LAUREN GROFF
Jane Roe’s nickname was Pixie.
Jane Roe’s real name was Norma McCorvey.
By the time Norma McCorvey became Jane Roe, she was only twenty-one, but she’d already had a tough life. Her parents had been alcoholics, and she’d been married at sixteen to an abusive husband. She had a five-year-old daughter who lived with her mother, and she had already given up her second child to adoption. In the summer of 1969, McCorvey was working for a carnival as a ticket seller in Georgia when, on the dark walk home to the women’s boarding house, she may have been raped. This was her original claim, but she later retracted it. Still, whatever happened, by the next day when she woke up, she found the carnival had gone on to the next place without her. She stayed in town and got work as a waitress, but soon the morning sickness from her unwanted pregnancy was too rough on her. She somehow made her way back to her mother’s in Texas where, when she tried to find an abortion provider, she could not, because abortions were illegal in Texas except to save a woman’s life.
Of course, in the 1960s, abortions were illegal nearly everywhere in the United States, and where they were legal, they were so heavily regulated by hospitals that only rich women and the doctors’ own mistresses and daughters could get one. A poor, uneducated, unconnected woman like Norma had little chance. For context, in the 1960s, there was no such thing as marital rape; women had no right to refuse sex to their husbands. A woman could be fired from her job for getting pregnant. A woman needed her husband’s permission to open a bank account. A woman was not allowed to apply for credit. Due to this prison built out of biology and misogyny and financial constriction, there were an estimated 1 million illegal abortions per year in the United States until 1973.
It should also be mentioned that abortions were illegal despite the fact that abortion has been a common method of birth control in every known human culture and despite the fact that the choice to abort had been a woman’s prerogative through centuries of English and American common law. Abortifacient herbs—rue, parsley, blue cohosh, tansy, pennyroyal—grew in most colonial kitchen gardens. Regulations on abortion began to appear only in the early nineteenth century, mostly as a power grab by doctors to eliminate midwives, barbers, and pharmacists from the doctors’ own medical turf. Restriction as a way of policing public morals hove into view in the late nineteenth and early twentieth centuries, and by then they had little to do with the stated claim that they were intended to protect the life of the mother: a sterile abortion was, and remains, far safer than childbirth itself.
Because she couldn’t get an abortion, Norma McCorvey, in desperation, met with an attorney to begin adoption procedures. When he found out she would have preferred the abortion she couldn’t find, he called in two attorneys he knew who were looking for a plaintiff. Their names were Sarah Weddington and Linda Coffee.
What is most startling about Roe v. Wade to a twenty-first-century observer is how young and green Weddington and Coffee were at the time. The women were not particularly friends, though they’d met as two out of the five women in their matriculating class at the University of Texas Law School. Weddington had graduated from law school at a mere twenty-one years old and was only twenty-three when she met Jane Roe. Linda Coffee was only twenty-six. Neither had ever argued a trial at court, and neither was able to swing an associate position in a big firm after graduation despite being at the top of their class. Weddington was told during her single interview that it was because the wives of the male lawyers didn’t want their husbands working with attractive female associates.
It’s true that Sarah Weddington was a former sorority girl with a broad Texas accent who wore her hyperfemininity as armor, with her porcelain face and long reddish-blonde hair and frilly clothes in pastels. But she was an excellent public speaker and nothing seemed to ruffle her. Linda Coffee was a diffident woman, so careless about her appearance that once a male attorney stopped her in the street to run into a drugstore to buy her pantyhose because if he didn’t, she was going to sit at court with a giant run in hers. Yet her humble demeanor hid a sharp legal mind and a hard-working soul.
Norma McCorvey was far from an ideal plaintiff due to her difficult past and her shifting story, but she was eager to join the case. The two lawyers gave her a pseudonym to protect her privacy and filed a lawsuit on her behalf against Henry Wade, the district attorney of Dallas County, and soon made it into a class-action lawsuit on behalf of all the women of Texas.
