May 23, the day of the oral arguments in the Fifth Circuit Court, was merely overcast, but it could have been pouring rain and Coffee’s and Weddington’s spirits would not have been dampened. Both women were surprisingly self-confident considering their youth and inexperience. This would be Weddington’s first courtroom appearance, and Roe v. Wade was certainly the biggest case Coffee had ever handled.
The two women met early on the morning of the hearing to review their arguments. Coffee would lay the groundwork with a discussion of the technical, procedural issues involved, but both women were eager to drive home the idea that a woman’s right to abortion was constitutionally protected. This was the crux of their case.
They would be sharing their arguments with Fred Bruner and Roy Merrill, counsel for Dr. Hallford. Although the lawyers had talked with one another several times over the past few months, they would be meeting that morning in person for the first time. Since their primary responsibility was to their client, Bruner and Merrill planned to argue that the laws were vague and overbroad, the typical defense when a doctor was accused of illegal abortion. These were constitutional issues, too, but a ruling that the Texas law was vague or too broad did nothing to establish a woman’s constitutional right to abortion. Eager to cover as many bases as they could, Coffee and Weddington were not averse to having these arguments made so long as they got to present the view that women had a constitutional right to abortion.
The hearing was to be held in Judge Hughes’s courtroom in the Dallas federal courthouse. Outside the main entrance on Ervay Street, large, shiny brass letters proclaimed the building’s odd dual usage: United States Post Office and Courthouse. Occupying a full city block, the building had been constructed in the 1930s by WPA workers.
The first floor bustled with the usual activity of post offices everywhere, and only on the second and third floors, where the judges’ chambers and the courtrooms were located, did the building take on the somber aura one associates with courtroom proceedings. White marble rose halfway up the white plaster walls, interrupted by the heavy oak double doors of the courtrooms. Unlike the post office, where civil servants and citizens mingled across open doors and counters, the marble walls and closed doors of the courthouse acted as a barrier between those who came for justice and those who were charged with dispensing it. Voices were eerily muted as if they came from some lofty, far-off place. Walking on the barely worn granite floors, I automatically slowed and lightened my pace, a fruitless attempt to reduce the echo of my footsteps, which were by far the loudest noise to be heard. A child would know without being told not to frolic in these halls.
The courtroom was packed, primarily with women and the press. Whitehill and her band of reformers had done well rounding up spectators, and most of the seats were filled with interested, pro-choice women. (Outside, five women carrying placards that proclaimed “My body, my decision” and “Compulsory pregnancy is a cruel and unusual punishment” picketed the courthouse throughout the proceedings.) Print reporters, chattering like magpies among themselves, crowded into the other unoccupied seats. By nature far more curious than the average observer, they spent the entire half hour or so before the hearing bouncing theories and prognostications off one another. Notably absent were any television people. Portable videotape cameras had not yet revolutionized the evening news with live, on-site reportage, and since the television stations had nothing to show, they were not much interested in the case. Rumor held that one judge’s wife was present in the courtroom, but rumor often held that when an important case was being heard. The Does were present, Norma McCorvey was not.
At eight months, McCorvey’s pregnancy would be difficult to conceal, but Coffee and Weddington were not eager to have their plaintiff in the courtroom for other reasons. They did not know how thoroughly the state had investigated her background, whether, for example, they had found out who she was, how pregnant she was, or anything about how she lived. Her presence might trigger prejudicial comments about her lifestyle or unmarried status or strengthen any arguments the state planned to make along these lines.
Keeping McCorvey out of the courtroom was not difficult. She was so unavailable—usually taking up to three or four days to locate—that had they wanted her present at the last minute, they probably could not have arranged it.
The Fifth Circuit three-judge court was called to order promptly at ten A.M. Coffee and Weddington were lucky their case was being heard on the Fifth Circuit. On its bench throughout the 1960s and early 1970s sat some of the most learned, experienced, and even-handed jurists in the nation. Until Roe came before the court, the Fifth Circuit was best known for having undertaken the sometimes painful implementation of the Brown v. Board of Education decision, which had ordered the desegregation of American public schools. Described by one court watcher primarily as the “pace horse for the development of race relations,” the Fifth Circuit, which at that time encompassed Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas (it has since been subdivided), actually had a turf more complex and diverse than that of any other federal circuit. Its justices routinely handled maritime, border and immigration, land speculation, and gas and oil law.
The members of the abortion case panel had been announced several months earlier. All three were Dallasites. In one chair sat William McLaughlin Taylor, whom intimates called Mac. Appointed to the federal bench in 1966 by President Lyndon B. Johnson, Judge Taylor had encountered his first controversial case shortly after he took his seat. In the nation’s first case of its kind, he upheld a school’s right to refuse enrollment to three long-haired male youths. The decade-long Dallas school desegregation case began in Taylor’s courtroom in October 1970. Within a year Taylor had ordered the busing of 7,300 students, a plan that was later overruled in the Fifth Circuit Appeals Court. A second plan, which Taylor also approved, was rejected by the Supreme Court. Taylor reopened hearings on the case a third time but withdrew when criticism surfaced over the fact that his former law firm had defended the school system.
Taylor was known for his fairness and patience, the latter a rare trait on this particular panel of judges. An experienced litigator, he prided himself on never having held an attorney in contempt of court. One law clerk recalled: “He was very willing to sit there and let the attorneys put on their cases. But he never lost sight of the fact that it was not the lawyers’ cases, but the litigants’ cases.” Taylor’s background before going on the bench had mostly been in trial law, and with criminal charges pending against their client, Bruner and Merrill considered him a most welcome addition to the panel.
The sole woman on the panel was Sarah Tighman Hughes, who could, it had been said, “strut sitting down”—a reference to the fact that Hughes more than compensated for her small physical stature with a peppery personality. Having achieved national recognition as the judge who swore in Lyndon Johnson after John F. Kennedy’s assassination (something she did not consider the highlight of her career), she shortly thereafter shocked people with her scathing denunciation of Dallas as a city that tolerated a “climate of hate.”
