Into the Courts: Roe, Doe, and the Right to Abortion, 1969–1971
Judy Smith moved to Austin to enter the Ph.D. program in molecular biology at the University of Texas in the summer of 1968. An Oklahoma native who had grown up in Dallas and graduated from Brandeis University in Massachusetts in 1966, Judy had spent a year in the Peace Corps in West Africa and then some time in San Francisco before arriving in Austin.
The center of progressive student life at UT was The Rag, a two-year-old underground newspaper published by a free-floating group of former and present UT students, many of whom also belonged to the Austin chapter of SDS, Students for a Democratic Society. At The Rag Judy met Jim Wheelis, a twenty-six-year-old native of the Texas panhandle who had just started law school at UT; through her graduate work and SDS she met Victoria “Vic” Foe, another biology student, Barbara Hines, a graduate student in Latin American studies, and Beatrice Vogel, a Montana native with a Yale Ph.D. in biology and two preschool-age children.
In March 1969 SDS’s National Council met in Austin, and the disagreeably sexist behavior of SDS’s male national leaders, most of whom were housed with different members of the Austin chapter, was a defining experience for many of the Austin student activists. The outsiders’ treatment of the Austin women was “quite unpleasant” and “pretty alienating,” Judy Smith later explained, and Jim Wheelis described the national SDSers as “fairly offensive, sexist people.” Bea Vogel, who was somewhat older than her colleagues, recalled that “we were quite astonished to find out how sexist it was” and remembered that the experience “kind of crystalized” the feelings of several of the Austin women that sex and gender issues deserved more attention than they had yet received.
Not long after the SDS gathering some eight or ten of the Austin women—including Judy and her sister Linda Smith, Bea Vogel, Barbara Hines, Vic Foe, and Barbara Wuensch—met for the first of what became almost weekly conversations about gender and women’s roles. Sometime late that spring or early in the summer someone passed around several copies of an early version of Our Bodies, Our Selves, a handbook generated by a similar women’s group in Boston, and discussions about it soon led to extended conversations about issues of sex and reproduction. At least one member of the group had had the experience of performing a successful self-abortion seven years earlier so that she could continue her education, and in late April The Rag ran a brief story describing how Austin women seeking abortions could drive south and cross into Mexico. Doctors there offered abortions for under four hundred dollars, The Rag said, and the entire trip could be completed in less than a full day.1
In early July the UT administration, at the behest of several reactionary members of the university’s Board of Regents, banned the sale or distribution of The Rag on the UT campus, and petitioned a state court for an order requiring The Rag’s staff to comply with that directive. Several Rag staff members persuaded a thirty-five-year-old labor lawyer who had just moved to Austin, David R. Richards, to help them oppose the university’s effort, and on August 1 Richards filed suit in federal court to block UT’s move on the grounds that any such ban on the sale of a newspaper was a gross violation of the First Amendment’s constitutional protection of freedom of speech and of the press. Six weeks later a special three-judge federal court was named to hear The Rag’s case.2
Although that legal excitement was the major event of the summer for Austin’s student activist community, the women’s group centered around The Rag continued their discussions, and late in July Judy Smith published an initial essay in The Rag reflecting the group’s thoughts. “We in Women’s Liberation,” she explained, “deny any inherent differences between men and women and regard everyone as human beings with the same potential.” “All of us are trapped by the society that created our roles,” and those confines had to be torn down. “We are questioning the ideals of marriage and motherhood,” and in the process “the very society that has created these roles and values must also be questioned.” Several weeks later the group published a second piece in The Rag, entitled “Why Women’s Liberation?,” and explained that part of the answer was that “Women’s problems are rooted deep in society, and women’s liberation cannot be successful until much of what is wrong with society is corrected. The task is almost too great to be contemplated. Yet there is freedom in the striving.”3
But the women did not believe that articles in The Rag should be the only result of their discussions, and by the end of the summer there was a clear consensus that the group ought to undertake some tangible projects. “What do we do?” Judy Smith remembers them asking each other. They had known since the spring that birth control counseling and materials could prove difficult to obtain for unmarried female UT students, as some but not all physicians at the student health service rebuffed such requests and since the local Planned Parenthood refused to serve UT students. By early September there was general agreement that one tangible project they could undertake would be to establish a birth control information center in their tiny cubicle next to The Rag’s office, and they announced their plan both in the paper and at the group’s first general meeting of the fall semester on September 25. “The treatment of women as inferiors is all pervasive in our society,” Bea Vogel explained in The Rag, and through this project as well as others “the Women’s Liberation movement is dedicated to freeing women from the inferior role society has defined for her.”
On Wednesday evening October 1 Vic Foe hosted a meeting to begin setting up the birth control project, and within four weeks they were advertising the opening of the Women’s Liberation Birth Control Information Center next to The Rag office in the university YMCA, right across the street from the UT campus. Each weekday one or more volunteers from the group would staff the office from three to eight p.m. “Every woman has the right to control her own body, to decide when and if she wants a child,” their first announcement emphasized. “Here in Austin it is very hard to obtain birth control information if you are unmarried, especially if you are under 21,” and the counseling program hoped to meet this need.
The group did not initially intend for the birth control project to deal with the question of abortion, even though their first announcement stated that “By making abortions illegal, our society makes the abortion operation a punishment for sin.” However, it soon became clear, as each day’s volunteers fielded a half-dozen or more face-to-face inquiries from UT women, that abortion availability was a question the counseling project would have to confront. Several of the women were greatly concerned that any detectable involvement with abortion might bring them to the unfriendly attention of local police and prosecutors, and everyone appreciated that however surprisingly, abortions were not available in Austin, either from doctors or nondoctors. But the requests continued, and the issue of abortion was becoming more and more visible. Even Austin’s principal newspaper, the American-Statesman, which ignored the student activists almost entirely, featured a story in which the chairman of UT’s botany department, B. L. Turner, declared that “I believe in abortions. If the mother doesn’t want the child, that’s a good enough reason. The government ought to make it possible for the woman alone to make the decision.” The women in the counseling project whole-heartedly agreed, and not long after they first advertised the availability of birth control advice, they quietly but actively began to seek out dependable information about the availability of safe abortions and about whether they could then provide that knowledge to women who contacted them without fear of being criminally prosecuted.4
Everyone knew about the option of driving to Mexico, but no one had very much information about the skills, safety, and dependability of the Mexican providers, the most convenient of whom were located in the town of Piedras Negras, just across the border from Eagle Pass, Texas. Among the first people whom the women approached with their quandary was Bob Breihan, a Methodist minister who had been affiliated with the UT campus for more than two decades. Breihan had already heard Howard Moody speak about the Clergy Consultation Service network at a campus ministers conference in Michigan, and while he was quite willing to help with the women’s search for dependable providers, he was dubious about their belief that he, as a minister, would be immune from prosecution in ways that they would not. Breihan raised their query with a friend who was a criminal defense attorney, Perry Jones, and Jones soon passed along the name of a Hispanic woman in San Antonio who supposedly had a good reputation for a nondoctor. Some Austin referrals began to go there, others to a similar woman in Dallas, and then a few to an actual M.D. in a small town just north of Dallas, James Hubert Hallford, who had had at least a modest number of Austin patients even before the counseling project first came on the scene.
The Austin women’s quiet inquiries and very careful referral efforts had not progressed too far when a Piedras Negras provider with a medical degree, Dr. Leopoldo Bruno, made contact with them. Judy Smith and Vic Foe discussed the unusual development with Bob Breihan, who was similarly intrigued, especially by the relatively reasonable fee that had been quoted—three hundred fifty dollars. Smith and Foe took the initiative and drove down to Piedras Negras to speak with Bruno and have a look at his clinic, and came away quite favorably impressed. Now the Austin women and Breihan had a dependable, moderately priced and reasonably convenient provider; the remaining question was how certain could they be that discreet distribution of that information to women who asked for abortion referral assistance would not land one or more group members in the Austin city jail.5
One Saturday morning at a garage sale Judy Smith and Bea Vogel raised that issue with a young female lawyer, Sarah Weddington, whose husband Ron was a close friend and law school classmate of Judy’s friend Jim Wheelis: Would open and aboveboard provision of referral information leave the project volunteers vulnerable to arrest, as some of them feared. Weddington was not sure, but she agreed to look at the Texas antiabortion statutes and let them know. Judy had taken Sarah to one earlier meeting of the entire women’s group, but Sarah was “much straighter than we were,” one key participant later explained, and had not taken part in either the group’s many discussions or in the world of student activism centered around The Rag. Sarah’s husband Ron, a twenty-seven-year-old Texas native who had been drafted into the Army before returning to Austin to finish his undergraduate degree and then begin law school, was one of several additional plaintiffs who had lent his name to The Rag’s federal court suit against the UT Regents, but Sarah, who had graduated from the UT law school in August 1967, a year before the couple had married, had never become involved in campus political life. In part it was because she had had to hold down a variety of part-time jobs—as a secretary, insurance clerk, hospital librarian, and sorority house mother—in order to support herself while in law school, but far more so it was because Sarah’s previous life and church-centered upbringing had made her fundamentally middle-class in both style and attitude. As she explained a few years later, “I had never even been to a party where liquor was served until after I graduated from college.” Sarah’s resolutely proper demeanor inescapably separated her from many aspects of Austin’s student counterculture; as one close acquaintance at the time later put it, Sarah’s manner and outlook made her seem “more like my parents than like a peer.”6
But Sarah had had one experience—one she never shared with Judy or Bea or ever discussed with anyone else besides Ron for more than two decades—that made her much more responsive to their legal query than might otherwise have been the case. Two years earlier, in 1967, after she and Ron had become seriously involved during her final year of law school, Sarah had unexpectedly and distressingly discovered that she was pregnant. Neither she nor Ron had any desire to interrupt their schooling in order to become parents, and Sarah was mortified at the thought of having to tell her parents, a Methodist minister and a teacher, or her two younger siblings. While Sarah had never previously given much thought to abortion, she had no doubt about what they ought to do. Ron spoke with several acquaintances, made a call or two, and the following Friday morning they drove south toward Eagle Pass and the Mexican border. They checked in to an American motel and then walked across into Piedras Negras for a scheduled rendezvous with an unnamed man who led them to a small but clean clinic. The fee was four hundred dollars cash, but the staff was pleasant and the doctor friendly. Sarah was anesthetized during the abortion itself, and no difficulties or complications ensued. After a woozy evening in the Eagle Pass motel, she and Ron drove back to Austin the following day and resumed their normal schedules.
Sarah’s secret trip to Piedras Negras was perhaps the one extraordinary event in an otherwise unremarkable and successful early life. Only twenty-two years old at the time of her brief visit to Mexico, Sarah Ragle Weddington had grown up in a variety of small west Texas towns where her father had been a pastor at a succession of churches. A good enough student to have skipped both sixth and twelfth grades, Sarah graduated from Abilene High School when she was only sixteen and then from Abilene’s small McMurry College in December 1964. Having set her eyes on attending law school—in part because one college advisor told her that it would be far too difficult for a girl—Sarah moved to Austin in early 1965 and worked as a typist in the state legislature before beginning classes at the University of Texas Law School in June 1965. Only four other women were among the 120 law students who started that summer, and out of the law school’s total enrollment of some sixteen hundred students, only some forty were female. Despite having to juggle both her course work and the succession of part-time jobs, Sarah did well academically and, by taking classes straight through during three successive summers, she completed the normal schedule of three years’ work by the end of 1967.
With such an excellent academic record, Sarah found it deeply frustrating when not a single job offer resulted from her interviews with a variety of law firms. Female attorneys were still relatively rare in Texas in 1967, with sex discrimination open and explicit, but one of her favorite professors at the law school, John Sutton, who was also in charge of supervising preparation of a new Code of Professional Responsibility for the American Bar Association’s Committee to Reevaluate Ethical Standards, solved Sarah’s employment dilemma by offering her a multiyear position as his assistant.7
Sarah was well into her second year of work for Sutton when Judy and Bea posed their abortion law query to her at that Saturday morning garage sale in November 1969. The UT law library was in the same law school building where she worked for Sutton, but her review of the Texas statutes on abortion and on aiding and abetting gave Sarah no clear answer as to how criminally vulnerable the counseling project’s volunteers might be as a result of the group’s judicious abortion referral efforts. She reported her uncertain findings to Judy and several of the other women, and the project’s quiet efforts continued on as before. Toward the end of the month, on November 26, the special three-judge federal district court that had been named to handle The Rag’s case against the UT Regents assembled in Austin to hear oral arguments on several procedural matters. The Rag’s success in winning such an impressive-looking federal court proceeding in its battle against the UT administration was a subject of considerable talk within the Austin student activist community, and one morning either just before or just after that Wednesday hearing, Judy Smith raised the subject with Jim Wheelis at breakfast. He and his fellow law students, Judy commented, talked a lot about the federal courts. Making any headway on abortion legalization in state legislatures in Texas and elsewhere looked like a pretty dim prospect. What would it take, she asked, to bring an abortion suit much like The Rag’s. “Do you think it would work in the federal courts? What would we need?” Jim’s initial response specified the bare minimum: “About fifteen dollars and an attorney.” Judy replied, “What about Sarah?” Jim agreed that it was a possibility, and later that day Jim stuck his head into Sarah’s office at the law school: Judy and her colleagues had another abortion question for her. Several hours later Sarah met with Judy and Jim at the law school snack bar, and Judy quickly broached the idea she had first voiced to Jim at breakfast: a federal lawsuit ought to be filed challenging the constitutionality of the Texas antiabortion statute. Sarah did not dismiss the idea, but she was more than a little taken aback by Judy’s suggestion that she consider filing it. “No, you need someone older and with more experience,” Sarah told Judy. “You need somebody in a firm, with research and secretarial backup.” But Judy asked her to give the idea some further thought, and Sarah agreed.