Their argument hinged on the Ninth and Fourteenth Amendments to the Constitution. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It is intentionally vague and reserves latent rights that are not listed in the Constitution to the people, including the right to privacy.
The Fourteenth Amendment reads in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Norma McCorvey had already had her baby by June 1970, when Sarah Weddington stood to argue the case before a three-judge panel of the US District Court in Texas. It was her first court appearance, but she had prepared deeply, and she and the women of Texas won. The judges decided unanimously that the Texas law was unconstitutional. Yet it was a pyrrhic victory, because the court also decided not to grant an injunction against enforcement of the unconstitutional law, which meant that nothing would materially change in Texas and that abortion providers could still be arrested.
By now, the women had strong supporters from groups like Planned Parenthood, NARAL, and the ACLU, all of whom helped to gather brilliant amicus curiae briefs when the women took the case on appeal to the Supreme Court. Weddington also had to endure the gaslighting and maneuvering of a man tangentially related to the case who tried to take away her right to argue before the Supreme Court. So few women had ever argued before the Court that it was clear a man, he said, should do it. Weddington politely asserted her right.
On the day of the oral arguments before the Supreme Court on December 13, 1971, the tiny hearing room was packed. Sarah Weddington, twenty-five years old, stood to make oral arguments for the second time in her life. She stared out at the six pinkish older white men—and the African American justice, Thurgood Marshall—who would decide whether women had the right to choose how and when they could procreate (the two vacant seats would be filled by Richard Nixon months later). She began to present her case. She was not brilliant, to be perfectly honest.
But the Texas assistant attorney general, Jay Floyd, who argued on behalf of the state, was worse. When he stood to make his oral arguments, he tried to make a joke: “Mr. Chief Justice, and may it please the Court, it’s an old joke, but when a man argues against two beautiful ladies like these, they’re going to have the last word.” The justices winced. Coffee and Weddington looked at him stonily. Floyd was thrown and never really recovered.
The decision took an immensely long time to write. Justice Harry Blackmun, a surprise advocate for liberalizing abortion laws and the most junior justice at the time, wrote the majority decision. He was painstaking and slow. Also, because his background was as the legal counsel at the Mayo Clinic, he wanted to understand the medicine involved in the case. He made the attorneys return and reargue the case once more, which went very poorly for the defense, because the male attorney was so certain the court would tip in his favor that he hadn’t bothered to prepare.
Finally, on January 2, 1973, the court issued its decision, 7–2, that abortion was a fundamental right under the Constitution. Norma McCorvey wept when she read about the decision in the newspaper.
That said, Roe v. Wade wasn’t an unambiguous success for proponents of access to abortion. Just seven years later, the Supreme Court upheld a law that allowed Congress to exclude coverage of abortion from the Medicaid program, thereby effectively preventing many poor women from utilizing this new constitutional right. And then, in 1992, while retaining the understanding that abortion is a constitutionally protected decision, the Court jettisoned Blackmun’s framework and replaced it with a standard that allowed states to impose many more barriers to a woman’s ability to get an abortion.
Sarah Weddington grew famous from the case: she became a two-time Texas state legislator, worked in the White House, and has a thriving public speaking career.
Linda Coffee went back to her bankruptcy firm and faded into obscurity, which suited her fine: her goal had been to expand abortion rights, not fame.
Norma McCorvey came out as a lesbian, then became a strict Catholic and repudiated her lesbianism, and, in a coup for antiabortion forces, vocally recanted her role in Roe v. Wade in the 1980s. She died in 2017. But for years before her change of heart, she’d been proud that she had been the wedge that opened the opportunity for other women—desperate women, poor women, women with health issues, women with too many children, women with no alternatives, women with careers, women whose birth control failed, women who’d been raped, women who were too young, women in school, women who were simply unready for the heavy burden of parenthood, women I know and love, women you know and love—to make the choice that Jane Roe hadn’t been allowed to make: to have autonomy over her own body, to take her own reproductive destiny in hand.