Hughes’s other foray into the national limelight had occurred in 1935 when she was nominated to a district judgeship. A state senator who opposed her nomination said she “ought to be home washing dishes,” to which she retorted that the senator would not have been elected to his position if “his charming wife had been home washing dishes instead of campaigning for him.” To further reinforce her point, Hughes invited the national press to her home to take pictures of her at her kitchen sink.
Hughes never wavered in her support of women, although she preferred to think of herself more as a role model for what young women could do rather than an active feminist. When Whitehill once confessed to Judge Hughes that she was feeling depressed over the lack of response to abortion reform, Hughes admonished her: “Why, Ginny, I wanted to put women on juries in the 1930s, and Texas didn’t let them sit until 1954. Don’t you dare give up.”
President John F. Kennedy appointed Hughes to the federal bench in 1961. Opposition to her appointment arose, ostensibly on grounds that at age sixty-one she was too old; actually, those who opposed her appointment did so because they resented her political activism while on the bench. Insulted that either reason should be grounds for keeping her off the federal bench, she decided to fight for the job. A lifelong liberal Democrat with ties to House Speaker Sam Rayburn and Senator Ralph Yarbrough, Hughes called in years of political favors that were owed to her; as a result, her nomination sailed smoothly through the Senate.
Hughes was right about not being too old for the job: the federal bench got over twenty years of good service from her, years in which she refused to relinquish her overtly political activities. Coffee and Weddington would have been pleased to have any woman on the panel, but as they stared at the small red rose embroidered on Judge Hughes’s robe, they knew this was a judge they would have chosen themselves had the decision been up to them.
The remaining judge, the man who would dominate the hearing, was Irving Goldberg, a feisty personality widely admired for his intellectual prowess on and off the bench. Being subjected to rapid-fire questioning by Justice Irving Goldberg, who was always one step ahead of everyone else in the courtroom, was an experience lesser lawyers preferred to avoid if possible. Even the brightest Dallas lawyers liked to tell themselves that it was hard for anyone to look smart when Judge Goldberg was doing the questioning.
He was an intensely private man; little was known about his life off the bench. Prior to his federal appointment in 1966 by President Johnson, Goldberg had spent most of his professional life practicing law in Dallas. He was deeply involved in the civic and philanthropic life of the city and in 1968 was awarded the prestigious Brotherhood Citation of the National Conference of Christians and Jews.
Coffee and Weddington were more than willing to take the risk of looking stupid, however, to have someone with Goldberg’s leanings and integrity on the panel. He was the Fifth Circuit’s most consistent liberal and had, in the words of one Fifth Circuit scholar, shown “unwavering support for enforcement of civil rights and liberties.” However, Judge Goldberg was above all else a practical liberal who sought solutions that worked; that might serve them well.
From Coffee and Weddington’s point of view, the panel looked as if it had been hand-picked for them, and indeed, many people were willing to believe that Fifth Circuit Chief Judge John Brown had weighted the panel in favor of the abortion-reform forces. It is highly unlikely that he did any such thing. First of all, the Fifth Circuit at that time was judicially active and liberal; second, there were guidelines about the choice of judges for a three-judge court. Since Coffee had filed two separate cases, which were assigned to two different judges, the judges in whose court the cases fell were automatically appointed to the panel when the cases were consolidated; that accounted for the presence of Taylor and Hughes on the panel and left Brown with only one justice to appoint with a free hand. That had to be a circuit judge, and Goldberg was an obvious choice since he lived in Dallas. Nevertheless, the makeup of the panel provided the two young lawyers with an enormous psychological boost.
Since Coffee was handling the legal technicalities of the case, she would speak first. Her arguments were of the utmost importance. Any challenge to a state law, particularly one brought in a federal court, is regarded as a serious matter, largely because the Constitution contains guarantees that are designed to protect the states’ autonomy from the federal government. When such cases are brought before a federal court, special legal barriers are imposed to insure that the federal government interferes as little as possible with the affairs of a state. For example, before the court could weigh whether or not McCorvey was legally entitled to an abortion, it had to consider such things as whether she had any right to sue the state of Texas over its abortion law and, if she did have a right to sue, whether she had a right to sue in a federal court. The federal courts were obligated to let the states resolve such issues either through the state court systems or through legislative action whenever possible.
A federal court could step in only under rare circumstances, when, for example, as Coffee would now argue, a state was infringing upon a citizen’s basic, fundamental rights as guaranteed in the Constitution. It was now Coffee’s job to persuade the court to look beyond these limitations on its right to interfere with the affairs of a state to render a decision on the merits of the case, that is, whether or not her client (and by implication, all women in Texas) had a right to control her own body.
Coffee began by discussing the kind of relief the court could grant her clients. It could grant declaratory relief, essentially a statement indicating that it found the Texas abortion law to be unconstitutional. It could also grant injunctive relief, a more effective remedy, in which it would, in effect, order the state of Texas to stop enforcing its abortion law.
Although the assumption was made that a state would follow any ruling by a federal court, this was not necessarily the case, particularly in the emotionally charged 1960s when state laws were routinely challenged in federal courts. For this reason, the granting of injunctive relief was considered a more serious legal action than the granting of declaratory relief. Depending upon one’s leanings (that is, whether one was an ardent states’ righter or a believer in a strong federal government), an injunctive order directed at state officials could be seen as insult added to injury (the injury being the declaratory relief) or an added incentive to obey a federal court ruling. The federal courts were understandably reluctant to issue an injunction to a state if they could avoid doing so.
Coffee believed that both kinds of relief were necessary if her client and the women of Texas were to have any real access to abortion. If the court granted only declaratory relief, she feared that the status of the Texas abortion law would be left in limbo, and that doctors and hospitals would not be willing to perform abortions until the matter was resolved. That would not happen until the state legislature rewrote its abortion statutes, something that could take months or even years. Furthermore, there was no guarantee that the new law would not be even more restrictive than the original.
If the court issued injunctive as well as declaratory relief, however, abortion would become legal virtually overnight in Texas, since law enforcement officials would be under court order not to enforce the law. Coffee was certain that this would guarantee access to abortion. Without the threat of prosecution, many hospitals and doctors would perform them gladly.
In order to convince the court that her client was entitled to both declaratory and injunctive relief, however, Coffee had to persuade the judges that the abortion right was constitutionally protected and that it fell into the category of fundamental rights that were afforded special protection. For example, First Amendment rights involving free speech and assembly were so protected.