As Judy and women’s group colleagues such as Barbara Hines talked about the possibilities, everyone agreed that Sarah was the only female attorney whom they knew who might be persuaded to file such a challenge, especially given how the Austin women’s liberation group had virtually no money for fees or expenses. Judy, Jim, and one or two of the others discussed the case idea again with Sarah one evening over dinner at Jim and Judy’s, and Sarah somewhat reluctantly agreed to look into pursuing it. Jim and Ron both suggested that she talk with one of their favorite and most approachable professors in the law school, Bernard “Bernie” Ward, about the federal court procedural hurdles that would have to be overcome, and then several days later, when Sarah was in Dallas, she realized that a former classmate from law school, Linda Coffee, who after graduation had gone on to a yearlong clerkship with U.S. District Judge Sarah T. Hughes, might also be a good source of advice and, given her background, might indeed be willing to file such a case herself.8
Linda and Sarah had been two of the five women who had entered UT law school together in the summer of 1965, and while they had sometimes studied together, they had not been particular friends nor had they been much in touch since graduating almost two years earlier. Linda like Sarah had been a lifelong academic standout, first at Woodrow Wilson High School in Dallas and then at Rice University in Houston. At age seventeen she had spent more than six months in New Zealand on an exchange program, and while a German major at Rice she had spent a summer in West Germany. A few years later Linda explained that she had decided to attend law school because “it just seemed intriguing,” but the small number of women at UT had made her experience somewhat discomforting; “I was always self-conscious,” she subsequently remembered. Linda had spent several months during law school doing legal aid work in Austin, and when she took the Texas bar exam in March 1968, she tied for the second highest score in the state. That same spring Linda’s mother had heard that Judge Hughes was looking for a new law clerk or two, and after Linda sent in a resume, Hughes immediately called her up.9
Linda began her one-year clerkship with Hughes in June 1968, and found the experience both educational and enjoyable. The Dallas federal courthouse was a small community of its own, with three district judges and one circuit judge in residence plus a customary population of court staffers, prosecutors, local attorneys and a few regular reporters from Dallas’s two main newspapers. Sarah Hughes was well-known in town from her twenty-six years as a state court judge prior to joining the federal bench in 1961; liberal U.S. Senator Ralph Yarborough had recommended Hughes for the appointment over her principal local competitor, Dallas County District Attorney Henry Wade. Barely five feet tall, Judge Hughes had won election to three terms in the Texas state legislature, starting in 1930, before joining the judiciary. Almost seventy-two years old when Linda Coffee became her law clerk, Hughes had graduated Phi Beta Kappa from Maryland’s Goucher College before getting her law degree from George Washington University by taking classes at night while working as a D.C. policewoman during the day. She and her husband George, who had died in 1964, had moved to Dallas in 1924, and Sarah Tilghman Hughes had immediately plunged into a lifelong career in law and politics. “We didn’t want any children,” she explained years later. “I never wanted the care of young children. I was interested in a career,” and no matter how rare women attorneys, let alone female legislators or elected state judges were in Texas in the 1930s and 1940s, Sarah Hughes persevered and generally prevailed. She lost one race for Congress and another for the state supreme court during her years on the state bench, but achieved minor national fame when her name was placed in nomination for the vice presidency at the 1952 Democratic National Convention. An outspoken proponent of women’s rights throughout her years in Texas politics and on the state bench, her elevation to the federal judiciary had only slightly cramped her style. Known to most people from the famous scene in which she had administered the oath of office to Lyndon B. Johnson on Air Force One on the afternoon of November 22, 1963, Sarah Hughes much preferred to be known for her advocacy of women’s rights and for the judicial outcomes she dispensed from the bench.10
Sarah Hughes was unquestionably a unique federal judge, and vastly more colorful than either of her district court colleagues in Dallas, William M. “Mac” Taylor and Chief Judge Joe Estes, but there was unanimous agreement around the Dallas federal courthouse that the building’s most remarkable and impressive character was Fifth Circuit Court of Appeals Judge Irving L. Goldberg, an energetic and outspoken man with a voice that two law clerks later described as having “the resonance of a tuba spiked with the twang and pitch of a banjo.” Born in 1906 in the east Texas town of Port Arthur, Irving Goldberg graduated from Harvard Law School in 1929 and then returned to his home state to practice law and take an active role in a wide range of Jewish organizations. Long-acquainted with Texas politicians such as Representative and later Senator Lyndon B. Johnson, Goldberg in 1950 had joined with several other longtime friends, including Robert Strauss, to found a law firm that was initially named Goldberg, Akin, Gump, Strauss and Hauer. Sixteen years later President Lyndon Johnson nominated Goldberg to a newly created seat on the Fifth Circuit, and within little more than two years, Irving Goldberg deservedly acquired a well-known reputation for being as vocal and dominating a courtroom presence as any member of the federal appellate bench.11
In May 1969, just as she was about to complete her clerkship with Sarah Hughes, Linda Coffee accepted a position with a small but attractive Dallas bankruptcy firm, Palmer and Palmer. That same month, one of her oldest friends, a young attorney whom she had known since childhood more than twenty years earlier when they had both attended Dallas’s Gaston Avenue Baptist Church, sought Linda’s advice and assistance with an unusual and—for 1969—truly novel declaratory judgment case he wanted to file in federal district court. Henry J. McCluskey, Jr., looked about as straight as a twenty-six-year-old Baptist graduate of Waco’s Baylor University and Baylor Law School should, but Henry had one client, Alvin L. Buchanan, who was openly and actively gay and whose efforts to find similarly inclined sexual partners had led to one arrest in a bathroom at Dallas’s Reverchon Park in February and another two months later in a department store restroom. Buchanan had been convicted in local trial courts for both offenses, and one jury had recommended five years’ imprisonment as appropriate punishment for consensual oral sex. Henry was appealing Buchanan’s convictions within the Texas courts, but he also wanted to file a federal case alleging that Texas’s nineteenth-century sodomy statute was unconstitutionally overbroad. Since the statute criminalized all acts of oral or anal sex, whether heterosexual or homosexual, and provided no exception for married couples who might otherwise be arrested if they happened to be caught committing such a crime, the law in light of Griswold and Griswold’s reverential celebration of marital privacy appeared to be particularly vulnerable to just such a constitutional challenge.
Linda enthusiastically encouraged Henry in his effort, and offered him a number of pointers. In late May McCluskey filed his initial complaint in Alvin L. Buchanan v. Charles Batchelor, Dallas’s chief of police, and by the end of the summer Fifth Circuit Chief Judge John R. Brown had named three of the Dallas-based jurists—Goldberg, Hughes, and Taylor—as the three-judge panel to hear McCluskey’s challenge to the constitutionality of the Texas statute. Three additional plaintiffs—a married couple complaining of their vulnerability under the statute, and a gay man alleging that his private, as distinct from public, sexual acts were similarly outlawed—were added to the case before the panel heard oral argument late that fall. By the time that Sarah Weddington first called Linda Coffee on December 3 to ask that she consider filing a federal case against the Texas abortion statute, Henry McCluskey’s parallel challenge to the sodomy law was under submission and awaiting decision by the three-judge panel.12
Weddington explained to Coffee that the idea of filing a constitutional test case had originated with the women’s group in Austin, and that their present assumption was that the case would be brought on behalf of the Austin group, if upon examination it looked reasonably certain that such a group—actively involved in encouraging and advising violators of the statute—would have sufficient legal standing to be acceptable plaintiffs for such a challenge. Coffee already knew about the California Supreme Court decision in Belous, and she responded eagerly to Weddington’s request that she consider bringing a Texas abortion case, so long as her colleagues at Palmer and Palmer had no objections. Linda sought and obtained their approval later that same day, and the next morning Coffee wrote to Weddington in Austin to accept the offer:
I am very enthusiastic about the possibility of your organization in Austin (I can’t remember what name you told me yesterday) bringing an action to challenge the Texas Abortion Statute. There are a few procedural points that I will need to check into, but at the present time I am reasonably sure that the organization would have the requisite standing to challenge the statute. I would appreciate it very much if you would bring the matter up
with the Austin group for its formal approval “as soon as possible,” Coffee suggested. “Would you consider being co-counsel in the event that a suit is actually filed?” she asked Weddington. “I have always found that it is a great deal more fun to work with someone on a law suit of this nature. If you are not at the present time admitted to practice before the Northern District of Texas,” the formal name of the federal district court in Dallas, “it will be a simple matter to have you so admitted sometime before any actual hearings are scheduled.” Palmer and Palmer had given her permission to proceed, Coffee said, and “I will be looking forward to hearing from you soon.”13
Weddington soon called with a hearty assent, and Coffee began to think about how to put together an actual case. Two principal questions loomed large. One major strategic consideration, Coffee quickly realized, was that while Dallas was indeed in the Northern District of Texas, where Sarah Hughes would be a likely presence on any three-judge panel, Austin was in a different district, the Western. That alone strongly suggested that they ought to proceed with a Dallas-area plaintiff rather than the Austin women’s group. Secondly, Coffee began seriously examining whether such a group would actually have adequate standing. She soon realized that there was no clear guarantee that it would, and Coffee and Weddington quickly agreed that they had better find one or more individual plaintiffs whose standing would be unchallengeable, such as a pregnant woman who wanted an abortion, in addition to any organizational plaintiff. Weddington explained the need to Judy Smith, and Judy and several other Austin volunteers broached the question with a few women who contacted the group seeking referral information, but it soon became clear that for virtually every woman who was seeking an abortion, their undesired pregnancy was “a part of their life they wanted over,” rather than prolonged in the interest of a court case. Linda and Sarah believed that they needed a woman who not only had an unwanted pregnancy, but a woman whose pregnancy would continue at least until the case was actually filed. Otherwise, if the plaintiff went ahead and actually had an abortion, the case might then turn out to be moot.
“I didn’t know how we would find” such a pregnant woman, Linda later explained. Perhaps if they went forward and simply filed on behalf of an organization, additional and better plaintiffs would come forward as a result of the initial publicity, just as had happened with Henry McCluskey’s sodomy law case. She discussed the problem with Henry, and mentioned her search to a number of other friends and at several informal gatherings. Christmas and then New Year’s passed without a clear solution presenting itself. Then in early January 1970 the Women’s Alliance of Dallas’s First Unitarian Church announced a January 13 meeting on abortion law change where two members of Dallas Planned Parenthood, Virginia Whitehill and Pat Cookston, would lead the discussion. The Women’s Alliance had been planning such a meeting since late September, soon after the Belous decision had been publicized, and at the January 13 session both Ginny Whitehill and Pat Cookston explained to the other women present how the subsequent Vuitch decision in D.C. was further evidence that fundamental abortion law change would likely come from the courts rather than from legislatures. One interested observer at the meeting was Dallas Times-Herald reporter Barbara Richardson, and the next day her story on the discussion appeared under a headline that was in the form of a question: “Answers Lie With Courts?”14
In the wake of Richardson’s story, two people who learned about the active interest of the Women’s Alliance in abortion law change made contact with one or another group member, and then with each other: Linda Coffee and Marsha King. Linda was happy to discover a preexisting Dallas group that could offer support for a court case and potentially help in locating one or more plaintiffs; Marsha King was passionately interested in the issue because of an extremely traumatic abortion experience that she had gone through less than two months earlier.
Marsha Diane Cooper King was twenty-six years old when she first met Linda Coffee and Ginny Whitehill. A native of Atlanta, where her mother was a longtime teacher in the public schools, Marsha had graduated from Emory University as a physics major in 1964 and had then gone on to earn a master’s degree in physics at Georgia Tech. An engineering job with General Dynamics had brought her to Fort Worth, Texas, just west of Dallas, where she had met and fallen in love with another General Dynamics employee, David Garth King, a native of Tyler, Texas, who had earned a marketing degree and then an MBA from Southern Methodist University in Dallas. Marsha and David were married in Fort Worth in July 1968, but in the summer of 1969, soon after Marsha had taken a new job, she began to experience vision problems, severe backaches, and erratic mood swings, including significant periods of depression. One of several doctors recommended that she switch from birth control pills to a diaphragm and spermicidal foam, and while her vision did normalize, in late October Marsha became pregnant. Confirmation of the pregnancy “was the worst possible news,” she later explained. “My feeling about the pregnancy was that a horrible cancer was growing in my body that would ruin my life.” Marsha was still taking a variety of medicines for both her back pain and her mood swings, and felt so sick that she could barely cope with her job. Neither she nor David believed they were ready to parent a child, and they immediately called a Mexico City abortion clinic they had heard about. Three days after her pregnancy was confirmed, Marsha flew to Mexico City and underwent a lengthy and painful procedure. When it finally was over she felt “filled with a feeling of joy and freedom,” with “relief and happiness.” Her back pain prevented her from getting much if any sleep, and on the plane back to Dallas she was so weak that the flight attendants gave her oxygen. The abortion had been successful but extremely stressful, and the intensity of her experience gave Marsha an acute interest in making safe abortions legally available right there in Texas.15
Soon after Linda Coffee first met Marsha King, Coffee’s Dallas abortion case prospects received a tremendous boost when Judges Goldberg, Hughes, and Taylor unanimously sustained Henry McCluskey’s constitutional privacy attack upon the Texas sodomy statute. Sarah Hughes’s opinion on behalf of the panel cited Griswold in holding that the Texas law was indeed unconstitutionally overbroad in that it “operates directly on an intimate relation of husband and wife.” Without speaking in any direct way to the issue of homosexual intimacies, the panel nonetheless ruled that traditional moral disapproval of sodomous sex acts “is not sufficient reason for the State to encroach upon the liberty of married persons in their private conduct.” Hughes noted how a 1968 ruling by the Seventh Circuit Court of Appeals, Cotner v. Henry, freeing from prison a man who had already served three years for the crime of having anal intercourse with his wife, had by implication already extended Griswold’s constitutional protection to such marital acts. The Supreme Court had not disturbed the Seventh Circuit’s ruling, and thus Hughes and her colleagues formally held that the similar Texas law was “void on its face for constitutional over--breadth insofar as it reaches the private, consensual acts of married couples.”16
Buchanan was a signal victory for Henry McCluskey, but most of Henry’s practice involved much more mundane matters such as arranging adoptions. Sometime in mid- or late January, either just before or just after Buchanan was decided, a young and somewhat marginal osteopath who was facing a federal insurance fraud indictment, Dr. Richard Allen Lane, sent McCluskey a pregnant young woman who had failed in her search for a safe and affordable abortion and was going to need adoption assistance with her unwanted pregnancy. Norma Nelson McCorvey was a tiny twenty-two-year-old when she first met Henry McCluskey. A high school dropout whose parents had divorced when she was thirteen, Norma Nelson was a sixteen-year-old carhop at a Dallas-Fort Worth drive-in when she met Elwood “Woody” McCorvey, a twenty-four-year-old twice-divorced sheet metal worker from Buffalo. Six weeks later they were married, and soon they were on the road to California, where Norma excitedly discovered she was pregnant. Her new husband, however, angrily denied responsibility and violently accused Norma of playing around. Bruised and frightened, Norma sold enough of her few possessions to get bus fare back to Dallas, where she got a job as a waitress in a lesbian bar. In May 1965 she gave birth to a daughter, Melissa.
Over the ensuing four years, Norma worked a succession of jobs in generally lesbian Dallas-area bars and found herself a female roommate. Norma’s mother, upset with Norma’s all but openly bisexual life-style, took charge of Melissa and moved to Louisiana, where she and her second husband gained formal custody. By the end of 1966 Norma was again pregnant—“every time I went to bed with a man I got pregnant,” she later observed. She did not want to keep the child, but the father did, and after giving birth at Dallas Osteopathic Hospital, where Dr. Frank J. Bradley had also delivered Melissa, Norma happily surrendered custody of her second daughter.
