepted.
The blocks around the town’s courthouse were occupied by a small carnival. Norma hung around, struck up a conversation with some of the people who worked there, and learned that there was a job available as a ticket seller. She took it and moved out with the traveling show that night. She had worked with the carnival only a few weeks when she got into the trouble that resulted in her second pregnancy.
After hearing so much about McCorvey’s background, Weddington and Coffee became concerned that she might not be such a good plaintiff after all. Her life thus far—a high school dropout, married at sixteen, a daughter she did not have custody of, walking out on a visit with her daughter to join a carnival, her present hand-to-mouth existence—was a major problem.
Another problem was the rape. In our talks, both Weddington and Coffee recalled that it was a delicate issue. Sensitive as the two women were to any woman’s claim that she had been raped—a claim that was too often ignored or, worse, challenged—they were also lawyers, trained to size up a potential witness’s credibility. And whatever had happened to Norma McCorvey, they did not feel that she would be a credible plaintiff in a rape case, let alone in an abortion case involving a rape.
Coffee in particular was struck by McCorvey’s lack of emotion when she described the rape at their first meeting. Some rape victims are stoic, even with the people who try to counsel or otherwise help them, but McCorvey’s remarkably unemotional recounting of how she had been raped made her lawyer uneasy. McCorvey was vague about the circumstances of the rape, and her story became more unclear and the details more bizarre with each retelling. She told Coffee and Weddington she had not gone to the police or filed any kind of official report. Initially, she said she had been raped by one man; she later changed her story and claimed she had been gang-raped, sometimes by several men and her female companions, sometimes by a white, black, and Hispanic man, a highly unlikely combination to have been walking together down a Georgia country road late at night in 1969.
Weddington and Coffee wondered whether McCorvey had, in fact, been raped, but regardless of the circumstances, they were concerned that the rape not become an issue in their case. Rape victims did not fare well in court. Their lives were often subjected to excessive scrutiny. In fact, much more attention was typically focused on the character of the women who were raped than on the men who raped them, and women who pressed rape charges frequently had to prove that they had not in some way “invited” the rape. Beyond that, there was the problem of blame—and punishment. However much rape (and, for that matter, abortion) laws appeared to be neutral, they were not. They were based at least in part on society’s standards and expectations regarding sexual mores. Therefore, a woman who was perceived as having “invited” a rape was seen as having gotten what she deserved, and similarly, a woman who “needed” an abortion had better be prepared to prove that she deserved one.
Such thinking made many movement lawyers cautious about whom they would take on as a plaintiff. Most abortion-reform lawyers speculated that any woman who became a plaintiff in an abortion suit would be subject to the same kind of scrutiny as a rape victim—a reason, they held, to find a plaintiff whose life and character were as impeccable as possible.
McCorvey’s clearly were not. Although Coffee and Weddington spent hours thrashing out the pros and cons of using her as their plaintiff, the issues were simple. On the one hand, the more they learned about her background, especially her claim that she had been raped, the more worried they became. On the other hand, in a year of looking, they had not found anyone who was better. For a start, not many women existed who were pregnant and wanted an abortion and were willing to become involved in a lawsuit to change the abortion law. Coffee and Weddington had learned from experience that finding a plaintiff was an almost impossible task, not least because, as one New York abortion reformer noted sardonically, “Short of a virgin, there is no such thing as the perfect abortion plaintiff.” Eager to get on with the business of challenging the Texas law, the two young lawyers were inclined to take their chances with someone who was less than perfect.
Their problem with McCorvey’s claim that she had been raped receded once they realized there were other reasons not to assign the rape any role in the case. Like any lawyer working on abortion reform, they hoped to obtain as broad a ruling on abortion as possible. They did not want a court to rule that women were entitled to an abortion when a pregnancy resulted from rape or incest—and this, they realized, was a distinct possibility, since current Texas law permitted abortion only to save a woman’s life, not in cases of rape or incest. No one had ever challenged the law on these grounds, and Coffee and Weddington had no intention of being the first to do so. So narrow a ruling would be a waste of time.
As a result, they decided that if McCorvey did become their plaintiff, they would do everything possible to keep the rape from becoming an issue in the case. They reasoned this would not be hard to do since there were no police reports or witnesses or any other records to attest to the rape.
Ironically, had Norma decided to pursue an abortion in Georgia, the state in which she was living when she claimed she was raped, she would have been legally entitled to one. Georgia’s reform-style law, passed in 1968, permitted abortion in cases of statutory and forcible rape (but not for incest).
Norma would have had great difficulty, however, obtaining an abortion in Georgia. Although intended to liberalize abortion, most of the reform laws were now even more complicated than they had been in the past. Under the new reform law in Georgia, for example, Norma would have had to reside in the state for a specified period of time, and she would have needed the approval of two physician-consultants and the hospital’s therapeutic board, also composed of three physicians. Lawyers were already mounting a challenge to this complex reform law.
Once Coffee and Weddington decided they wanted to keep any mention of the rape out of the case, they had to figure out how best to do this. This Weddington said they accomplished by making sure that no references to the rape appeared anywhere in the court papers. They had no qualms about doing this, no sense that they were manipulating their client’s story or interests.
The idea of not mentioning the rape also appealed to them on another level. Just as they did not want the case decided on narrow grounds, neither did they want the record to contain anything that might later be subject to a legal challenge. Their aim of compiling a flawless court record, one that would be acceptable to any higher court and would also stand the test of time, was well served by omitting the rape.