Coffee believed that another federal case, Stanley v. Georgia, had extended the same special protection to the right of privacy. But because she was on less secure ground with the privacy argument (the right to privacy was so new that it was impossible to know whether the judges accepted it as a right, let alone as a specially protected right), she began to discuss the First Amendment right to abortion. She explained how the right of free association between a doctor and patient was impinged upon by the current abortion law. Doctors, for example, did not feel free to advise their patients on abortion.
It quickly became apparent to everyone present in the courtroom that the judges had no interest in pursuing the First Amendment as the source of the right to abortion. Judge Hughes interrupted Coffee to ask, “What First Amendment rights?” Judge Goldberg redirected the questioning, asking Coffee whether she thought the same argument that injunctive relief was required could be made if the Ninth Amendment were involved.
Although mention of the Ninth Amendment was somewhat surprising to her, Coffee seized the opportunity to reframe the argument around a concept in which the justices were apparently interested. “I don’t think it makes any difference in our case,” she replied, “because whether you say that the rights involved are First Amendment rights or Ninth Amendment rights, I feel they are so important that they deserve the special protection that has been accorded to First Amendment rights. In other words, they involve fundamental human freedoms, which I think recent cases have indicated are beginning to be given the same priority treatment that First Amendment rights have always been afforded.”
The court next turned its attention, as Coffee had known it would at some point during her argument, to whether any other remedy (such as remanding the case to a Texas state court) existed short of declaring the Texas abortion law unconstitutional. If so, the judges would be inclined not to rule and instead give the state a chance to fix its own law without federal interference.
Could Dr. Hallford have taken his case to a state court? Coffee acknowledged that he could have but said she did not think it was fair to make the rights of women to obtain abortion contingent on a doctor’s defense of himself in a criminal case. Was the law separable—that is, could it be rewritten by the state legislature or courts in such a way as to remove any unconstitutional portions? What if, for example, the section permitting abortions only to save a woman’s life were removed? Would that make the law more acceptable? Coffee insisted it would not, reminding the court that in any event this had not been the intent of the original framers of the law. She added, “I think the statute is so bad that the court is just really going to have to strike it all down. I don’t think it’s worth salvaging.”
To which Judge Goldberg responded: “You think sixty-three years of unconstitutionality should have worn everyone’s constitutional patience. Is that what you’re saying?”
“I think so,” Coffee answered. “I think the state of Texas had plenty of time to construe this statute, if it can be construed in a constitutional manner.” That ended the time allotted for her argument.
The spectators in the courtroom had grown restless during Coffee’s argument, although the judges and other lawyers had paid close attention to what she said. This impatience was not entirely due to the nature of her arguments, either. Despite her brilliant legal mind, Coffee was not a particularly effective or dramatic speaker. She had a distracted and somewhat disorganized way of speaking. Her diffidence was another barrier to understanding her presentation, and she looked worried. But the bottom line was that the topics she discussed were not glamorous or provocative. Important as they were to the outcome of the case, to the untrained legal ear they were little more than pedantic legal details.
Whitehill, for one, could not stop thinking how messy she looked. It bothered her that Coffee did not appear to have taken the time to comb her hair. Whitehill, who valued appearances, thought Coffee looked disheveled. (Indeed, Coffee might have looked even more disheveled had Fred Bruner, who accompanied her to the courthouse, not walked her into a drugstore and bought her a pair of hose so that she would not appear with a run in the ones she was wearing.)
The spectators, especially the women on the Dallas Committee, knew how important this case was, and frankly they had been hoping for a little more drama, or perhaps more flair in presenting the arguments, something that would make exciting reading in tomorrow’s newspapers and interest even more people in their cause. They were not disappointed when Weddington began to argue her half of the case.
Although less confident of her legal prowess than Coffee, Weddington was an excellent public speaker. Calm and serene once it was her turn to speak, she managed to sound expert—and self-assured. She began by announcing that her argument would cover the “justification which the state alleges for the state abortion statute, that is, the protection of the life of the child, and . . . whether or not there are substantial constitutional issues involved.”
Weddington continued: “I would like to draw the court’s attention to the fact that life is an ongoing process. It is almost impossible to define a point at which life begins or perhaps even at which life ends. Certainly life in its very general matter is present in the sperm, it’s present in the ova. This potential of life depends on a set of circumstances which must then occur.”
Her argument was one that reformers used increasingly when confronting those who claimed that human life was present from the moment of conception. Why limit the onset of human life to conception? Why not go back even further and say that it was present in every sperm and every ovum? Did people want to outlaw birth control because it destroyed potential life?
Although Weddington was prepared to cite several cases in which courts had found that fetuses did not have the legal rights of a person, she never got the chance. For the second time, Judge Goldberg asked counsel to address the issue of whether abortion could be based on a Ninth Amendment right, as well as whether the state had any compelling interest in regulating abortion. Did the state, for example, have any reason to require that all abortions be done in a hospital or that they all be certified by one or more physicians? He also asked Weddington whether she thought there should be differing standards for married versus single women.
Weddington agreed that health standards were involved and that nonlicensed medical personnel should not be permitted to do abortions, but she added: “I cannot see any justification for regulating the abortion when it is done by a doctor.” She also said she did not see how denying unmarried women, who, she noted, formed the majority of those requesting abortions could serve any compelling state interest.
Judge Goldberg asked if she knew whether there was any relationship between access to abortions and promiscuity. Weddington said there was none that she knew of.
He continued to press this point, asking whether she knew of any research on the subject, to which Weddington replied, “Not to my knowledge, other than the fact that [such young women] are already promiscuous when the statute is in effect, and in fact, these are some of the girls who need this right and who have the most socially compelling arguments why they should be allowed abortions—the young still in school, those unable to shoulder the responsibility of a child—these girls should not be put through the pregnancy and should be entitled to an abortion.” Weddington felt strongly about this issue, and it showed in her response; her voice took on an orator’s eloquence.