In the summer of 1969 Norma had a brief affair with an older man named Bill, whom Norma rather liked and who said his money came from successful gambling. Early that fall, however, Norma took a job as a ticket-seller with a traveling carnival, and a few weeks later, with the carnival in Florida, Norma realized that she once again was pregnant. Upset and distraught, Norma headed back to Dallas and tried to find a place to live. She went to see Dr. Bradley for a pregnancy test, which was indeed positive, and she immediately told Bradley that she did not want to give birth to another child. Bradley was “absolutely appalled” when he realized she wanted an abortion, Norma recalled years later, and she understood she would have to look elsewhere. She ended up at Dr. Lane’s office, where another woman in the waiting room, upon hearing Norma’s story, told her that she ought to tell the doctor that she had been raped, for that news might well make the difference. She took the advice and concocted an elaborate tale of being assaulted one night while working for the carnival, but Lane, like Bradley, told her he could not be of help; if she had five hundred dollars and could get herself to California or New York, he said, maybe she could succeed there. But Norma, whose utter lack of funds had forced her to move in with her father, could not imagine raising anywhere near that figure. Now perhaps almost three months pregnant, it might be getting a little too late in any event, and Lane gave her the name of an adoption attorney. Norma went to see the man and loathed him almost immediately. He asked her several suggestive and demeaning questions, and she quickly left. She pondered her options, and went to look at one place she had been told abortions were available, only to find it deserted. Finally she returned to Lane’s office, and he gave her the name of a second attorney to try: Henry McCluskey.
When Norma first saw McCluskey after an initial brief telephone conversation, she very quickly warmed to his awkward but friendly manner. He answered no when Norma asked if he knew of any possibilities for arranging an abortion, and their conversation turned to how he would handle the baby’s adoption, placing it with a good family in return for their paying all of Norma’s childbirth expenses. They agreed to be in touch, and either that day or perhaps the next Henry McCluskey phoned his old friend Linda Coffee to say that just like she had helped him with Buchanan, now it looked like he might be able to assist in her abortion case, for he had just met a young woman who was going to have to go forward with her unwanted pregnancy. Linda was delighted, and asked to meet her. Henry phoned Norma at her father’s apartment and told her that he had a female attorney friend whom he would like her to meet, that his friend wanted to talk with her about her belief that legal abortion ought to be available. A day or two later Henry McCluskey introduced Norma McCorvey to Linda Coffee, and Linda was immediately struck by how small—and how visibly pregnant—her potential test-case plaintiff looked. Linda explained to her the court case idea that she and Sarah had been developing, and Norma, her educational background notwithstanding, responded very enthusiastically. Linda stressed that being a plaintiff would not take much time, would not entail any costs, and almost certainly would not require any courtroom testimony or public identification. Linda emphasized that a lot of the details were not yet certain, and that her colleague from Austin would also want to meet and talk with Norma, but Norma was quite willing to take part. Linda swiftly called Sarah in Austin with the good news, and Sarah arranged to come up to Dallas a few days later so that the two attorneys together could have a further conversation with Norma.
Linda told both Sarah and Norma to meet her at a Colombo’s Pizza Parlor in the 5700 block of East Mockingbird Lane in northeast Dallas, just six blocks north of Linda’s apartment on McCommas Boulevard. Norma was still holding out some slight hope of actually getting an abortion, but both Linda and Sarah, conscious of their belief that they needed a still-pregnant plaintiff with whom to go to court, gently indicated to Norma that that seemed quite unlikely, especially since it looked to them that Norma was now probably more than four months pregnant. Norma made a brief reference to her rape story, much as she had to both Linda and Henry previously, but it was of little moment to either of the attorneys, for they were intent upon filing a full-scale attack upon the Texas abortion statute, not a case seeking therapeutic exceptions for rape victims. Norma was quite willing to sign on as a prospective plaintiff, and the dinner conversation broke up with both Linda and Sarah convinced that they now had at least the beginnings of an actual federal court case.17
Both attorneys fully appreciated that Norma’s highly unsettled life and high-strung, emotionally vulnerable personality meant that she might not prove to be the most stable or dependable of plaintiffs, and they agreed that Norma would have to be supplemented by one or more others. On January 27 both Linda and her new friend Marsha King went to the morning meeting of the Women’s Alliance at First Unitarian Church. One committee chair, Virginia Fielding, told the group that her members, who had been instrumental in sponsoring the abortion discussion two weeks earlier at which Ginny Whitehill and Pat Cookston had spoken, had scheduled a February 11 meeting aimed at launching a new and broader-gauge organization that would champion abortion law repeal. Then both Marsha and Linda addressed the group on the subject of the incipient federal court case, and each explicitly asked the Alliance to join the case as an organizational plaintiff and authorize Linda to represent them. A good deal of discussion ensued, and a consensus was reached that any formal decision should be put off until a subsequent meeting and perhaps a polling of the entire membership.
The February 11 meeting drew a varied group of about eighteen people, including Marsha and David King, Ginny Whitehill, and Barbara Richardson from the Times-Herald, but aside from agreeing to organize themselves as the Dallas Committee for the Study of Abortion (DCSA), those present had widely divergent opinions about what tangible actions the group should pursue aside from sponsoring some sort of public forum. As Linda Coffee and Sarah Weddington considered their plans, however, Linda’s increasing doubts about whether any organization would actually be accorded standing to challenge the Texas abortion statute led them to drop their idea of using the First Unitarian Women’s Alliance as a group plaintiff. Even before Linda’s first contact with Norma McCorvey, Marsha King had volunteered to serve as an anonymous plaintiff, and while Linda, and then Sarah, had put the idea aside on the grounds that Marsha was not currently pregnant, by mid-February Linda and Sarah had agreed that using both Marsha and her husband David as plaintiffs made far more sense, both with regard to possible standing and with regard to having a married couple who could invoke Griswold’s celebration of marital privacy, than trying to recruit the Unitarian women’s group.18
By late February Linda was beginning to sketch out the beginnings of a formal complaint both for Norma McCorvey, who would be called Jane Roe, and for David and Marsha King, who would be spoken of under the common legal sobriquet of John and Jane Doe. Linda was a bit uncertain about precisely what sort of motion to prepare to request appointment of a three-judge court, but on March 1 or 2 a courthouse reporter for the Times-Herald who had heard about Linda’s plans called and suggested that she might run an item on the upcoming suit even before it was actually filed. That comment prodded Linda into immediate action, and by the morning of March 3, doing her own typing, she had readied a three-page complaint on behalf of Norma McCorvey and a five-page one on behalf of David and Marsha King. They both asked the court for a declaratory judgment holding the Texas abortion statute facially unconstitutional and for a permanent injunction barring any further enforcement of it. Each of the two complaints named Dallas County District Attorney Henry Wade as the defendant, and both of them alleged that the plaintiffs could not afford to travel to other jurisdictions where abortions might be available. The first one stated that the Texas law infringed upon “Jane Roe’s” “right to safe and adequate medical advice pertaining to the decision of whether to carry a given pregnancy to term” and upon “the fundamental right of all women to choose whether to bear children.” It also alleged that the statute infringed upon “Roe’s” “right to privacy in the physician-patient relationship,” and upon “Roe’s” “right to life” as protected by the Fourteenth Amendment. The second complaint prepared on behalf of “John and Jane Doe” specified that the law encroached upon “plaintiffs’ right to marital privacy” and that fear of an unintended pregnancy without access to a legal abortion was “having a detrimental effect upon Plaintiffs’ marital happiness.” The complaint also, by way of implicit reference to the Kings’ involvement in the newly formed DCSA and to the work of the Austin volunteers, additionally alleged that the plaintiffs feared prosecution under the Texas law for any counseling or referral work they might take part in.
With Weddington in Austin and hence unavailable to review Coffee’s two documents, Linda put only her own name on the two complaints and at midmorning on March 3 went to the clerk’s office in the Dallas federal courthouse and paid thirty dollars from her own pocket—fifteen dollars apiece—to file both Roe v. Wade and Doe v. Wade. Both that evening’s Dallas Times-Herald and the next day’s Dallas Morning News ran front-page articles on the cases’ filing. The Times-Herald followed up with one story surveying the views of local doctors, none of whom were identified, and another which estimated that perhaps three thousand illegal abortions a year took place in Dallas, with prices ranging from one hundred fifty to one thousand dollars. Two days later the Times-Herald devoted a long editorial to Coffee’s challenge, and while the paper conceded that the existing law was “badly in need of an intelligent overhaul” and that therapeutic liberalization was “long overdue,” it nonetheless concluded that abortions should be available only under “tightly controlled conditions.” “We have no sympathy,” the Times-Herald said, “with the attempt of a married couple and of a single woman to get the existing Texas abortion law declared unconstitutional by a Dallas federal court.” Abortion “is too serious a matter to go unregulated and uncontrolled,” and while it should be available on individual mental health grounds, “there are, most assuredly, circumstances in which abortion is not at all justified,” such as “when it is undertaken for sheer caprice.” Coffee’s suit was also a mistake, the paper said, because the plaintiffs “are tossing an extremely sensitive and complex moral issue into the laps of a mere handful of individuals—the judges who are to decide the case.” Legislators, not jurists, should resolve the abortion law issue, the Times-Herald concluded.
Several days later Barbara Richardson essentially responded to her own newspaper’s editorial criticism of the law suits with a long story anonymously and sympathetically profiling Marsha and David King. Richardson characterized them as “a church-going, articulate young couple,” and described Marsha’s serious health problems and her Mexican abortion. Marsha was quoted as saying that “The biggest thing motivating us is … freedom of choice,” and that “we do feel the abortion law is unconstitutional.” David said that “We both felt a moral imperative to file the suit,” because “our personal moral and ethical codes were outraged by the law.” When legislative reform failed to occur, “we became convinced if redress could not be gotten there, we would turn to the courts.” More basically, however, David explained that “I have had strong convictions about abortions ever since I’ve been old enough and wise enough to consider it. I realized a long time ago the abortion laws were anachronistic and unnatural. We filed the suit anonymously to dramatize the plight of every woman capable of conceiving. We don’t really stand for two people who, because of our particular situation, found abortion necessary. We stand for everybody—for woman’s right to freedom of choice.”19
While Roe and Doe v. Wade had been on their several-month journey from Judy Smith’s initial suggestion to Linda Coffee’s actual filing, abortion repeal efforts in other states had been occurring at an even faster pace. Both Larry Lader’s NARAL circle and Alan Guttmacher’s group of doctors had pressed ahead with their efforts to set up large-scale, publicly visible abortion clinics in Washington and New York respectively. The D.C. situation remained highly unsettled, however, with the Justice Department appealing Judge Gesell’s Vuitch decision to the Supreme Court, and in New York many activists had been preoccupied with strategic disagreements over precisely what form of an abortion bill should be championed in the 1970 state legislature. One small group of activists ostensibly affiliated with NARAL, New Yorkers for Abortion Law Repeal, led principally by Lucinda Cisler and James Clapp, announced before the first of the year that they would oppose Connie Cook and Franz Leichter’s forthcoming repeal bill on the grounds that its requirement that legal abortions be performed by doctors was fundamentally unacceptable. Several New York NARAL members who vociferously disagreed with that rigidly absolutist stance responded by setting a new group, straightforwardly called the Committee for the Cook-Leichter Bill, to lobby in favor of the repeal measure. New York journalists estimated that there was “much stronger sentiment” than before in support of repeal, but one New York Times story noted that many legislators wanted to leave the entire issue to the courts, especially since the actual trial of Hall and its three companion cases was now scheduled for April 15. While Al Blumenthal had again introduced a reform bill, both he and Martin Ginsberg, who had spoken so effectively against reform a year earlier, were now among the three dozen official sponsors of the Cook-Leichter repeal bill.20
In mid- and late January there were several days of widely reported public depositions in the Hall and Abramowicz cases, with some witnesses, such as New York writer Susan Brownmiller, testifying about their own personal experiences with abortion. On January 25 the New York Times Magazine ran a major story by reporter Linda Greenhouse entitled “Constitutional Question: Is There a Right to Abortion?” and Greenhouse focused much of the piece on twenty-eight-year-old Roy Lucas, who she said “could properly be called the father of the new abortion” movement. Greenhouse noted how influential Lucas’s North Carolina Law Review article had become, and explained how in light of Griswold, for Lucas “a right to abortion is only a logical extension of the right to contraception.” She reported how Lucas’s opposing counsel in Hall, Joel Lewittes, was attempting to contest the relevance of Griswold by arguing that with abortion “we are no longer in the sacred precincts of the marital bedroom,” and she briefly mentioned the historical argument being put forth by Cyril Means, who somewhat oddly characterized himself as “a hopeless reactionary.” Greenhouse concluded the story with Assemblyman Blumenthal explaining that legislative reform was no longer his preeminent desire: “Repeal is the correct route now, and if the courts could solve the problem it would be both preferable and faster.”21
Greenhouse’s important essay stimulated similar but less notable stories, also highlighting Lucas, in publications ranging from Life magazine to the St. Louis Post-Dispatch. Everything was on track for the mid-April trial of the potentially decisive Hall suit, but Hall himself was beginning to get extremely cold feet about Alan Guttmacher’s abortion clinic plan. In early February he warned his colleagues that Guttmacher’s idea was “unnecessarily reckless,” but one week later Guttmacher, Harriet Pilpel, and New York County Medical Society president Carl Goldmark met privately at Goldmark’s apartment with Manhattan District Attorney Frank Hogan to gauge how he would respond to such a clinic. Hogan said that while he would welcome such a test of the existing New York abortion law, once the facility received any publicity a grand jury investigation would begin and indictments of whomever was performing the abortions would be likely. As Pilpel recorded it, Guttmacher responded by asking “if he could not be the guinea pig instead of young doctors who would be doing the abortions, and Hogan indicated very clearly that he would not ‘take Dr. Guttmacher on.’” Hogan said he personally had not found Belous at all persuasive in its statutory vagueness holding, and he expected that the U.S. Supreme Court would avoid any definitive ruling on abortion. He “indicated strong sympathy for what we [are] trying to do,” Pilpel recounted, “and said he was hopeful that possibly the legislature would clear up the situation itself.” Guttmacher and Goldmark had already scheduled another meeting of likely medical supporters, but Louis M. Hellman, one of New York’s most prominent doctors and a fellow plaintiff in Hall, was so upset about the continued clinic planning that he angrily resigned as ASA’s board chairman. Opening such a facility might harm their chances in court and would certainly “polarize opposition that now lies dormant.” Such a step would also “certainly have an adverse effect upon the legislature,” where liberalization proponents had received a very unexpected boost from conservative state senate majority leader Earl W. Brydges. Guttmacher pulled back in the face of his friends’ opposition, and similar clinic aspirations on the part of Clergy Consultation Service coordinator Howard Moody likewise foundered when no physician other than Lader’s friend Bernie Nathanson proved willing to contemplate possible arrest.22
Roy Lucas was putting the finishing touches on a 164-page brief for the three-judge court in Hall and had also been enlisted to write the response to the Justice Department’s petition seeking Supreme Court review and reversal of Gesell’s decision in Vuitch. Lucas and others assumed that it was indeed very likely that the high court would hear Vuitch, but the Court’s action in two other notable and relevant cases had failed to send any clear message as to what might be in the offing.23 First, on January 12, to almost everyone’s surprise, the high court with only William O. Douglas dissenting, had refused to hear Bill Baird’s appeal of his Massachusetts conviction. Even Baird’s prosecutor, Joseph R. Nolan, told reporters that he had expected the Supreme Court to hear the appeal and void Baird’s sentence for having handed out the packages of contraceptive foam following his lecture, but now Baird was looking at the unexpected likelihood of actually serving his three-month jail sentence. Illness prevented Baird’s immediate incarceration, and his volunteer attorney, Joseph Balliro, filed a habeas corpus petition in federal district court seeking to block Baird’s actual jailing, but in the absence of action by U.S. District Judge Anthony J. Julian, Baird on Friday, February 20, was forced to surrender himself to Sheriff Thomas Eisenstadt at Boston’s Charles Street jail. One week later Julian finally heard oral argument on Balliro’s petition, but three more weeks passed before Julian formally denied it in an opinion that explicitly endorsed the earlier 4 to 3 Massachusetts Supreme Judicial Court affirmation of the state’s narrowly amended anticontraception statute. “Baird’s crime,” an angry Boston Globe editorialized, “was that he preached aloud what millions practice in private,” and “if he belongs in jail, so does a large part of the Massachusetts population.” Julian’s long-delayed decision, however, finally allowed Balliro to appeal the denial to the First Circuit Court of Appeals, which acted almost immediately to grant the request and release Baird from jail pending a full consideration of his appeal. Baird had served thirty-five days for his supposed violation of the Massachusetts statute, but the circuit court explicitly volunteered that “we find it difficult to think that the appeal lacks merit.”24