They did realize that some potential existed for an embarrassing and possibly damaging episode if McCorvey decided to talk to the press at some later date, or worse, if the press decided to ferret out her past. If she revealed her story, attempts would undoubtedly be made to verify the rape. While Coffee and Weddington strongly suspected that any such investigation would not pan out, they recognized that the disclosure alone could result in a damaging contradiction between the official court record and McCorvey’s version of what had happened. As they discussed this potential scenario for disaster, they found yet another cause for relief in their decision not to mention the rape. Without a reference to it in the court papers, the rape would never become a legal issue.
Mostly, they hoped to be able to keep the press and their client far apart. Apart from any legal considerations, they recognized that if the case did catch the media’s attention, they might also have to contend with the opponents of liberalization, who would make political hay of the fact that Norma McCorvey was not the most stable personality. Fortunately there was no crime in that, and particularly if a decision had already been rendered, her personality and life-style would not be grounds for any legal action to overturn the case.
The second time the three women met, the lawyers explained to McCorvey that in all likelihood she would have to go ahead and have her baby if she became their plaintiff. They told her there was almost no chance that a court would decide her case in time for her to get an abortion, and that possibly the law would not be overturned at all.
Coffee and Weddington offered to help Norma get an abortion if she wanted one. They felt honor-bound to do so. There was a slight chance that they could still use her as a plaintiff even if she got one. Coffee thought they could perhaps build a case around the argument that their client had been forced into a dangerous, possibly septic and illegal act, and that it was a violation of her (and by implication, other women’s) civil rights to put her in this position. Both women knew, however, that they were far more likely not to use Norma as their plaintiff if she got an abortion. They would probably go looking again for a pregnant woman who would be willing to be their plaintiff.
Norma turned down their offer and agreed to go ahead and have the child. Although Weddington would recall that her motives for doing so had been largely altruistic, her decision was also undoubtedly motivated, at least in part, by the simple fact that four months into her pregnancy she was not likely to get an abortion anyway. After three months, abortion was done by a mini-Caesarean section and was considered major surgery. Rarely could a “legal” hospital abortion be arranged at that stage, and illegal abortionists never risked this kind of surgery. In another fifteen years, the technology would be developed to make late abortions safe, but in 1969 it did not yet exist.
The next thing Coffee and Weddington brought up with Norma was how long the case might take—months or even years, if it were appealed. Although the legal maneuverings would be complicated and difficult for any layperson to understand, they promised they would do their best to keep her informed throughout the case.
Finally, the three women discussed the publicity that would quite likely ensue from the case. Abortion was rapidly becoming a hot topic with the media, and hardly a week went by without another newspaper series, editorial, or nationwide poll pointing out the mounting pressure for reform. Although the subject had been taboo only two or three years ago, women’s magazines now wrote regularly about abortion—usually touting reform. Weddington and Coffee suspected that a torrent of publicity would begin once the press got wind of their suit. With it, they feared, might also come some harassment of their client or, at minimum, the loss of her privacy.
The latter would be more overwhelmingly intrusive than she might imagine, they warned. They could try to protect her from it but might not be able to do so. If the court insisted that she appear or testify, they would not be able to keep the press from identifying her and delving into her background. The press would be eager to interview her. She would, they warned, become the “human interest” in an otherwise relatively dry legal case.
Norma’s fears about publicity had more to do with her family than anything else. Her father was a Jehovah’s Witness, and her mother was nominally a Roman Catholic; while neither parent was particularly religious, she worried that they might have strong antiabortion opinions. They had never expressed any feelings one way or the other about abortion, but then she had not told them she was trying to get one.
On the one hand, Norma was acutely aware that very little she had done in life had met with her parents’ approval, especially her mother’s. Her mother had shown no sympathy or inclination to help when she learned that Norma was pregnant and homeless the first time, and she was hardly likely to take a more generous view of her daughter’s situation now, especially if it were reported in the local newspapers.
On the other hand, although Norma was a rebel, like most youthful renegades what she really wanted from those she railed against was acceptance. Just possibly the case might give her some of that. Certainly the fact that she knew two women like Linda Coffee and Sarah Weddington would impress her mother, and that she was a plaintiff in so important a case might also carry some weight.
Ultimately Norma decided to go ahead with the lawsuit but indicated she wanted as little publicity as possible. She specifically did not want her parents or her daughter to know of her role in the case. Nor would she tell her friends. When Coffee and Weddington suggested the use of a pseudonym, she readily agreed. It would at least offer her some protection. They quickly settled on Jane Roe.
Coffee and Weddington would prove to be quite successful at protecting their client’s privacy. Over the years, reporters would occasionally try to discover Jane Roe’s identity, usually on important anniversaries of the case. Her lawyers grew so used to her refusals to grant interviews that they no longer called her with requests. For ten years, until Norma herself broke the silence, no one, not even other lawyers who would work on the case, knew who Jane Roe was.
When McCorvey broke her silence in the early 1980s, she talked only to a handful of reporters and writers before engaging the services of an entertainment lawyer in Dallas. After that, she would only agree to be interviewed if she were paid. As a result, she was never interviewed for this book.
Coffee and Weddington had only one last concern to bring up with McCorvey before settling on her as their plaintiff, and that was whether she would be able to go the whole way with them. After having come so far, they could not bear the thought of putting in months of work on the case only to have their plaintiff get cold feet and ask them to drop the suit. They talked to Norma about this, too, until both women were convinced she would stay with them.
From their first meeting with Norma, Coffee and Weddington had been impressed with her enthusiasm and spunk, as well as her desire to help other women who were in the same situation. Through all their discussions, Norma never wavered from her willingness to proceed. In our conversations, Weddington would recall that Norma seemed to have some sense of the historic proportions of the case.
The three women agreed that it was settled: Norma McCorvey would become their plaintiff. A challenge to the Texas abortion law, which had stood inviolate for over one hundred years, was under way.