Goldberg next asked whether the fact that the state might have to pay for many of the abortions for young women should be a reason to deny them the right to abortion. It was a reasonable question in light of the fact that Texas shouldered one of the nation’s largest welfare rolls and that Medicaid payments for obstetrical care had recently been reduced in Texas. Weddington said she thought the state might have more of an interest in eliminating the welfare payments to support children after they were born.
Her argument concluded when Goldberg asked her whether she thought the Texas abortion statute was more vulnerable on the Ninth Amendment basis or on grounds of vagueness. Without hesitation she replied: “I believe it is more vulnerable on the Ninth Amendment basis.”
A large, impeccably tailored man with a gallant and somewhat imposing personality and years of experience in criminal courtrooms, Fred Bruner managed to control and shape his arguments more successfully than any of the other lawyers who came before the court that day. Determined to waste no time in turning the argument back around to his client’s interests, Bruner began by expressing his regret that Weddington found the law more vulnerable on the Ninth Amendment because he “was about to argue on the vagueness of the statute.”
With the court’s encouragement, he proceeded to do so: “It’s the position of Dr. Hallford . . . that not only is this language vague and hard to understand for the man of common intelligence, but even doctors themselves cannot interpret the language of the statute, and in Dr. Hallford’s affidavit, he states that even hospitals and doctors cannot determine what they should or shouldn’t do, what is permissible and what is not permissible under the language of this particular statute.” To further support his argument, Bruner cited several recent cases—Belous, Vuitch, and Babbitz—in which courts had overturned the law on grounds of vagueness.
In summary, Bruner addressed an issue that had concerned the justices throughout the arguments—namely, whether declaring the Texas law unconstitutional would permit anyone—even scurrilous, unskilled abortionists—to perform abortions. Unlike most states, Texas had no law restricting abortion only to licensed physicians, and the court had shown concern that overturning the law might mean anyone could perform abortions under any circumstances. Bruner declared: “I think the very fact that . . . this abortion law [is] on the books of Texas has driven women to [illegal abortion] in the state today, and that if the abortion law of the state of Texas were declared unconstitutional, it would give women the right, the constitutional right, to go to a doctor or to a qualified person who had the right surgical instruments and have this matter done at their wishes. . . .”
Throughout his testimony, but especially in his summary, Bruner had shown himself to be an adept criminal lawyer. Not only had he managed to reassure the judges about something that might prove to be a major stumbling block for them, the fact that their ruling would free anyone in the state of Texas to do abortions, he had also managed to end his argument on a small but meaningful note of drama.
What Merrill lacked of Bruner’s suavity he made up for in earnestness. His task was to attack the other major weakness in the Texas abortion law that could conceivably affect Hallford. Because of the way the Texas abortion law was written, the burden of proof was on the doctor charged with illegal abortion. The defendant had to prove he had not committed a crime; it was not up to the state to prove he had, as was usually the case in criminal prosecutions. Merrill argued that placing the burden of proof on the defendant was a clear violation of due process under the Fifth, Ninth, and Fourteenth amendments.
So concisely did he present his argument that he required less than the seven and a half minutes allotted to him. The justices listened carefully and did not interrupt Merrill once.
Plaintiffs’ counsel had completed their arguments, and it was now time for the attorney general, who was automatically a party to any suit that challenged the constitutionality of a state law, to defend the Texas abortion law. Despite months of delay on the state’s part and the fact that the D.A.’s office had done all the work, the attorney general’s office seemed ill-prepared for the task at hand.
The attorney general had not been surprised to hear that the abortion law was being challenged. His staff knew the abortion issue was ripe for a challenge and had expected some kind of legal action sooner or later. This did not mean, however, that the lawsuit was welcome.
The Texas attorney general’s staff was beleaguered with civil rights suits in the late 1960s. At times they averaged fifty-two cases per lawyer. The numerous civil rights cases were considered a thorn in their side because they took up so much time and manpower for what were deemed inconsequential reasons. One prisoner, for example, had managed to file seventeen separate lawsuits involving possible violations of his civil rights. And if prisoners were a problem, students were even worse. Across the nation they had torn up campuses and towns, and even in staid Austin mobs of students from the University of Texas had swarmed over the Capitol grounds. Lawyers from the attorney general’s office had stood at the windows of their seventh-story office and watched what they could only view as out-and-out (and, in their view, inexcusable) anarchy.
By the time Roe v. Wade was filed, though, the attorney general’s men were optimistic that the pendulum of public opinion was swinging back to a law-and-order stance. People were tired of having their courts tied up with frivolous civil rights challenges from long-haired kids, draft protestors, and other dissidents. No one understood what women had to be so unhappy about. As the sixties drew to a relatively quiet close, the attorney general’s office had gotten its second wind; they would be more than happy to take on anyone who wanted to challenge the state’s abortion laws. They were sure the case would be an easy victory for them.
The state could have decided not to respond to the challenge. It would have been a simple matter to let a law that was relatively unenforced anyway become officially defunct. When a woman had sued to establish her right to march with the Texas A & M band, the attorney general had declined to defend the law that kept her out of the band. But no one, at least no one in the attorney general’s office, thought legalizing abortion was as simple an issue as letting a woman march with the boys if that was what she wanted to do. Abortion involved life-and-death issues—specifically, the life of an innocent fetus that could not defend itself. No one was surprised when word came down from Attorney General Crawford Martin himself that the state would defend its abortion law.
Like all federal cases, Roe v. Wade fell under the auspices of the enforcement division, headed by Robert Flowers. Flowers turned the case over to Jay Floyd, his assistant chief, because he knew Floyd would recognize its importance. He had great respect for Floyd, not least because he believed Floyd to be one of the most meticulous lawyers he had ever known. Floyd’s pencil holder held perfectly sharpened pencils, and his files were color-coordinated. His desk drawers were organized, unheard of for an overworked assistant attorney general. A specialist in liquor law, Floyd had prepared a huge notebook, always on his desk, containing every law written in that field.
Each morning Floyd began work the same way, by moving the files of the cases he would be working on that day from a windowsill to his desk. As he checked each case’s progress, he moved the file back to the windowsill. If he had to recheck a case, he moved the file back to his desk and then back to the windowsill again. Floyd worked rapidly and rarely required assistance. He wrote his own briefs, composing them as he typed and rarely preparing more than one draft.