Far less puzzling than the Supreme Court’s apparent disinterest in Baird was its February 24 denial of California’s petition that it review the state Supreme Court’s decision in Belous. The justices gave little if any consideration to the state’s defense of its now-obsolete, pre-1967 law, and in California itself, just like in New York, there were more and more signs that support for reform had now evolved into a widespread preference for repeal. In conservative Orange County a municipal court judge called the 1967 reform statute unconstitutional while dismissing four abortion charges that had been filed against a local physician, and Norma Zarky and Zad Leavy continued to consider the possibility of filing a Hall-like federal court suit against the 1967 law. Some California repeal proponents were still entertaining the idea of sponsoring an initiative that would result in a statewide popular vote on abortion, but virtually everyone believed that one or another court case would resolve the entire question more quickly and more surely. Less visibly but just as importantly, evidence was also mounting that the actual availability of “therapeutic” abortions on mental health grounds was becoming more and more liberal with each passing month. The efforts of Charles Munger and CCTA to convince doctors that Belous had opened the door to far-reaching, practical liberalization were clearly succeeding, and while one young doctor, John Shriver Gwynne, succeeded in a well-advertised effort to get himself arrested for publicly operating an abortion clinic, a highly permissive trend was rapidly emerging. Another municipal court judge reviewing an abortion charge against a northern California physician followed the lead of his Orange County colleague, and a San Diego physician, surveying the changing standards of hospital abortion-approval committees, frankly concluded that “the present climate is one in which ‘abortion on request’ is effectively being practiced.”25
While the idea of a popular referendum was put aside by the California activists, in Washington state just such a proposal was approved by the state legislature with the support of liberalization proponents. Some national activists had been horrified when they learned of the Washington strategy, and both New York’s Bob Hall and Colorado’s Dick Lamm wrote to Marilyn Ward, the top lobbyist for the measure, to warn of the tremendous nationwide damage that liberalization efforts would suffer should such a popular vote result in defeat. Hall termed the plan “terribly dangerous,” especially in light of some poll results that suggested a close outcome, and asked that Ward and chief legislative sponsor Joel Pritchard choose some other course. One or more test cases ought to reach the Supreme Court by the fall, and while a November referendum victory would of course be wonderful, a defeat “could seriously jeopardize the entire court action.” Hall warned that such a vote might well mobilize strong Catholic opposition, and Lamm asked them to ponder the national consequences of a loss, for “There is the old saying that the Supreme Court follows the election returns.” Within the Washington legislature, however, a referendum repeal measure was passable, whereas simple legislative repeal was not, and the Washington activists pushed ahead. On January 27 the state house approved such a measure on a vote of 60 to 36, and three days later the state senate, after adding a three-month residency requirement and a sixteen-weeks-of-pregnancy ceiling, passed the bill by a margin of 25 to 23. Liberalization proponents shelved their previous plans to institute a court case, and began charting a campaign strategy for the November 3 vote.26
Washington was far from the only state where liberalization proponents made a major legislative push during the early months of 1970. In South Carolina a therapeutic reform law was enacted without drawing any national attention, and in Vermont a reform bill passed the state house but was voted down in the state senate. The Massachusetts house defeated a liberalization measure by the overwhelming margin of 184 to 32, and an Iowa repeal bill failed to emerge from committee. The Arizona house approved a repeal measure that opponents then blocked from reaching the senate floor, and in Michigan an effort to pass either a repeal bill or a reform measure ran aground despite editorial backing for repeal from the Detroit Free Press and extensive public support.27 Thus the first state to enact a repeal law more definitive than the Washington referendum measure became Hawaii, where state Senator Vincent Yano, the Roman Catholic father of ten who in 1969 had blocked the passage of a reform bill so as to give the subject further study, stunningly emerged as a new champion of legislative repeal.
The key person in helping Vincent Yano become a sponsor of abortion law repeal was Joan Eames Hayes, a Radcliffe graduate and mother of three who had moved to Honolulu with her family in 1968 and quickly become legislative chairman of the local chapter of the American Association of University Women (AAUW). Hayes had testified in favor of the reform bill in April of 1969, but as she read and thought more about the issue over the following few months, she quickly became an advocate of repeal. Senator Yano also did a good deal of reading in the course of the summer, and was particularly impressed by Robert Drinan’s Roman Catholic argument that repeal was preferable to reform. Yano told Hayes that he would like to know what Hawaii’s doctors actually thought, and with the backing of the Hawaii Medical Association, which had endorsed reform two years earlier, University of Hawaii public health school professor Roy G. Smith undertook a mail questionnaire of the state’s eight hundred doctors. Hayes had also been told by Republican Senator Percy Mirikitani of Manoa Valley that legislators would have to see evidence of actual constituent support for such a change in order for it to be enacted, and in early September 1969 Hayes organized a major public forum on the subject of abortion law change. Much to almost everyone’s surprise, Senator Yano used the occasion to announce that he would introduce a repeal bill in the legislature come January. Several weeks later Governor John A. Burns, also a Catholic, indicated that he too saw repeal as preferable to reform, and in late October the state’s newspapers reported that Professor Smith’s poll of Hawaii doctors had found 96 percent supported some form of liberalization. Both the Hawaii AFL-CIO and then the Hawaii Chamber of Commerce also publicly endorsed repeal, and while the state’s Roman Catholic hierarchy began speaking out in opposition to any prospective change, Yano’s explanation that he supported repeal while personally opposing the act of abortion severely undercut the church’s efforts. The Honolulu Star-Bulletin energetically backed repeal, and a clear consensus soon emerged that repeal was an eminently reasonable position backed by a wide range of thoughtful and respectable individuals and organizations.
In early February of 1970 a two-day senate committee hearing on Yano’s repeal bill drew sixty witnesses who spoke in favor, including one Catholic nun, and only eighteen opponents, all of whom were Roman Catholic. Many legislators were particularly impressed by the affirmative testimony of doctors, and also by Professor Smith’s. The comments of one witness from the Hawaii Women’s Liberation Front, however, prompted one prorepeal committee member to ask the young woman whether she was hoping to help the repeal cause or hurt it, and as two careful students of the Hawaii campaign later observed, “the incident demonstrated vividly the importance of the repeal campaign’s conservative and dignified approach.” The Roman Catholic Bishop of Hawaii, John Scanlan, requested a private meeting with legislators that took place two days after the hearing but with little effect, and on February 9 the committee sent the repeal bill to the senate floor with a report voicing Yano’s Drinan-like explanation of what repeal actually represented: “Your Committee’s position for repeal is NOT legalization but rather that we choose not to control or regulate this matter by law and further that we neither approve nor disapprove of abortion.” The very next day the senate took up Yano’s bill and after a restrained debate passed the measure on a vote of 17 to 7.
A Yano rival blocked immediate endorsement of the senate bill by the state house, and in subsequent conference committee negotiations Yano was forced to accept first a limitation that all abortions take place in hospitals, then a ninety-day residency requirement, and finally a restriction that abortions could be performed only prior to fetal viability, i.e., the point at which a “fetus can exist individually outside of the mother’s womb.” On February 20 the house approved that significantly amended version of Yano’s bill by a vote of 31 to 20, and four days later the senate adopted it on a tally of 15 to 9.
Faced with actual legislative approval of a repeal bill, devoutly Catholic Governor Burns now hesitated over what to do. Burns had ten working days in which he could either sign or veto the measure; if he did neither, the bill would become law even without his signature. Halfway through that ten-day period Burns met with Hayes and other repeal supporters and told them how he still remembered having seen victims of ineptly performed illegal abortions years earlier when he was a young Honolulu policeman. On March 10, his final day of decision, Burns had his staff prepare both a veto message and a statement explaining why he had allowed the measure to become law; after a teary-eyed conversation with a similarly ambivalent reporter, Burns sat alone until midnight and the next day released a seven-page explanation of why he had let the repeal bill become law. His decision “reflects my best judgment as Governor,” and “not the private and personal whim of John A. Burns.” “My reputation has been unfairly and seriously attacked,” Burns complained, “by a number of my fellow Roman Catholics who do not appear to understand precisely the separate roles of State authority and Church authority.” Personally, Burns said, he believed that individual human lives did begin at biological conception. Hence, “I could not in good conscience condone what the … bill permits by signing it into law. On the other hand, I do consider the abortion question as a matter involving individual conscience.”28
Hawaii’s first-in-the-nation enactment of a law allowing female state residents to choose to end an early or midterm unwanted pregnancy drew widespread attention. Both Newsweek and Time magazines ran stories on the action, and the New York Times heralded it as a reflection of “the revolutionary change in public attitudes toward abortion.” But most proponents of repeal remained more oriented toward litigation than toward legislative change, and within days of the Hawaii action a three-judge federal court sitting in Milwaukee issued a unanimous opinion holding Wisconsin’s traditional antiabortion statute unconstitutional, a decision that potentially could be the most significant abortion ruling to date.29
The Milwaukee opinion, by U.S. District Judges John W. Reynolds and Myron L. Gordon and Circuit Judge—and former Illinois Governor—Otto Kerner, stemmed from an effort by a local doctor, Sidney G. Babbitz, to block his upcoming state court trial on a criminal abortion charge being prosecuted by Milwaukee County District Attorney E. Michael McCann. Judge Reynolds three months earlier had rejected Dr. Babbitz’s petition for a temporary restraining order to halt the prosecution, but had approved his request that a special three-judge court consider his substantive constitutional attack on the Wisconsin statute. Suburban Milwaukee housewife Edith Rein, the chairman and founder of the very small, three-year-old Wisconsin Committee to Legalize Abortion, which had quietly provided referral advice for some time, had heard of Babbitz long before his 1969 arrest. A Minnesota native and mother of two, Rein had first gotten interested in abortion liberalization after seeing a subsequent showing of the 1965 CBS television documentary, “Abortion and the Law.” She cheerfully acknowledged to local reporters that being a repeal advocate in heavily Catholic Milwaukee was a challenging task, but Rein emphasized that “I want my daughters to grow up in a world where women have the right to decide their own reproduction.”30
After Babbitz initiated his federal court petition, Rein admitted privately to national activists that “we have unhappy reports on him, and most of us avoid sending people to him.” Nonetheless, Rein explained, given Wisconsin’s hopeless legislative prospects for even a reform bill, she was very happy to have the opportunity to mount a constitutional attack on the state’s antiabortion statute that Babbitz’s federal court move provided. Thanks to Milwaukee attorney Clifford K. Meldman, Rein’s Wisconsin Committee submitted an impressive, Griswold-oriented amicus brief to the three-judge panel in advance of Babbitz’s January 23 hearing. Griswold’s right of marital privacy included “the right of the woman to decide when, or whether, she shall bear children,” Meldman contended, and “the denial of the right of an abortion is thus inconsistent with the undenied right to use contraceptives.” Rein herself was “very optimistic” after observing the questions that the three jurists put to the opposing counsel at the January 23 hearing, and when the panel’s decision was publicly released on March 5, just two days after Roe and Doe v. Wade had been filed in Dallas, the holding in Babbitz v. McCann undeniably offered an even clearer articulation of a constitutionally protected right to choose abortion than had been voiced in Belous or Vuitch.
Unlike California’s Justice Peters or Washington’s Judge Gesell, the Milwaukee federal court panel expressly declined to rely even in part on the notion that traditional antiabortion laws were so vaguely worded as to offer no constitutionally adequate statutory notice to doctors. Instead, the panel said, the Supreme Court’s interpretation of the Ninth Amendment in Griswold “compels our conclusion that the state of Wisconsin may not … deprive a woman of her private decision whether to bear her unquickened child,” a nineteenth-century concept that distinguished the point at which a woman first detected fetal movement and which had been incorporated in Wisconsin’s initial 1858 antiabortion law that made only postquickening abortions a crime. “There is no topic more closely interwoven with the intimacy of the home and marriage than that which relates to the conception and bearing of progeny.” The panel cited retired Supreme Court Justice Tom C. Clark’s law review endorsement of applying Griswold to abortion, and said that while a state did have an identifiable interest in protecting unborn fetuses, “a balancing of the relevant interests” nonetheless compelled a decision that “a woman’s right to refuse to carry an embryo during the early months of pregnancy may not be invaded by the state” without some compelling interest. “When measured against the claimed ‘rights’ of an embryo of four months or less, we hold that the mother’s right transcends that of such an embryo,” and a mother “has the right to determine whether to carry or reject an embryo that has not quickened.”31
The very same day that Babbitz was issued in Milwaukee, Roy Lucas and his New Jersey colleague Dick Samuel filed a declaratory judgment suit in federal court in Newark that Lucas presumed would become the primary non-New York counterpart to Hall. Featuring seven doctors and two organizations among a grand total of some thirteen plaintiffs, Young Women’s Christian Association of Princeton v. George A. Kugler, New Jersey’s attorney general, was very much a cross-Hudson duplicate of Hall. New Jersey like Wisconsin was a state where even a therapeutic reform bill stood virtually no chance of legislative approval, and Lucas had long envisioned New Jersey as his secondary locus for a case that could go directly from a special three-judge panel decision right to a final ruling in the U.S. Supreme Court. Griswold v. Connecticut, he stressed to the panel in his 135-page brief on the merits, “is not an isolated decision confined to its facts, but is one in a continuing line of decisions involving various aspects of personal privacy and family autonomy.”32
Similarly, YWCA like Babbitz was far from the only case joining Hall and the Texas duo as new federal court abortion suits. In Illinois a federal judge rejected a request for a temporary restraining order prohibiting enforcement of the state antiabortion statute against a doctor who had been requested to perform an abortion on a pregnant sixteen-year-old rape victim, but three days later the Seventh Circuit Court of Appeals rescinded that rejection. Another new case was quietly filed in Indiana, and in Michigan, where several attorneys had considered starting a federal action, a state trial court judge declared Michigan’s antiabortion statute unconstitutional in dismissing a criminal abortion charge pending against a physician. Citing Belous and Vuitch, Judge Clarence A. Reid held that the commonly worded exception provided by Michigan’s statute—allowing only those abortions “necessary to preserve the life” of the woman—was unconstitutionally vague. He also concluded that the law “infringes on the right of privacy in the physician-patient relationship” and that “the woman has a right to privacy in matters relating to marriage, family, and sex.” One week later a South Dakota trial court judge, Clarence P. Cooper, issued an extremely similar decision holding that state’s antiabortion law unconstitutional and dismissing a criminal charge against Rapid City physician H. Benjamin Munson. Invoking Babbitz as well as Belous and Vuitch, Cooper declared that the South Dakota statute “interferes with private conduct without serving any vital interests of society.”33
Potentially far more important than those public trial court rulings was the wholly private consideration the U.S. Supreme Court was giving to the Justice Department’s appeal of Judge Gesell’s voiding of the D.C. abortion law in Vuitch. U.S. Solicitor General Erwin Griswold—no relation to Estelle—had told the high court in his initial petition in early February that Gesell had erred in holding that the crucial statutory exception language, allowing abortions “necessary for the preservation of the mother’s life or health,” was unconstitutionally vague. While the law might have to be construed so as to absolve any doctor who performed an abortion in a good faith belief that a health threat did exist, the law should also be read to require at least some case-by-case application of medical judgment, Griswold said. “The unconditional availability of abortions, unrelated to medical justification,” would be contrary to Congress’s intent in enacting a restrictive statute, and “without ambiguity” the law could be applied against doctors whom a judge or jury decided had not exercised any case-by-case “medical judgment at all.”