Flowers left his people alone once he had assigned a case, asking only to be updated on an informal basis; but Roe v. Wade intrigued him, and it seemed to have personally interested the chief, too. Attorney General Martin had told Flowers he thought not defending the abortion law would be like not defending the murder law. Besides, he was tired of people suing public servants like Henry Wade, who were only trying to do their jobs.
Flowers, too, had given the case considerable thought. He felt Roe v. Wade was an open-and-shut case, one the state could win easily. As far as he was concerned, from the moment of conception the chromosome structure was in place, the gene structure was in place, and life had begun. Any defense of the Texas abortion law would be based on the fact that the womb was food and shelter, just like a baby in its home. To destroy an infant in the womb was murder, the same as when a three-month-old infant were killed in its cradle.
One thing, Flowers knew, would prevent the state from using this defense: this view was religious or philosophical rather than legal. The law did not view abortion in this way. Flowers knew the state could not go into court and claim that abortion was murder for the simple reason that legally it was not. Neither Texas law nor, for that matter, the laws of any other state held that abortion was murder. It was always a lesser crime, usually manslaughter.
Flowers believed that a great number of those who opposed the legalization of abortion shared his view. If his assessment was correct, then there were many people out there who not only did not want abortion legalized, but would support a move to restrict it further. He thought the time was ripe to assert a claim on behalf of the fetus. If the state built its defense around the idea that abortion was murder in the moral sense, at least, Flowers believed people, including the judges who would hear the case, would understand and accept his argument regardless of how the Texas law was written. Once everyone agreed that abortion was a grave moral wrong, surely the Texas abortion law would stand.
Thus, Flowers was optimistic that the state would not only defend its abortion law successfully, but that it might even be tightened further as a result. If he could get a ruling that the law was designed to protect fetal life, Texas would have the toughest abortion law in the country.
Flowers had discussed his views on abortion with his boss, Attorney General Crawford Martin, who liked the idea and gave him the go-ahead. Floyd, a busy man, had no objections to being presented with a ready-made defense—one with which, as it happened, he agreed. He had not yet had time to talk with John Tolle, who was handling the case for the district attorney’s office, but he assumed the D.A.’s people would go along with this defense. Floyd could not spend too much time on the case, so he let Tolle do most of the work of preparing the defense. The two men exchanged a few cursory letters over the next few months but never met to coordinate their defense or work out a mutual strategy. They would be meeting for the first time when they presented the oral arguments in defense of the state.
Floyd was nervous when his turn came to argue. He had stood up earlier out of turn, because he had mistakenly thought it was his time to speak. Now he would have to begin his arguments with an apology, to be sure the justices understood that he had meant no harm by speaking out of order. Despite his nervousness, he was confident he could make short work of the case. Neither he nor anyone in the attorney general’s office could imagine that the court would seriously consider declaring the abortion law unconstitutional. Besides, there were serious jurisdictional problems with the case, such as whether Jane Roe or any woman had a right to sue for legalized abortion. After all, the law was not directed at them; no woman in Texas was ever party to an abortion suit, so she could not claim to have been injured by the law.
Floyd began by pointing out that it was the state’s position that the court had no reason even to hear this case since, as far as he could see, none of the plaintiffs had any standing to sue. He believed—the state was arguing—that the case was moot. None of the court papers had made any reference to how far along Roe was in her pregnancy, but since the suit had been filed in March and it was now the middle of May, assuming that the defendant had been at least a couple of months and possibly several months pregnant when the case was initiated, it now stood to reason that she was either no longer pregnant or was too far along in her pregnancy to undergo an abortion even if the court agreed she could have one. Her case presented no real controversy; there was nothing to litigate; in other words, the case was moot. As for the Does, their case had never presented any real controversy since, as far as he knew, Mary Doe was not pregnant, nor had she been when the case was filed. The original motion filed by her attorneys had made this clear. She and her husband therefore had no standing to sue.
This was the argument Coffee and Weddington had feared. It was the reason they had amended Roe v. Wade to a class-action suit. As plaintiffs in a class-action suit, Jane Roe and Mary Doe were suing not merely for themselves, but on behalf of all other women who might find themselves similarly situated—pregnant and in need of an abortion. Nevertheless, they waited nervously to hear how the justices would respond to Floyd.
Fortunately, his argument seemed to carry little weight with the court. Judge Goldberg reminded Floyd that some of the children involved in school desegregation cases had graduated from college by the time their cases were litigated. Did this mean that they were not entitled to attend desegregated schools? Judge Hughes indignantly asked: “What would give them standing in a case like this to test the constitutionality of this statute? Apparently you don’t think that anybody had standing.”
Coffee and Weddington breathed a sigh of relief. They had safely passed the hurdle that had prevented so many others from bringing abortion cases into court. Of course, the judges could always change their minds when they deliberated, but for the moment they did not appear receptive to the argument that the case was moot, that Roe or any other pregnant woman had no recourse in the courts simply because pregnancy was a self-terminating condition.
Sensing correctly that he had lost this round, Floyd moved on to the First Amendment issues, declaring that he failed to see how a right to abortion could be found anywhere in the constitution, but especially in the First Amendment.
Judge Goldberg quickly replied, “We agree with you on that.” But then he asked Floyd to address whatever constitutional grounds might be found in the Ninth Amendment and the issue of vagueness.
At that point Floyd’s defense began to unravel. He had not prepared to rebut the plaintiffs’ claim that abortion was constitutionally protected, so he pressed ahead with the only argument he had prepared—namely, that the state had a compelling interest in protecting the fetus. In doing so he made a major mistake, one that was probably fatal to his defense of the Texas abortion law. Floyd cited Belous, the case in which the California Supreme Court had ruled that the woman’s right to abortion was based on privacy; the Belous decision had been considered an unequivocal victory for pro-choice forces. Floyd continued: “Now, Your Honors, there have been many, many arguments advanced as to when an embryo becomes a human being. There have been religious groups that have joined in the controversy, and it’s my understanding, and I’m not setting forth the Catholic faith—”
Floyd’s point was lost on everyone except Goldberg, who interrupted to ask if Floyd was trying to say that the state’s compelling interest extended to the point of conception.