Both Roy Lucas, whom Larry Lader had introduced to Vuitch, and Joseph L. Nellis, an experienced Washington litigator, had been brought in to supersede Vuitch’s original attorney, Joseph Sitnick, in defending the Supreme Court appeal. Lucas prepared a lengthy submission invoking a wide range of arguments to support the contention that Gesell’s decision was “so manifestly correct as not to warrant further argument before it is affirmed by this Court.” Everyone realized full well that such a summary affirmance was extremely unlikely, and while Justice John M. Harlan’s clerk observed in summarizing the appeal that Judge Gesell had “made a fairly strong case for his ruling,” Harlan along with fellow justices William J. Brennan and particularly Potter Stewart were initially concerned with a far more abstruse question, namely whether Gesell’s decision was eligible for direct appeal to the Supreme Court or whether the government first had to take its case to the U.S. Court of Appeals for the District of Columbia.
When the justices discussed Vuitch at their private conference on Friday, March 27, they reached quick agreement that Harlan and Stewart’s concern that the appeal might well belong in the circuit court merited serious attention and that both the government and Vuitch’s attorneys should be asked to address the issue in supplementary filings. On March 31 the court’s chief clerk sent just such a letter to the opposing parties, requesting additional submissions by April 14, and unsurprisingly both Griswold’s office and Vuitch’s lawyers reiterated their previous positions that the appeal was indeed within the Supreme Court’s jurisdiction. At a subsequent private conference on April 23 the justices decided, with only Stewart and newly confirmed Chief Justice Warren E. Burger disagreeing, that further debate over the jurisdictional issue should be postponed until the Court actually heard the case sometime that coming fall or winter. On April 27 the Court formally announced that step, and with reporters interpreting the move as a clear sign that a decision in Vuitch thus probably would take place sometime in early 1971, major newspapers such as the New York Times and the Washington Post gave front-page coverage to the Court’s seemingly mundane action. Eight weeks later, however, in a move that received no journalistic attention but was seen as extremely significant by interested attorneys, the Court at Harlan’s behest expressly propounded three questions, all concerning the jurisdictional status of the appeal, for the opposing parties to address in their subsequent briefs.34
To thoughtful attorneys if not to journalists, the Supreme Court’s series of steps, starting with the March 31 letter, strongly suggested that the Court might very well be intending to dispose of Vuitch on one or another jurisdictional issue rather than use the case to say anything substantive about the constitutional status of antiabortion laws. As of early April that seemed to further increase the already substantial likelihood that Hall, scheduled for trial on April 15, would indeed become the first case in which the high court would frontally address the constitutionality of abortion statutes. Then, however, with virtually no advance warning, all prior expectations concerning how repeal efforts would progress were suddenly and totally upended by the surprising outcome of the 1970 legislative effort in New York.
As of mid-March, repeal proponents in the New York legislature had been openly divided over the strange question of whether conservative, Roman Catholic senate majority leader Earl Brydges’s support of a repeal bill was somehow sincere or was instead an elaborate strategy aimed at torpedoing any possible liberalization measure. Repeal sponsor Connie Cook, who had discussed repeal provisions at some length with Brydges’s aide Don Zimmerman, was uncertain yet open-minded, but even after a senate committee approved Brydges’s own repeal bill for floor action, many proponents continued to believe that Brydges was opposed to any liberalization and was bringing forward a repeal bill, instead of a reform one, only because he felt certain that repeal could not win on the floor. “It’s a hoax, a conspiracy by the archenemy of reform,” angry Queens Democrat Seymour Thaler told reporters. One week later, however, with well-respected Newburgh Republican D. Clinton Dominick leading the way, the New York state senate voted in favor of abortion law repeal by 31 to 26 after an emotional, five-hour debate. Majority leader Brydges did indeed vote against the measure, and some onlookers thought he was stunned by its surprise passage, but afterward Brydges again insisted that his goal was to see the best possible bill become law and that a twenty-fourth week of pregnancy ceiling ought to be added to the senate-passed measure for all abortions except those where a woman’s life was at risk. With grudging support from repeal proponents, the state assembly committee that received the senate bill did exactly that, and on March 30 the amended bill went to the assembly floor.
Both supporters and opponents knew that the final tally, on which the bill had to receive 76 votes in order to pass, would go one way or the other by the narrowest of margins. An eight-hour debate stretched long into the night, with “some of the most dramatic anti-abortion speeches,” Cook later recalled, being “made by men who told me privately that of course I was right, that they were very glad when they could get their daughter or their lover an abortion.” Late in the evening, two supporters of the bill, in line with legislative tradition, left word of their votes with the clerk and departed. When the final roll was called, however, Assembly Speaker Perry Duryea, a longtime liberalization supporter who had promised Cook that he himself would if necessary provide the crucial seventy-sixth vote despite the standard custom that the speaker did not vote, ruled that the two absent members’ votes would not be counted. That left the affirmative tally at seventy-three, three short of what was needed. Cook immediately made the necessary parliamentary move to preserve an opportunity for another vote on the bill one week later, and amidst a variety of recriminations the already intense lobbying of assembly members escalated still further.
“No issue in recent years has resulted in the degree of bitterness and emotion” within the legislature that the 1970 abortion repeal debates had produced, the New York Times reported. Several Catholic legislators from New York City who had voted for the bill on that initial roll call let their colleagues know that powerful church pressure meant that they would have to vote no on the second tally, but proponents also knew they would pick up the votes of a black Buffalo assemblyman who had missed the first vote on account of a “headache” and a female Roman Catholic member whose family had been the target of Catholic opponents. Cook and her supporters also had to contend with well-advertised and sometimes vituperative opposition to the repeal bill, and especially to the twenty-four-week ceiling, from Cindy Cisler of New Yorkers for Abortion Law Repeal. Cisler and her sidekick Jim Clapp were so convinced that the Hall case would result in a complete voiding of New York’s existing abortion statute that they vociferously argued that such an upcoming triumph in the courts would be totally preferable to the middling step forward that they thought the pending repeal bill represented. Asked about Cisler years later, Cook explained that “for a while there I thought we were going to lose the bill because of her activities.”
The New York Times predicted that the April 9 roll call would be “a toss-up,” but the unflappable Connie Cook quietly yet firmly told reporters that “it will pass.” What Cook knew that they did not was that one assemblyman, a Jewish Democrat from a traditionally Republican district adjacent to Cook’s own, had privately told her that despite his no vote on the first tally, he—and his family—would not allow himself to be the vote that killed the bill. “He said,” Cook later recalled, “‘If it’s one vote away, then you have my vote.’”
That knowledge made Cook considerably more optimistic than her supporters when the assembly roll began to be called after four hours of debate on April 9. Her upstate neighbor voted no when his turn came, and at the end of the roll call the number of yes votes stood at seventy-four—one vote shy, given Speaker Duryea’s pledge to be the seventy-sixth if it would be determinative. As the realization of the repeal bill’s defeat began to sweep the assembly floor and gallery, Cook’s obscure friend, fifty-nine-year-old Auburn Assemblyman George M. Michaels, a Brooklyn Law School graduate and a World War II Marine Corps veteran, rose to his feet and struggled to get Duryea’s attention. Gradually the chamber began to quiet as people understood what Michaels was about to do. “I realize, Mr. Speaker, that I am terminating my political career, but I cannot in good conscience sit here and allow my vote to be the one that defeats this bill. I ask that my vote be changed from ‘no’ to ‘yes.’” As the tally of yeas thus rose to seventy-five, Perry Duryea cast his vote as the seventy-sixth, and abortion repeal dramatically—and tearfully—passed the New York state assembly.35
The following day the New York state senate, after a relatively subdued debate that nonetheless featured majority leader Brydges reading the imaginary autobiography of a soon-to-be-aborted fetus, again approved the measure on a vote of 31 to 26. The bill then went to the desk of Republican Governor Nelson Rockefeller, who signed it into law on April 11. Scheduled to take effect on July 1, the New York measure, unlike the earlier one in Hawaii, included no state residency requirement and no provision specifying that abortions had to take place in hospitals. Repeal proponents such as Alan Guttmacher quickly began to warn that New York, and especially New York City, might be all but inundated by a nationwide flood of women seeking to terminate unwanted pregnancies once the magic date arrived, and hasty discussions got underway as to what sort of specialized clinic facilities could be established and what size caseloads existing hospitals would be willing to bear.36
One very important casualty of the remarkable New York legislative victory was Roy Lucas’s potential landmark court case of Hall v. Lefkowitz, which was effectively mooted by the legislative repeal of the statute whose constitutionality it had challenged. Lucas without regrets turned his attention toward the similar New Jersey action, and three days after Rockefeller’s signing of the New York bill a declaratory judgment action challenging the constitutionality of Oregon’s reform statute was filed in Portland by Betty Roberts, who as a state senator had sponsored a 1969 repeal bill, and her husband and fellow attorney, Keith Skelton.37 Similar evidence of growing support for repeal was visible all across the country, and Robert F. Drinan, whose earlier writings had proven far more influential than many observers yet realized, published another widely visible essay arguing the moral preferability of repeal over reform measures. Drinan also asserted that the Catholic hierarchy should speak with restraint on the subject, and forcefully repeated his prior criticism of what he termed “inappropriate intrusions in a pluralistic society” by ecclesiastical officials who wrongly assume that they “can pronounce a moral and uniform position” for the church “on a legal-political question.” The very defensive stance of liberalization opponents was explicitly reflected in an April 22 statement by the National Conference of Catholic Bishops that decried the passage of the New York law and lamely observed that “there has been a radical turn of events during this past year.” One bishop, seemingly in accord with Drinan’s advice, told a reporter that the Conference was “concerned only with a statement, not political action,” and another, who had supervised preparation of the resolution, expressly volunteered that “We have no desire to effect a legislative program” and “would recognize existing legislation.”38
The state of Virginia approved a modest reform bill on almost the same day that the New York repeal measure attained final passage, but the most heated southern legislative struggle of 1970 took place in Georgia, where many of the same activists who had played significant roles in the 1968 passage of that state’s reform bill mounted an all-out attack on their own prior handiwork in the hope of winning legislative passage of a repeal measure. In the fall of 1969, Alan Bonser, the young, English-born attorney and financial services executive who had first created Georgia Citizens for Hospital Abortions (GCHA) back in 1967, brought the small group back together to begin organizing a 1970 repeal drive. Along with two Emory University Medical School doctors, James L. Waters and W. Newton Long, and Emory University Presbyterian chaplain J. Emmett Herndon, an active member of the clergy referral network, Bonser had been talking publicly of the need for repeal since midsummer.
One newcomer to Atlanta and the Emory community who saw an announcement of Bonser’s first fall meeting and went was Judith Bourne, a Washington state native and trained nurse who had arrived in town just weeks earlier with her husband Peter, a physician whose father was a prominent member of the Emory faculty. Judith was aware of illegal abortion’s human toll from when she previously had taught nursing in California during Peter’s medical residency, and in the fall of 1969, having arrived in Atlanta too late to obtain an academic year teaching post, she was the one member of GCHA’s small band of repealers who had both the willingness and the time to serve as the group’s legislative chairman for the upcoming session.39
Early in December GCHA sponsored a public forum on abortion law change, with Judith, whom the Atlanta Constitution told its readers was “an attractive brunette,” stressing that the group wanted complete repeal, not further reform. She and Bonser recruited two well-respected legislators, Killian Townsend and Grace Towns Hamilton, the first black woman ever to serve in the Georgia legislature, to sponsor the 1970 repeal bill, and Judith and a GCHA colleague, Annis Pratt, circulated a “Dear Friend” letter encouraging people to contact their own legislators and pointing out that “the women of Georgia are deprived of their constitutional rights as long as the state may dictate in any way what they do about the privacy and dignity of their own reproductive life.” “Abortion is a private matter,” Judith emphasized in an early January interview with the Atlanta Journal. “The government does not have the right to insist that a woman bear a child against her will,” and passage of a repeal bill would “make abortion a private decision between a woman and her doctor.” In addition, the complicated and time-consuming application and review procedure mandated by the 1968 reform statute for every woman seeking a legal, therapeutic abortion “involves so much red tape that it’s really ineffective,” Judith explained. Furthermore, virtually all hospitals that did perform therapeutic abortions pursuant to the 1968 law, such as Atlanta’s large Grady Memorial Hospital, which was primarily staffed by Emory-affiliated doctors, imposed a firm but unspoken monthly quota on the maximum number of abortions—six in the case of Grady—that would be approved, regardless of applicants’ individual situations.