“That is correct,” Floyd answered.
“I don’t see how that’s getting you anywhere.”
“But the point is,” Floyd continued, “that the state’s interest—is that it may be a consideration of whether or not murder occurs, that is, if this embryo is considered a human being.”
Goldberg again tried to find out whether Floyd was arguing that an embryo should be considered a human being from the moment of conception.
“Yes, Your Honor,” he replied, and then he did something a lawyer should never do: he began to hedge on his defense. “Now I’m not advocating this, I’m saying there’s some controversy in regard to this, that at no matter what stage of pregnancy, the embryo is a human being.” Floyd continued, “There is controversy to that effect. Medical practitioners disagree, and speaking of medical advances, we have now reached a point, I think, where a medical practitioner can operate on an unborn child, perform surgery. The state must give consideration to these various interests and opinions in deciding whether or not it has an interest in the subject matter.”
Judge Goldberg responded, “Well, the state has asserted its compelling interest to the extent that it makes any abortion under any condition practically illegal.”
“Except to save the life of the mother,” Floyd added.
Judge Hughes, who could stand no more of the confusion, interrupted: “But don’t you know what that means? The case which you quoted held that [the law] was too vague and indefinite—the Belous case knocked the statute on that ground.”
“That is correct,” Floyd said, “on the right of privacy—there’s no question about that.”
“Well, then,” Hughes reiterated, “your case isn’t authority for your argument.”
“No, the Belous case—I’m not saying it’s authority, I’m getting to the right of privacy.”
Floyd went on to say that privacy meant only the right to be left alone and nothing more. It had nothing to do with abortion, in his view. He had obviously known where he was going with the Belous reference but had still made a mistake by relying on a case that did not ultimately support his view.
Judge Goldberg pounced on the word “privacy,” noting that in his view it was a bad word to use in this area. “But apparently everybody wants to use it. . . . I just know privacy won’t do, but I know what you are talking about.” He then tried unsuccessfully to pin Floyd down about whether a woman’s death had to be imminent for an abortion to be acceptable. Floyd declined to make what he viewed as an essentially medical judgment.
His time up, Floyd sat down. His argument had not been successful. It had been weak, and after the mistake of citing Belous, he had never recouped enough to save his defense of the Texas abortion law.
John Tolle was left with a touchy task: in fifteen minutes he had to pick up the pieces of his co-counsel’s shattered defense and build a solid case for the state. He had put considerable time and effort into the preparation of this case, and like Floyd, he believed that the state had a right to protect fetal life. Unlike Floyd, he had limited his examination of abortion to the purely legal issues. That he now planned to do the same thing with his oral argument would prove to be his greatest strength. Tolle’s argument would be the most intellectually enticing, if not ultimately the most persuasive, that would be heard in the courtroom that day.
He wasted no time disputing the plaintiffs’ right to sue, nor did he attempt to refute Weddington and Coffee’s arguments directly; rather, he tried to make the court see them in a different light. He began with the difficult issue of states’ rights. Noting that he did not disagree with Weddington’s statement that no one knows when life begins, he went on to say that even in the absence of answers to this difficult question, the state still had “a right to protect life . . . in whatever stage it may be in . . . and if there is no absolute fact as to when life occurs, then it becomes, I think, a legislative problem as to when they’re going to set an arbitrary time.”
Finally the state had scored a point. The idea that abortion was most legitimately a concern of the state and not the federal government had to have been on the minds of the judges that day. Throughout the 1960s states’ rights had become a highly controversial issue, particularly as the federal courts, following an example set by the Supreme Court, had proven increasingly open to expanding individuals’ civil rights, often at a cost to the states’ powers to regulate their affairs.
States’ right supporters maintained that changes in the social fabric of the nation should come from the individual states and not from the federal courts, which were seen as overstepping their powers when they ruled on matters such as the constitutionality of state laws. In contrast, those who led the drive to expand individual civil rights (and they were well aware that their best chance for success lay with the receptive federal courts) argued that letting each state establish its own guidelines on such important issues as voting, educational, and prisoners’ rights would result in a patchwork of laws that would vary from state to state and prove to be highly discriminatory. If Americans valued equal educational opportunities, then surely the only course of action was to protect that right for all citizens. And this was the task most effectively accomplished by the federal government, they argued. For example, it would not be possible, or moral, to desegregate the schools in some states but not in others. Often lost in the debate over states’ rights was the fact that the Constitution was designed to protect individuals from government tyranny, whether state or federally instituted, and that governments on all levels existed only to serve the people.
Nevertheless, the principle of states’ rights was part of the system of checks and balances that had been carefully woven into the Constitution, and it must, as an ideology, be respected. For over two centuries, therefore, the federal courts had challenged the authority of the states only rarely and then with the greatest caution. Several recent cases, in fact, had warned the federal government away from excessive interference in the affairs of the states. In 1959, in U.S. v. Livingston, the Supreme Court had written: “Regard for the interest and sovereignty of the state and reluctance to needlessly adjudicate constitutional issues may require a federal district court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction.” Several cases warned against the federal courts interfering in state criminal proceedings, for example, or from seeking to adjudicate a case that could be handled in a state court.
But the Livingston decision also contained a warning about the degree to which federal courts could justifiably abstain from state concerns, noting: “Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question put to it.” Not to do so might subject the litigants to unnecessary strife and expense.
Indeed, despite Tolle’s claim that the matter of abortion properly belonged in a state legislature, the three judges still thought they had a “federal” question to deal with—namely, whether or not the present Texas law denied women a basic constitutional right. Goldberg pointed out that protecting life at any stage of development seemed not to have been the intention of the framers of the Texas abortion law. Seeing room for a possible compromise, he asked Tolle, as he had Coffee and Weddington, whether striking the phrase “to save the life of the mother” might not make this law viable. Tolle replied, as they had, that he did not think this would be true to the original intention of the law. But where the two women had argued that the law could not be saved because it was so unconstitutional, Tolle said he felt the law was constitutional the way it was written, thereby eliminating any need to remove anything from it.