On Monday, January 19, the Georgia repeal proponents suffered a stunning emotional loss when Alan Bonser went to the Regency Hyatt House and committed suicide by jumping from the twenty-first floor of the hotel’s famous interior lobby. With the legislative hearing on GCHA’s repeal bill only two weeks away, Judith Bourne was named the group’s new chairman, and with editorial support from the Atlanta Constitution, the repealers mounted a major effort at the February 3 hearing. Much to their surprise, immediately after the hearing the committee in a secret ballot voted 6 to 2 to table the measure, and the sponsors quickly vowed that an attempt to revive it would take place the following week.40
Judith Bourne responded to the committee vote by publicly announcing that GCHA would seek donations to help Georgia women travel out of state to obtain medical abortions. An Associated Press photo of Judith, accompanied by an explanatory caption, ran in any number of national newspapers, including the Dallas Morning News, and the Bournes soon found their Atlanta home phone ringing off the hook with callers wanting referral information. Early the following week legislators reiterated to Atlanta reporters that the repeal bill almost certainly would be revived once a hospitalization requirement and a provision compelling married women to obtain their husband’s consent were both added. However, on February 11 the repeal proponents received yet another unpleasant legislative surprise when the committee, again by secret ballot, killed the repeal bill on an 8 to 6 tally despite the fact that seven members claimed to have voted yes. Committee chairman Virgil Smith, who would have broken such a tie vote by supporting the measure, announced that the bill now would not be revived, and a “profoundly disappointed” Judith Bourne told Atlanta journalists that GCHA would now “strongly consider” filing a court case.41
Over the previous several months Judith had been reading a considerable range of materials concerning abortion, but even more than twenty years later she could immediately describe the two items that had had far and away the greatest impact on her thinking: Judge Gesell’s November 1969 decision in Vuitch and Roy Lucas’s landmark 1968 law review article on the constitutional infirmity of antiabortion statutes. As yet no one else had actually moved to file such a challenge against one of the 1967–1968 reform laws, but in the immediate wake of the February 11 legislative defeat, Judy Bourne wasted no time at all in starting to put together just such a federal case.
Through her husband Peter, Judy already knew Agnes “Ruste” Kitfield, the executive director of the American Civil Liberties Union of Georgia, and within a day or two of the legislative loss Judy called Kitfield to seek her advice and help in finding one or more interested attorneys. Ruste Kitfield was a central figure in the small world of liberal Atlanta activists, and she, like many others, already respected Judy Bourne as “a dynamo of energy and intelligence.” Kitfield immediately thought of several women lawyers whom she believed would probably be willing and able to help mount such a case. Just a week or so earlier at one or another party she had chatted with one of Atlanta’s more experienced female lawyers, thirty-six-year-old Margie Pitts Hames, a former partner in the firm of Fisher and Phillips. Hames had gone on leave from the firm just before the birth of her first child in December 1968, and had not returned. Now she was eight months pregnant with a second child, and Kitfield had gotten a clear impression that Hames might well have some available time.
Hence Margie Hames was the first person Ruste Kitfield called after getting Judy Bourne’s request, and her initial question to Hames was direct but generic: “She asked me would I be interested in doing a women’s rights case.” Hames had replied that “‘That would be fun,’” but reminded Kitfield that since she was almost nine months pregnant, “‘I can’t do anything for a while.’” Kitfield responded that all they needed to do at the moment was begin planning it, and Hames willingly agreed to participate. Kitfield said she would recruit several other women lawyers to also take part, and she made successive calls to several female attorneys who worked for one or the other of two analogous legal groups, the Atlanta Legal Aid Society, which provided representation for poor people in the city proper, and Georgia Legal Services, which performed a similar role for needy individuals in the rest of the state.
Sometime in late February an initial abortion case planning meeting took place at Ruste Kitfield’s ACLU of Georgia office in downtown Atlanta. Judy Bourne and Kitfield took the initial lead in explaining what they hoped to pursue; in addition to Margie Hames the all-female group also included Tobiane Schwartz, a supervisory attorney with Atlanta Legal Aid, and Elizabeth Roediger Rindskopf, who worked at the Emory Neighborhood Law Office, a legal services affiliate adjoining Atlanta’s leading university. Kitfield’s trio of women lawyers came from a variety of backgrounds. Hames, a Tennessee native, had graduated from Vanderbilt Law School in 1961 after spending her first five post-high school years working as a legal secretary in Murfreesboro. Women law students had been something of a rarity at conservative Vanderbilt in the late 1950s; years later Hames would credit the supportive friendship of a successful upperclassman, Fred Graham, as being crucial to her first-year survival. After practicing for a year in Tennessee, Margie’s marriage to fellow attorney William Hames brought her to Atlanta and Fisher and Phillips in 1962.
Almost exactly the same age as Margie Hames, Tobi Schwartz was originally from West Virginia, where she had graduated from law school in 1959. She had spent seven of her first ten years of law practice in West Virginia as well, and had come to Atlanta to join Atlanta Legal Aid only a year earlier. Elizabeth Rindskopf, whom Kitfield knew through Elizabeth’s husband Peter, who had been practicing civil rights law in Atlanta since 1965, had graduated from the University of Michigan Law School in 1968. She had joined the Emory legal services office that same year, and already had accumulated an unusual amount of federal court experience.
The lawyers met two or three times with Bourne and Kitfield during late February and early March, and on at least one occasion two additional female attorneys, Betty Kehrer from Georgia Legal Services, and private practitioner Orinda Evans, also joined in. Bourne and her GCHA colleagues were coping with a steady flood of callers seeking referral assistance, but as the lawyers’ discussions built towards identifying what sorts of plaintiffs ought to be sought out, both Bourne and Hames took on significant additional tasks. Everyone involved in the planning agreed that a wide range of plaintiffs, including doctors, interested nurses, and clergy counselors such as Emmett Herndon should all be recruited, and Judy and Margie divided up the responsibility for making most of the calls. Judy’s husband Peter, whose Emory responsibilities included overseeing a community mental health center, would of course be one, and Peter in turn helped enlist a variety of others. Judy first approached Emory’s Dr. Robert A. Hatcher, a well-known expert on contraceptive technology, and counted him as a particularly important recruit; Emmett Herndon and outspoken medical proponents of repeal such as Jim Waters and Newton Long also happily signed on.42
Both Judith and Margie, however, fully agreed that their lead plaintiff ought to be—and, indeed, perhaps had to be—an unwillingly pregnant woman who had tried but failed to successfully negotiate the institutional approval maze created by the 1968 therapeutic reform law. Many of the counselors and nurses, and several of the doctors, who staffed the abortion service at Atlanta’s Emory-affiliated Grady Memorial Hospital were GCHA members and personal friends of Judy and Peter Bourne, and by early March Judy had asked two of the women responsible for interviewing and evaluating abortion applicants, Sallie Craig Huber and Kit Young, to keep an eye out for an applicant who might run afoul of Grady’s quota ceiling and thus be a potentially ideal plaintiff for a federal court challenge to the 1968 provisions.
On March 12, just one day after Margie Hames gave birth to her second child, Kit Young interviewed just such a woman. Twenty-two-year-old Sandra Bensing was several weeks into her fourth pregnancy. The daughter of an Atlanta sanitation worker and a mother who was sixteen when she was born, Sandra had dropped out of school in the ninth grade, in part due to a bout with Bell’s palsy, and at age seventeen had married an Oklahoma drifter, Joel Lee Bensing. A son, Joel Lee, Jr., was born in May 1966, and a daughter, April, followed in November 1967. Joel worked only occasionally, and Sandra briefly had a job at a hamburger stand. The marriage was continuously conflict-ridden, and Joel was arrested several times for attempting to abuse different children. In June 1968, Sandra’s mother, angry at the entire situation, attempted to have Sandra committed to the Central State Hospital at Milledgeville, but Sandra left after only a short stay and resumed living with Joel. In May 1969, with Sandra seven months pregnant, Joel left and headed to Oklahoma, and Sandra went to the Atlanta Legal Aid Society to begin divorce proceedings.
Joel “tries to molest girls small or big,” Sandra stated in explaining her desire for the divorce. “He’s been in jail several times for sex crimes.” The following month, however, Sandra joined Joel in Texas to attempt another reconciliation, and briefly took a job in a plastics plant. In July 1969 she gave birth there in Texas to her third child, a girl who was given up almost immediately for adoption. That fall Sandra and Joel made their way back to Atlanta, and by early 1970 both of the older children had been removed from their custody and placed in a foster home.
Once in early January, and again in late February, Sandra went to Grady’s emergency room with various ailments. Then in early March, just days after leaving Joel and moving in with her mother, Sandra realized that she was again pregnant. On March 12 she went to Grady for that initial conversation about obtaining an abortion, and four days later she returned to the hospital for a series of interviews with psychiatrist Dr. Charles W. Butler and two psychologists. She told them she had renewed her effort to divorce Joel, and that she would be unable to care for a new child if this present pregnancy went forward. On March 24 and then again on March 28 Sandra returned to Grady for additional psychiatric consultations, and on April 1 she went for an obstetrical exam. Although she did request that her application for a therapeutic abortion be considered by Grady’s review committee, Sandra also told one or another of the staff members whom she saw on April 1 that she “doesn’t want it done if she is more than 3 months, [for she] feels that it would be like killing a baby.” The following week, on April 10, Dr. Butler told her orally that her application had been denied.
Sometime prior to receiving that April 10 news, but apparently well after her initial conversation with Kit Young, Sandra came to the attention of both Tobi Schwartz and Judy Bourne. Tobi first met Sandra when Sandra renewed her effort to have Atlanta Legal Aid help with her divorce; Judy learned of Sandra’s unsuccessful application to Grady either from her friends there or from Tobi. By at least Monday, April 13, Tobi, Judy, and Margie Hames knew that they now had just the sort of unsuccessful abortion applicant whom they had been seeking as a lead plaintiff, and over the following several days Margie and Tobi put the finishing touches on their draft complaint.43
Thursday morning April 16, Sandy Bensing formally executed an affidavit reciting her fruitless effort to obtain a therapeutic abortion at Grady Hospital and authorizing the filing of a federal court challenge against the 1968 reform law on her behalf. Agreeing to be publicly designated as “Mary Doe” for the purpose of the case, Sandra’s affidavit described how all three of her previous children were no longer in her custody and noted her prior stay at Milledgeville. It made no reference to her hope for a divorce, but it did assert that “she and her husband are financially unable to support and care for another child.”
Later that same day Margie Hames and Tobi Schwartz filed both their thirteen-page complaint and Sandra’s sealed affidavit in federal district court for the Northern District of Georgia. “Mary Doe” and Peter Bourne headed a list of twenty-four individual and two organizational plaintiffs. The other individual complainants—eight more physicians, seven nurses, five ministers, and two social workers—included Judy, Reverend Herndon, and Doctors Hatcher, Waters, and Long. GCHA was joined as an organizational plaintiff by Planned Parenthood of Atlanta, whom Judy had recruited only after agreeing to remove Grady Memorial Hospital, one of whose top doctors also chaired Planned Parenthood’s medical committee, from its intended position as the case’s lead defendant.
In Grady’s place Margie and Tobi instead named Georgia’s Attorney General, Arthur K. Bolton, followed by Fulton County District Attorney Lewis R. Slaton and Atlanta Chief of Police Herbert T. Jenkins. They asked for the appointment of a three-judge court to hear their request for both declaratory and injunctive relief against enforcement of the 1968 statute, and filed an additional motion, drawn up by Gale Siegel, a young legal aid colleague of Elizabeth Rindskopf’s, seeking a temporary restraining order against any further application of the law even in advance of an initial hearing. The complaint described “Mary Doe” as “recently abandoned” by her husband and sought to suggest that her denial at Grady was especially puzzling in light of her prior status as “a mental patient” at Milledgeville. Constitutionally, Hames and Schwartz cited Griswold, Belous, Vuitch, and Babbitz in asserting that “Mary Doe’s” “right of privacy or liberty in matters related to marriage, family and sex,” as well as “the sacred right of every individual to the possession and control of her own person” and “the right to be let alone” were all infringed upon by the restrictions contained in the 1968 Georgia reform law.44
The April 16 filing of Doe v. Bolton was front-page news all across Georgia, but that very same day in Minneapolis, a similarly titled but potentially more dramatic challenge to Minnesota’s traditional antiabortion law, Doe v. Randall, was filed on behalf of a twenty-three-year-old mother of three with a rubella-scarred nine-week pregnancy that her obstetrician, Dr. Jane E. Hodgson, had recommended she abort. Minnesota’s “Jane and John Doe” were Nancy K. and Ronald R. Widmyer, a Lakeville couple who had been married six years; Dr. Hodgson, at fifty-five, had practiced for twenty-two years as St. Paul’s only female obstetrician and gynecologist. She and her husband, Dr. Frank Quattlebaum, were the parents of two teenage girls, and since 1967 she had served, with a growing sense of frustration, on the Minnesota State Medical Association’s Ad Hoc Abortion Committee.
Jane Hodgson had begun thinking about a possible abortion law test case well before she first met Nancy Widmyer in January or confirmed the rubella threat to Widmyer’s pregnancy just two days before Doe v. Randall was filed. In a mid-November, 1969 talk in which she expressed regret that the Medical Association had refused to endorse a repeal bill in the Minnesota legislature, Hodgson had referred to both the Belous and Vuitch decisions and observed that “it is possible that change for all of us will come quickly via the Supreme Court.” A year later Hodgson remarked that “I think that perhaps for years, I was looking for a test case,” but as she subsequently explained, she realized full well that any test case plaintiff had to be “very carefully chosen” and certainly had to be married. “I really had been looking for somebody,” and when Nancy Widmyer’s flawless and potentially tragic situation presented itself, Jane Hodgson quickly concluded “that it was a once-in-a-lifetime perfect case.” Thinking back to the immediate context of mid-April, 1970, she also reflected that “I think what spurred me on was New York’s passage of their law” just a few days before Nancy Widmyer’s rubella exposure was confirmed.
Hodgson had long been acquainted with the small band of liberalization advocates who made up the three-and-a-half-year-old Minnesota Council for the Legal Termination of Pregnancy, and particularly with Robert McCoy, a founding member of the group who, by 1969–1970, was openly running a sizable one-man referral operation. Bob McCoy had introduced her to attorney Stewart Perry, and the day before Nancy Widmyer’s rubella exposure was verified, Perry agreed to represent Hodgson on a volunteer basis in filing a federal test case. Doe v. William Randall, the Ramsey County prosecuting attorney whose jurisdiction encompassed St. Paul, would seek injunctive protection for the therapeutic abortion, as well as a declaratory judgment that Minnesota’s antiabortion law was unconstitutional, on behalf of the Widmyers, Hodgson, and three other supportive doctors.
Even in advance of the April 16 filing, Jane Hodgson had personally consulted with several physician colleagues to obtain formal endorsements that a therapeutic abortion was indeed appropriate for Nancy Widmyer. The most prominent of those colleagues was Dr. Joseph H. Pratt of the Mayo Clinic, who forthrightly wrote on a copy of Nancy Widmyer’s medical record that “There is no question in my mind as to the proper course of treatment for the above patient. The chance of congenital mal-development with rubella contracted in the first month of pregnancy is very high. Therefore one should advise and discuss with such a patient the procedure for a therapeutic abortion. Since the patient is approximately 8 weeks pregnant the sooner such an operation could be done the less risk involved for the patient.”
Stewart Perry offered precisely that argument when he and Jane Hodgson appeared before U.S. District Judge Edward J. Devitt on April 20, with Hodgson submitting that given the progression of Nancy Widmyer’s pregnancy, the abortion should take place before May 1. Faced, however, with substantive and procedural objections both from Randall and from two attorneys speaking on behalf of Minnesota Citizens Concerned for Life, an antiabortion group hoping to intervene in the case, Judge Devitt agreed to delay any decision in the matter for at least one week and made clear his impression that no federally justiciable controversy existed with regard to the injunctive question in advance of the abortion itself and subsequent possible state charges against Dr. Hodgson. Perry told reporters he was “extremely upset” by the judge’s one-week delay, and while Devitt at the ensuing April 27 hearing agreed to convene a three-judge panel to consider the constitutional challenge, he again repeated his belief that no advance injunctive protection could be provided by the federal judiciary.
Two days later, on the morning of April 29, Jane Hodgson went ahead and performed Nancy Widmyer’s therapeutic abortion. She and Perry announced the news to the press and formally notified Devitt; on May 1, officers from the St. Paul police department arrived to formally question Dr. Hodgson. She was not surprised. She had assumed from the outset that criminal arrest and prosecution might well ensue, and after the first of Devitt’s hearings she had concluded that it was certainly “a good possibility.” Joe Pratt wrote her on May 6 to say that “I agree with the stand you took,” but five days later county attorney Randall confirmed to reporters that criminal charges were indeed likely. On May 19 Judge Devitt and two colleagues formally ruled that there was as yet no federally justiciable “case or controversy” in the matter; forty-eight hours later Jane E. Hodgson was officially indicted for the crime of abortion.
Jane Hodgson’s May 26 arraignment before Judge Ronald E. Hachey marked the first time in American history that a licensed physician had been criminally charged for performing a medically approved hospital abortion. Perry sought unsuccessfully to convince the federal panel that this development inescapably cured any prior absence of a “case or controversy,” but Devitt and his colleagues again refused to act. Perry also challenged the constitutionality of the Minnesota statute in state court, but with little delay Judge Hachey dismissed Perry’s arguments in a brief opinion that Jane Hodgson correctly described as embodying “the theology of the Catholic church.” A November trial date was soon set, and it immediately became apparent that depending on that trial’s outcome, one of the declaratory judgment cases such as Roe v. Wade or Doe v. Bolton might not be the first clear-cut constitutional challenge to an abortion statute to reach the U.S. Supreme Court.45
By late April 1970 it was also apparent, regardless of how Washington state’s fall referendum might turn out, that Hawaii and New York would not be the only two states whose legislatures would enact repeal measures. One contender, seemingly just as improbable as Hawaii, was Alaska, where two decidedly different individuals played the principal roles in making a repeal bill a strong candidate for legislative passage. One was Helen Nienhueser, a thirty-three-year-old Brown University graduate and mother of two with a background in social work. First inspired to take an interest in the abortion issue by several January newspaper articles that highlighted how the Alaska Medical Association had endorsed liberalization but would not mount a major legislative push, Nienhueser along with several other Anchorage women started circulating a petition backing a change in the law and soon created a small organization that called itself the Alliance for Humane Abortions. Unitarians and members of conservation groups were among the most supportive Alaskans, and a Methodist clergyman from Juneau, Reverend John Shaffer, emerged as a particularly important religious representative.
Within the legislature itself, Anchorage state senator John L. Rader, a longtime Alaska resident whose family physician was chairman of the state medical association’s legislative committee, took the lead in drafting a bill to legalize all abortions performed by a doctor during the first twenty weeks of pregnancy. Originally unable to recruit even a single cosponsor, Rader believed his measure had no prospects whatsoever for passage until the work of the grass-roots lobbyists suddenly began to have a clearly demonstrable effect. In early March Rader brought the bill up for an initial test on the senate floor, where it fell only one vote short of the eleven needed for passage. Then Rader learned of Hawaii’s repeal victory, and, after revising his measure in line with Hawaii’s, several weeks later he brought an amended bill back to the floor. One ill and previously absent senator had stepped aside and been replaced by his wife, and during the April 2 debate that new member, Roman Catholic Senator Kay Poland of Kodiak, declared her support for Rader’s bill, which thus passed by the minimum margin of 11 to 9. Eight days later the state house approved it on a comfortable vote of 26 to 12, but one week after that repeal proponents received an unpleasant surprise when Alaska Governor Keith Miller unexpectedly vetoed the measure. To override Miller’s veto would require a minimum of forty votes in a joint roll call of both houses, but Rader immediately indicated that he was relatively confident of success. That confidence proved justified on April 30, when the combined tally of the entire legislature resulted in a better than two-thirds affirmative majority of 41 to 17. Looking back on what had happened, Senator Rader explained that “It was an amazing display of public and political change which permitted the swing of legislative opinion from adverse to overriding the Governor’s veto in approximately a three month period.” Alaska’s new provisions would become effective on July 29, four weeks after New York’s repeal measure took effect.46
An initially similar chain of events also marked Maryland’s consideration of legislative repeal. Following a February hearing, Delegate Allen B. Spector’s repeal bill won passage in the lower house of the Maryland legislature by a two-vote margin in mid-March. Ten days later the state senate, in the face of clear indications that Governor Marvin Mandel might well veto the measure, nonetheless also approved it on a vote of 23 to 18. With the governor’s signature affirmatively required in order for the bill to become law, Mandel was able to postpone any action for upwards of eight weeks while repeatedly letting journalists know that an eventual veto was all but certain. Finally, in late May, Mandel formally issued a veto message contending that the bill was unacceptable because it included no residency requirement, no explicit term of pregnancy ceiling, and no provision for spousal or parental consent or notice in the cases of married women or teenagers.47
Mandel’s action, however, appeared as little more than a small blip on an otherwise rapidly cresting curve. In the course of just four days in mid-May 1970, declaratory judgment challenges to four different states’ abortion statutes were filed in federal courts in North Carolina, Kentucky, Missouri, and California. Corkey v. Edwards, the North Carolina case, featured five plaintiffs: four prominent obstetrician-gynecologists and former Charlotte legislator Arthur H. Jones, the onetime sponsor of the 1967 reform law that the case was constitutionally attacking. Jones told reporters that going to court would now be “quicker” than attempting to pass a repeal bill through the legislature, and the lead attorney in the case, Charlotte’s vibrant George S. Daly, Jr., who had sought out Roy Lucas’s assistance in preparing the suit, responded to comments about the stature of his clients by explaining that “We didn’t want a pregnant hippie as a plaintiff.”48
While the case against the Kentucky statute ran into immediate difficulties and delays at the hands of a seemingly hostile U.S. district judge,49 the Missouri suit, filed by attorneys Charlotte Thayer and Frank Susman, also utilized Lucas’s cooperation and drew upon his litigation strategies; four physicians led the list of plaintiffs.50 Lucas’s counsel was also solicited by Moses Berman, the attorney for California’s young Dr. John Shriver Gwynne, who since his willful abortion arrest in Los Angeles in March had accumulated a roster of six felony charges before shifting his operations to Santa Ana in Orange County on May 13. He was arrested there that very first day, and while Berman immediately filed suit in federal court against the Orange County District Attorney, neither the California activists, who had at best ambivalent views about both Gwynne and Berman, nor Lucas made any move to lend an active hand.51
But those four suits did not even begin to exhaust the rapidly widening drive for legislative and litigative repeal. In Connecticut, where several New Haven women were beginning to discuss a potential federal case, the principal liberalization group changed its name from the Connecticut League for Abortion Law Reform to the Connecticut League for Abortion Law Repeal. Attorneys in Ohio and university activists in New Hampshire both sought Lucas’s advice on whether federal cases should be initiated in their states, and several ongoing cases involving physicians offered other possible avenues for legal gains. In South Dakota, where prosecutors were appealing the constitutionally based dismissal of criminal charges against Dr. Ben Munson to the state supreme court, Munson’s local counsel, Homer Kandaras, brought in Lucas to supplement the defense. In Louisiana, where an effort by the state board of medical examiners to revoke the license of a physician on abortion-related grounds was being constitutionally contested in federal court, Benjamin E. Smith, the old-line civil rights lawyer representing Dr. Isadore I. Rosen, similarly enlisted Lucas’s assistance. Additionally, several weeks later, in early June, yet another federal declaratory case got underway when Planned Parenthood of Phoenix and several affiliated doctors filed suit against Arizona’s attorney general in a constitutional challenge to that state’s abortion statute.52
The abortion case that was moving forward most swiftly, however, was in Texas. In the immediate aftermath of Linda Coffee’s March 3 filing of Roe and Doe v. Wade, the most significant early development came when Roy Merrill, the young Dallas lawyer who already had been in touch with Lucas in preparation for contesting the constitutionality of Texas’s abortion law as part of the criminal defense of indicted Carrollton physician James Hubert Hallford, heard about Coffee’s suit and immediately contacted her. Merrill explained that he and his senior partner, Fred Bruner, wanted to join the case by introducing Hallford as an additional party. Coffee was overjoyed both by the prospect of having a medical plaintiff added to the suit and by the additional legal help that Merrill and Bruner could provide, and readily welcomed their participation. On March 19 they filed an initial request to formally intervene, and four days later they submitted a full-scale complaint.
Merrill and Bruner’s client, James Hubert Hallford, was facing an April 20 trial date in state district court on two charges of criminal abortion. A forty-three-year-old native of Wichita Falls, Hallford had grown up in Enid, Oklahoma, and had graduated from Oklahoma Baptist University. He received his medical degree in 1958 from the University of Texas’s Southwestern Medical School in Dallas, and, following a two-year internship in Oklahoma City, he began practicing medicine in the small town of Carrollton, just north of Dallas, in 1960. Married and with several young children, Hallford nonetheless struggled for several years with an increasingly serious drug problem, and in December 1963 he was brought before the Texas Board of Medical Examiners on charges that he had been improperly writing prescriptions so as to furnish himself with Demerol. One year later, when those charges were renewed, the board revoked Hallford’s medical license on the grounds “of writing narcotic prescriptions for himself, using the names of fictitious persons.” In December 1965 Hallford’s license was reinstated on a probationary basis, and he resumed his Carrollton practice.
An active member of Carrollton’s First Baptist Church and the part-time health officer and city physician for municipal employees, Hallford was thought of by many as “a sound citizen” and was known among the regulars in Carrollton’s small downtown as a man who could always be found with a Coca-Cola in his hand. Both Fred Bruner and Roy Merrill quickly realized in 1969 when they first met Hallford that a substantial number of abortions had been a significant part of Hallford’s practice for at least several years, and in a town as small as Carrollton, the inevitable visibility of that enterprise eventually led to Hallford’s undoing.
William R. “Bill” Fuller and Frank Johnson handled criminal investigations for Carrollton’s sixteen-member police department. With an “odd traffic” of up to seven or eight out-of-town women arriving each day for extended stays at Hallford’s office just off Carrollton’s main square, “it wasn’t too difficult” for Fuller and Johnson to realize what was going on. Most of the female patients looked like young college students, and early in 1969 Fuller and Johnson began a discreet visual surveillance of Hallford’s office. Some days the number of unfamiliar women visitors reached more than a dozen, and the investigators wondered whether the scale of Hallford’s profitable practice might be explained by a need to generate enough money to support an ongoing drug addiction. The officers were all but convinced that Hallford had to be aware of their interest, and they speculated that perhaps Hallford believed they would not be savvy or persuasive enough to be able to make a case against him.
As they observed the stream of young female visitors, Fuller and Johnson took down license plate numbers and concluded that many of Hallford’s patients were students from the University of Texas at Austin. With names and addresses obtained from the vehicle registrations, Fuller and Johnson paid a quiet visit to Austin. They located and confronted one of Hallford’s recent patients, Jane “Wilhite,” and under questioning she acknowledged that Hallford had indeed performed an abortion at her request. That was all Fuller and Johnson needed, and shortly after returning to Carrollton they both testified before a Dallas County grand jury that Jane “Wilhite” had confirmed that on January 4, 1969, Dr. Hallford had violated the Texas antiabortion law. On May 5 the grand jury formally indicted Hallford, and Fuller and Johnson went to Hallford’s office to tell him he was under arrest. Hallford reacted with complete calm, but several months later a second woman willingly contacted the police, and in October 1969 a second abortion indictment was added to the first.
Hallford’s retention of fifty-three-year-old Fred Bruner as his principal attorney was unsurprising, for Bruner was widely regarded as one of Dallas’s better criminal defense lawyers. A former number-two prosecutor in the Dallas County district attorney’s office, Bruner had won at least one well-remembered abortion conviction of a physician back in the 1950s. Bruner considered Hallford “a competent general practitioner” with at least one chronic problem, and Roy Merrill, Bruner’s younger associate, viewed their client as something of an introvert yet certainly “a good person” despite his troubles. Bruner’s estimate of Hallford’s abortion practice was that the doctor “wasn’t an idealistic person,” but Merrill, after once asking Hallford about his personal views, came away with a somewhat more nuanced impression. “‘It’s not an issue for me,’” Hallford had answered. While finishing his medical training, Hallford explained, he had seen any number of women admitted to Dallas’s Parkland Memorial Hospital who had been injured by unskilled abortionists. Hence, “‘it’s real, real easy for me,’” Hallford said, “‘because when a woman comes to me, by the time I ever see her, she’s already made up her mind: she’s going to have an abortion.… It’s just a question of who’s going to do it.’”53
Bruner and Merrill’s move to hitch Hallford’s constitutional claims to the federal court opening provided by Roe and Doe v. Wade was not the only significant development that quickly followed Coffee’s well-publicized initial filing. In line with the court’s standard sequential practice, the two cases were respectively assigned to District Judges Sarah Hughes and William “Mac” Taylor, and hence it came as no surprise to Coffee or anyone else when Dallas papers reported, on the very same day that Hallford’s first petition was noted, that Hughes, Taylor and Dallas’s resident Circuit Judge, Irving Goldberg—the very same panel that had ruled favorably for Henry McCluskey in Buchanan—had been named by the chief judge of the Fifth Circuit, John R. Brown, as the three-judge court that would hear both Roe and Doe. Coffee and Merrill both appreciated that Hughes and Goldberg’s appointments were indeed promising, and Hughes quickly granted Merrill and Bruner’s request that Hallford be added as an intervening plaintiff.
Beyond Merrill and Bruner, the other party who quickly responded to Coffee’s filing of Roe and Doe was the one named defendant in the cases, Dallas County District Attorney Henry Wade. First elected to the local prosecutor’s post in 1950, the fifty-six-year-old D.A. had long ago deservedly earned a reputation for fairminded toughness; years later observers would single out Wade’s successful prosecution and jailing of one of his own brothers for drunken driving as a signature story from Wade’s years in office. Hallford aside, almost all abortion prosecutions undertaken by Wade’s office were of nonmedical practitioners who had badly or fatally injured one or more women; proactive antiabortion raids were not a principal feature of either Wade’s office or the Dallas police department. Wade himself, responsible for supervising a staff of more than one hundred attorneys and with no particular interest in the subject matter, made no effort to have any direct input into his office’s response to the two abortion cases in which he had been named the sole initial defendant. Roe and Doe’s initial paperwork was channeled to assistant district attorney Wilson Johnston, whose first reaction was to notify the state attorney general’s office in Austin about the cases and to “earnestly invite you to participate in the defense.”