Tolle pressed harder, saying, “I believe that we’re talking about rights. I think that the most persuasive right that the plaintiffs urge, as was held in the Babbitz case, and all the cases refer to it quite heavily, is the right of privacy, for want of a better term, and there you get to the point where the state has to regulate conflicting rights—whether the state has got an interest in the life of the unborn child sufficient to regulate the woman’s right to privacy. This is a very difficult question, and I think that it is properly a legislative question.
“I don’t think the state has to have a law at all regulating abortion. I believe the field is such that it can regulate it constitutionally. I personally think, and I think the state’s position will be and is, that the right of the child to life is superior to that woman’s right to privacy.”
Tolle’s argument was as good a defense as could be offered of the state’s compelling interest in regulating abortion: the state had to balance two rights, that of the fetus to survive and that of the woman to privacy. In doing so, it could certainly find that the woman’s right to something called privacy^a word Tolle diminished simply by the way he said it—was inferior to that of the fetus to life.
The idea of balancing rights was not new. A well-known legal concept, it was what most people thought of when they thought about justice. Although rarely viewed in this way, all our liberties are gotten at the expense of an individual or group. Every time a court rules for something or someone, of necessity it also rules against something or someone else. The protection of the rights of the accused, for example, are often obtained at the expense of some of the public’s right to protection from possible criminals. The right to affirmative action for a minority is obtained at the expense of the majority. Even the right to sexual privacy that was guaranteed to individuals in the Griswold decision was obtained at the expense of society’s right to impose one overall moral standard on sexual behavior. Now Tolle was suggesting that the court could also balance the right of the fetus, or baby, as he referred to it, to survive against the right of the woman to privacy. The only thing surprising about Tolle’s defense was that it had not been used earlier.
States had previously tended to defend their restrictive abortion laws on grounds that the fetus ought to be granted the full legal rights of a person, but that was asking a lot of a judicial system that had never granted a fetus personhood and had actually denied it in virtually every case that had ever arisen. In most states, no death certificate was required for a fetus (Texas required one only after five months). Fetuses had never been permitted to claim benefits such as workmen’s compensation that were normally given to children.
No property or other inheritance rights were granted prior to live birth. Indeed, prior to live birth it was impossible to prove that a fetus was entitled to inherit anything. A widow impregnated by a man other than her husband could falsely claim to be pregnant by her husband in order to claim an inheritance for her child. The timing of the child’s birth would, of course, help to establish its inheritance claim.
No tort recovery had ever been made in Texas (or in most other states) as a result of injury to a fetus that was not born alive. In cases dating back to the fourteenth century, damages for the killing of a fetus were denied on grounds that the cause of death could not be proven. The fetus might have died from natural causes in utero five minutes prior to being assaulted, and in a case involving the death of a very young fetus, there would not be a body at all. As recently as 1970, the California Supreme Court, in Keeler v. Superior Court, found that a husband who assaulted his pregnant wife, thereby causing the death of their thirty-five-week-old fetus, was not guilty of murder. According to the court, a fetus was not considered a “human being, in the legal sense.” Its destruction involved a significantly lesser penalty. Even in the few recent wrongful death cases where parents had been awarded damages for stillborn or miscarried fetuses, several prominent jurists pointed out that what was really being compensated was the mental anguish of the parents. In the eyes of the law, a fetus was not defined as a legal person, nor had it been in hundreds of years of common-law history. It would be difficult for any court to reverse so long-standing a precedent.
Of course, Tolle was applying a bit of legal sophistry by arguing not that the fetus be granted the rights of personhood, but that its rights be balanced against those of the woman, since if the fetus’s rights were considered at all, it would in effect be granted de facto personhood. Tolle was wise not to make this the crux of his argument when he could achieve the same thing by a more round-about route using a widely recognized and respected legal tradition, that of balancing rights.
Unfortunately, since Tolle spoke last, Coffee and Weddington would have no chance to respond to his rather persuasive argument. They would not be able to refute his implication that women sought abortions frivolously or out of convenience, or that the decision to abort was one that could be or frequently was made lightly, all of which was not true for the vast majority of women. Even a woman who badly wanted an abortion, and could not be dissuaded from getting one, typically experienced some ambivalence over her decision.
Most women view abortion only as the lesser of several painful choices, less painful certainly than carrying a fetus for nine months and giving it up for adoption at birth, never to see it again or know its destiny, never to know whether it is cared for or loved. Adoption, so frequently suggested as an acceptable alternative to abortion, leaves most women with a lifelong heartache and is a solution that is not without its trauma to the child, too. Abortion is certainly less painful for many women than trying to rear a child who cannot be nourished emotionally or provided for materially. And for women who already have several children, it is often less painful than bringing another dependent into the world who will deprive the rest of their needs.
Coffee and Weddington would not be able to rebut Tolle’s argument by pointing out that when abortion was viewed in terms of the realities of daily life, privacy could hardly be considered a frivolous or insignificant right, that it was, rather, something that went to the heart of a woman’s entire existence. Much of the course of a woman’s life—not only at the moment she wanted an abortion, but over several decades and possibly for the rest of her life—hinged on her right to terminate a pregnancy when she needed to. Her right to decide when to have a child affected everything—her ability to mother the children she already had or would later have, to get an education, and to hold a job that might be her only means of economic support, as well as her marital happiness and overall social and emotional well-being.
Then, too, in any discussion of balancing rights, some consideration would have to be made of the numbers of women, mostly poor, who had died or been maimed physically and emotionally as a result of illegal abortions. Women would continue to be subject to the same fate if abortion remained illegal. If one lesson could be learned from the history of abortion throughout time and in all cultures, it was that outlawing abortion never prevented women from obtaining them; it merely sent them underground for them. The message, for those who chose to see it, was an important one. In this respect, the woman’s life also could be said quite literally to hang in the balance with regard to abortion.
Nor would the two lawyers have an opportunity to point out that while fetal life was indisputedly human, it was not the same kind of human life that existed in a fully developed, sentient, already born person. Antiabortionists liked to point out that human life began at the moment of conception, that from the second an ovum and spermatozoon combined, the genetic structure or framework for a human being was in place.
Bernard Nathanson, an early pro-choice activist-physician who ran New York City’s largest abortion clinic after that state legalized abortion, and who subsequently became a leading spokesperson for the antiabortion forces, took to stating after his conversion that the only difference between a one-month-old fetus and a nine-month-old fetus was weight and mass. Following his lead, antiabortion activists soon made the similarity between the developing fetus and a baby one of their most persuasive arguments against abortion, staunchly maintaining that a fetus was nothing more than a complete but smaller version of a baby, even though such thinking flies in the face of accepted biological evidence.
To understand why a fetus is not merely a small baby, one need only to consider the development of its organs, many of which are either absent or underdeveloped in the early stages or do not perform the same functions prior to birth that they will after birth. A fetus’s liver, to take just one example, initially produces blood, a function that will later be taken over by its bone marrow. No matter how much a fetus may resemble a baby, its lungs do not breathe for it, nor do its stomach, intestines, bladder, and bowel digest and excrete for it as they will do later. These functions are performed by the placenta, an organ formed in the woman’s uterus during pregnancy for the sole purpose of supporting the fetus.
Antiabortionists also made much of the fact that brain waves could be recorded at around eight weeks, as if that sign alone were incontrovertible proof that the fetus was a sentient being. But this analogy, too, is misleading. Before twenty-seven weeks, biologists tell us that brain function is a subcortical activity; that is to say, it is purely reflexive. Based on the best understandings of fetalogists and neonatologists, the young fetus does not feel pain, nor is it in any way a sentient being.
Rather than thinking of life as beginning at the moment of conception, biologists tend to think of it as existing on a continuum, an image that is appropriate since no one can say for sure when life begins and ends. It is true that a genetic “blueprint,” as biology professor Garrett Hardin preferred to call it, exists from the moment of conception, but much has to happen for that construction guide to become human enough to emerge from the mother’s womb a fully developed person.
One might even say that the odds are against its doing so. In its first week of development, before the blastocyte has implanted on the wall of the uterus, as much as 40 to 50 percent of all pregnancies are aborted spontaneously. Biologists agree that human life starts out as a single cell, develops into a multicellular unit, and only gradually travels down the road toward becoming a full human being, and they also agree that along the way there are many wrong turns that can be taken, developmentally speaking.
In hinting that the woman’s right to privacy had to do with convenience or selfish whims, Tolle took up a strand of thinking that antiabortionists would soon develop more fully—namely, that not only women’s minds but also their bodies were hostile to fetuses. Nathanson would describe the fetus as “an uneasy tenant” in the mother’s womb, a place that offered an “immunological sanctuary” from, among other things, the mother, “whose white blood cells mount an attack” to reject the fetus.
Like the earlier analogy of the fetus to a baby, this was an image that transposed (largely male, antiabortionist) wishful thinking into reality and, in this case, in doing so, attempted to deny the dynamic interaction between the woman’s entire being (not just her uterus) and the fetus that was crucial to the latter’s development. Modern science has dispensed with the concept that a fetus is merely an appendage of a woman, but it does not view it as a separate agent, either. Furthermore, even though a fetus becomes capable of survival outside a woman’s body several weeks before birth, as feminist historian Rosalind Petchesky has noted, its premature existence is neither easy nor normal. The undeniable fact is that the fetus is meant to finish developing inside a woman’s uterus until the moment of birth. Complex and complicated reasons exist for it to do so, all operating to the fetus’s benefit. Antiabortionist longings aside, modern biological science has yet to invent—and in fact is a long way from inventing—a laboratory substitute for the woman’s womb.
Beverly Wildung Harrison, a Christian feminist ethicist who has perhaps thought and written more cogently on the subject of ethical behavior toward the fetus than anyone else, points out that all such comparisons and analogies of a fetus to a baby, although seemingly bathed in scientific fact, are actually ethical and moral arguments clothed in scientific language. The fetus may be like a baby in some respects, but it is emphatically not a baby. Although antiabortionists like to point out that the fetus is now a medical patient, we must realize that however wonderful these advances in medical treatment are, it is still a fetus and not a human baby that is being treated. The idea that the fetus is in fact a baby simply does not hold up scientifically, nor does the suggestion that the womb is a hostile environment for the fetus. Despite this, the analogies are highly seductive, and many jurists and physicians have fallen under their sway.
Tolle’s argument actually hinted at more than it said, and had he carried it through to its logical conclusion, it is doubtful he would have concluded that the rights of the fetus were in fact more powerful than those of the woman. Few people of any religious or moral persuasion were truly willing to say that the rights of an unborn fetus that could not survive outside the womb were more valuable than those of a sentient, fully developed, adult woman.
Despite its inherent weakness legally and philosophically, Tolle’s argument carried great weight emotionally, if not in the courtroom, then among antiabortionists and those whom they sought to persuade—through any means—to their point of view. His argument foreshadowed one of the strongest messages the anti-abortion movement would present to the public. And his argument did not fall on deaf ears in the courtroom. Coffee and Weddington felt he had done some damage not only with the eloquence of his argument, but also because his was the last voice the court would hear on the subject. However, the two women remained optimistic that their view would ultimately prevail.
The proceedings were almost over, but first the intellectually indefatigable Justice Goldberg had one more question for the plaintiffs attorneys. What, he asked, would happen if only District Attorney Henry Wade were enjoined to stop prosecuting illegal abortionists? Would every other district attorney in the state also be prevented from enforcing the law, or would they be free to go ahead with prosecutions? Only Henry Wade had been mentioned in the court documents; none of the other district attorneys throughout the state had been cited.
Stunned at the implications of what she was hearing, Weddington asked Justice Goldberg to repeat the question. Then she answered: “It was my understanding that since the attorney general’s office had chosen to come in, and since they are now a party-defendant to the suit—”
Justice Goldberg interrupted: “Are they a party-defendent?”
“Well, I thought by—”
Judge Hughes jumped into the fray. “I don’t believe they have intervened.” Turning to Floyd, she asked, “Has the state intervened?”
Floyd jumped to his feet and practically shouted, “No!”
John Tolle also leapt up and said, “If the court please, I believe we can cite another example. In the Buchanan case, the court’s injunction ran against Henry Wade only, and I don’t think it binds anyone else.”
Goldberg turned back to Weddington and asked: “Do you have any response to that?”
She replied, “We goofed.”
It was another bad note on which to end the arguments.