The chief of Wade’s appellate section, John B. Tolle, was a thirty-six-year-old graduate of Notre Dame and Southern Methodist University’s law school. As the attorney responsible for all of Wade’s office’s participation in federal cases, Tolle on one hand viewed Roe as “just a routine assignment,” similar in some respects to Henry McCluskey’s successful sodomy law challenge, which Tolle had also handled, just several months earlier. But Tolle on the other hand also recognized Roe as “a serious case” because Linda Coffee was the attorney who had filed it. Tolle had had a good deal of interaction with Coffee during her 1968–1969 clerkship with Sarah Hughes, and had developed “a lot of respect” for her. “I didn’t think Linda Coffee would involve herself in an oddball thing.”
On March 23, Tolle filed a two-page initial response to Roe, arguing that “Jane Roe” lacked judicial standing to bring the case, since “the statutes complained of operate only against persons who perform an abortion, not against pregnant women upon whom abortions are performed.” The following day two one-page submissions signed by Johnston lodged a similar objection against Marsha and David King’s contentions in Doe: the plaintiffs lacked standing and the suit amounted to little more than a request for an improper advisory opinion. The state attorney general’s top deputy, Alfred Walker, had directed Robert Flowers and Jay Floyd, the chief and assistant chief of that office’s appropriate division, to respond to Johnston’s letter and to definitely participate in the case, and in response to that initial acknowledgment, Johnston with some embarrassment sent Floyd copies of the Doe filings with an apology for how “hurriedly and horribly” the papers had been drafted: “I even failed to point out that Mary Doe is not now pregnant and may never be.”54
While the Dallas and Austin officials were struggling to coordinate credible responses to the two cases, Sarah Hughes moved swiftly to get Roe, her assigned case, on a fast track to a quick hearing. On March 26 she wrote Coffee, Bruner, Tolle, and the attorney general’s office to summon them to a pretrial conference in her chambers on Friday afternoon, April 3, and at that officially unrecorded session, almost all of the procedural underbrush of both Roe and Doe was decisively cleared away. Hughes told the five attorneys—Coffee, Bruner, Merrill, Tolle, and Jay Floyd—that Roe and Doe would be consolidated, that the state of Texas would be permitted to intervene, that Coffee and Weddington would be allowed to file an amended complaint, designating Roe as a “class action” on behalf of all women similar to “Jane Roe,” and that a formal hearing of the case before the full three-judge panel would be scheduled for two p.m. on Friday, May 22. Tolle had filed a request to question “Jane Roe” as soon as possible, and Linda Coffee parried by explaining that “Roe” would be continuing her pregnancy right up until childbirth. Hughes set a schedule for the filing of everyone’s additional briefs leading up to the hearing, and Jay Floyd left the session with decidedly pessimistic expectations, telling Alfred Walker that “From all indications we do not appear to be in very good shape in these cases.”55
While Coffee, Hughes, and Hallford’s lawyers had been moving forward with Roe, both the Dallas and Austin women’s groups had continued their abortion work. The Austin women, who were actively continuing their referral service, were also approached by a commercial referral operator from California, Wray Morehouse, who was hoping to expand his network for providing Mexico City abortions from an initial Texas base in Houston to both Austin and Dallas. The Austin activists concluded that the medical reputation of his service was less than desirable, and announced their stance in The Rag.56 In Dallas, the far more visible Dallas Committee for the Study of Abortion (DCSA) repeatedly publicized its support for repeal, and in early May its sister group, the Unitarian Women’s Alliance, sponsored a talk by Linda Coffee and discussed whether they could sponsor an amicus brief in federal court. In mid-May DCSA held a well-attended public forum at which both Ginny Whitehill and Representative Jim Clark spoke, but much of the news coverage focused on a third speaker, Southern Methodist University chaplain J. Claude Evans, who had made front-page news in Dallas several weeks earlier when he had delivered a sermon championing abortion liberalization after attending a campus clergy conference in New Orleans that had featured Dallas native Howard Moody. Just as with Judy Bourne in Atlanta, Evans’s sudden notoriety led to a deluge of phone calls from women seeking referral information, and within days Evans and his associate chaplain, Robert O. Cooper, found themselves operating a nascent Clergy Consultation Service of their own.57
On the litigation front, state court judge Jerome Chamberlain indefinitely postponed Dr. Hallford’s criminal trial in deference to the federal court’s consideration of his constitutional claims in Roe, and in mid-April Fred Bruner and Roy Merrill filed an extremely impressive fifty-four-page brief on Hallford’s behalf with the Dallas three-judge court. Weddington and Coffee soon followed with an amended complaint and a far more modest fourteen-page brief of their own. A profusion of typographical errors testified to Linda’s rusty skills as a typist, and the brief repeatedly cited Merrill and Bruner’s submission in support of various points while attaching a photocopy of the constitutional portions of Lucas’s brief in Hall as a supplemental reference. At the end of April Jay Floyd submitted an unremarkable memorandum on behalf of the state contending that none of the plaintiffs had adequate standing to pursue the case, and just days before the May 22 hearing John Tolle of Wade’s office filed a three-page brief bluntly asserting with regard to “Roe” that “the right of the unborn child to life is greater than the Plaintiff’s right to privacy.” Most basically, Tolle said, “the preservation of the life of the unborn ‘human organism’ is a matter of compelling interest sufficient to give the State of Texas constitutional authority to enact laws for that purpose.” At that same time, the only amicus brief in the case, a five-page effort from the Dallas Legal Services Project on behalf of poor women, was also filed, quickly followed a nine-page supplemental statement from Merrill and Bruner.58
The day before the May 22 hearing Coffee and Weddington completed the trial court record by filing two affidavits. One was from Dr. Paul C. Trickett, since 1968 the director of the student health service at the University of Texas in Austin, who had been introduced to Weddington some time earlier by campus minister Bob Breihan. Trickett had taken more than his share of criticism in The Rag for the health service staff’s inconsistent responses to women students’ requests for contraceptive assistance, but the number of women coming in for postabortion checkups after visits to Mexico, Carrollton, or wherever had made a significant impression on him, and he briefly voiced his views in a four-page statement.
Coffee and Weddington’s second affidavit was an anonymous three-page statement from Norma McCorvey, submitted in lieu of the questioning that John Tolle had sought. Drafted in large part by Coffee, McCorvey’s declaration offered a lengthy justification for her anonymity, asserting a fear that “the notoriety occasioned by the lawsuit would make it impossible for me to secure any employment in the near future and would severely limit my advancement in any employment which I might secure at some later date.” It went on to say that “I consider the decision of whether to bear a child a highly personal one and feel that the notoriety occasioned by the lawsuit would result in a gross invasion of personal privacy.” Although the affidavit did not expressly note that McCorvey was now almost eight months pregnant, it did explain that she had “wanted to terminate my pregnancy because of the economic hardship which my pregnancy entailed and because of the social stigma attached to the bearing of illegitimate children in our society.” While Weddington and Coffee, given their concern that an abortion could possibly have mooted the case, were privately thankful that McCorvey was carrying the pregnancy to term, McCorvey’s affidavit concluded by describing how she was too poor to travel outside Texas for an abortion or to pay for a medically competent illegal one; “I fear that my very life would be endangered if I submitted to an abortion which I could afford.”59
Only one member of the three-judge panel, Sarah Tilghman Hughes, had given much thought to Roe v. Wade in advance of the May 22 hearing. One of her two clerks, Randy Shreve, had been assigned to pull together relevant materials in addition to the spotty briefs that made up the case’s formal record, and Shreve had gone to the extent of calling Roy Lucas in New York to ask for information. Lucas sent off a package of what he termed “numerous articles and briefs to which you may or may not already have had access,” but whether or not Shreve was cognizant of it, Sarah Hughes already knew full well what she thought of the substantive issue posed by Roe v. Wade. Asked later whether she had had a personal opinion on the question prior to hearing the case, Hughes answered frankly that “Oh, well, I was in favor of permitting abortion.”
Neither of the other two panel members, Irving Goldberg and William M. “Mac” Taylor, Jr., had ever given the subject any particular consideration. Goldberg, asked about it two decades later, explained that he had “had no contact” with abortion and had “never thought about it” prior to Roe. Taylor, who passed away in 1985, had been named to the district court bench by Lyndon Johnson at the very same time that Goldberg had been nominated for the circuit court in June 1966. Sixty-one years old when he heard Roe, Mac Taylor had graduated from Southern Methodist’s law school in 1932 and had spent several years as a junior prosecutor before moving into private practice. After serving four years as a state court trial judge in the early 1950s, Taylor had returned to private practice up until the time of his federal nomination. A “soft-spoken, even tempered” man who never raised his voice, Taylor was a popular if unremarkable figure in Dallas’s federal courthouse, and no one who knew him expected him to play a dramatic role on a three-judge panel that included the resolutely liberal Hughes and the energetically outspoken Goldberg.60
When Goldberg called the hearing to order at two p.m. on May 22 in Sarah Hughes’s courtroom in the federal courthouse and post office in downtown Dallas, a largely female crowd—including Marsha and David King, but not Norma McCorvey—had filled almost every seat in the room. John Tolle explained to the panel that there were no disputed facts in the case and that neither side thus had any testimony they desired to present. Goldberg hence said that each side would be given thirty minutes to speak to the competing motions for summary judgment and for dismissal, and both Fred Bruner and Tolle indicated that each side’s attorneys had already agreed on how to divide their time amongst themselves. Bruner and Merrill had spoken by phone with Linda Coffee about how they planned to handle Hallford’s claims; Coffee and Weddington had worked out a division of labor between themselves, and Tolle and Jay Floyd from the attorney general’s office had arranged to split the defense’s allotment.
Linda Coffee led off for the plaintiffs, explaining that she would address the procedural issues and Weddington the substantive ones. Coffee argued that the federal panel should declare the Texas abortion law unconstitutional since there was no acceptable or “saving” construction that state courts could give to the provisions, but as soon as she mentioned that the case also involved First Amendment issues, Sarah Hughes quickly asked what they were, and Coffee answered, “Well, the right of privacy,” citing a 1969 Supreme Court First Amendment decision, Stanley v. Georgia, that had condemned “unwanted governmental intrusions into one’s privacy” while voiding the obscenity conviction of a man who had been found to have three pornographic films in his home. Irving Goldberg immediately inquired as to whether Coffee drew any distinction between the First and the Ninth Amendments, and Coffee tried to parry the issue. Then both Goldberg and Hughes proceeded to bombard her with a series of questions and observations on a variety of points, and for the entire balance of her time Coffee was unable to utter more than two consecutive sentences without being interrupted.
Then Weddington rose to address the constitutional issues, and she was only halfway through her initial effort to list the prior decisions that had recognized a privacy right in the context of abortion when Goldberg interrupted to say that “I don’t read Vuitch that way.” Weddington responded by immediately beginning to read Gesell’s own language, and the peppery Goldberg for once was satisfied. Weddington referred to the law review exposition of a privacy-based abortion right that had been offered by retired Supreme Court Justice Tom Clark, a Texas native and onetime Dallas County prosecutor, but Goldberg broke in to ask her whether the state had any compelling interest in regulating the performance of abortions. Weddington answered that the only valid such interest lay in requiring that they be performed by doctors, and Goldberg immediately interjected “Or the state of pregnancy or anything?” Weddington conceded that “the state of pregnancy gives me some pause,” and noted how the Babbitz panel had spoken of the fourth month, but quickly went on to say that “a more persuasive argument is that you could recognize life when the fetus is able to live outside the body of the mother,” somewhere between twenty-two and twenty-six weeks of pregnancy. Picking up on Goldberg’s earlier intimation, Weddington contended that “under the Ninth Amendment … those women have a right to abortion,” but Goldberg again and again pushed Weddington to speak to the issue of whether there were any additional compelling state interests in the area. Weddington finally indicated, without using the word viability, that some ceiling point limitation would indeed be constitutionally proper. Then Goldberg concluded their colloquy by asking whether “you think this statute is more vulnerable on Ninth Amendment grounds or on vagueness,” and Weddington forthrightly answered that “I believe it is more vulnerable on the Ninth Amendment basis.”
As part of the prior arrangement worked out with Coffee, Fred Bruner devoted most of his ten minutes to arguing, in line with both Belous and Vuitch, that Texas’s single statutory exception, allowing abortions necessary for “saving the life of the mother,” was indeed unconstitutionally vague. Then Jay Floyd began the defense argument by contending that none of the plaintiffs had adequate legal standing to bring the case, but both Goldberg and Hughes firmly indicated that they found the assertion unpersuasive. Hearkening back to Coffee’s initial constitutional reference, Floyd declared that “I cannot perceive, your Honors, how it would fall under religion, speech or press of the First Amendment,” and while Hughes quickly interjected that “We agree with you on that,” Irving Goldberg pressed him to “go to the Ninth Amendment and what about vagueness.” Floyd responded by noting that he failed to see how the references in the plaintiffs’ briefs to the constitutional guarantee of equal protection had any relevance, and Goldberg, indicating agreement, brusquely told him to “Skip it.” Both Goldberg and Hughes’s questions seemed to reflect the influence of Belous and Vuitch, but toward the end of Floyd’s presentation, yet another reference to privacy caused Goldberg to voice something of an objection. “Well,” he volunteered, “I think it’s a bad word in this area, but apparently everybody wants to use it. I think it’s something different from privacy, but I haven’t come up with a phrase myself yet, but I just know ‘privacy’ won’t do.”
John Tolle concluded the attorneys’ presentations by reechoing the position Wade’s office had articulated in its earlier filings. “The state has got a right to protect life that is in being at whatever stage it may be in being,” and policy-making toward that end “is a matter for legislative determination.” Under the existing Texas statute, once a pregnancy had occurred “the right of that child to life is superior to that woman’s right to privacy.” Tolle experienced far fewer interruptions that any of the other counsel had suffered, but just as the hearing was coming to a close, Irving Goldberg directed a pointed hypothetical question to Sarah Weddington: if the panel perchance did enjoin Henry Wade’s office from any further enforcement of the Texas abortion statute, where would that leave all the dozens of other district attorneys in Texas. Weddington answered that she thought the state attorney general was now a party-defendant, but both Goldberg and Hughes instantly told her that he was not a party. “Do you have any response to the question?” Goldberg asked. Weddington hesitated. “We goofed,” she exclaimed, and laughter rippled through the crowd as the hearing ended.61
As the three judges retired to the small library situated right behind Hughes’s courtroom, the respective attorneys and some of their supporters began to mull over the possible results of the hearing. Linda Coffee, whose performance some of the supportive onlookers had found less reassuring than Sarah Weddington’s, was nonetheless “very confident” that the plaintiffs would prevail at least on vagueness grounds and “fairly optimistic” that they would win a decision on the more far-reaching constitutional merits as well. Both Roy Merrill and Fred Bruner, however, came away with a sense that Goldberg and perhaps Hughes were more likely to hand down a Ninth Amendment decision rather than one based on vagueness or any of the potential procedural problems. On the other side, both Jay Floyd and John Tolle came out of the hearing in fairly upbeat spirits. “I felt that they were not going to declare the statute unconstitutional,” Floyd remembered. “I was confident.” Tolle recalled that he “thought we did a pretty good job” and had made “a good presentation,” but he had no particular expectation as to what sort of a decision the panel was likely to render.
Among the onlookers, Ginny Whitehill, who had never before met Weddington, left the room “more optimistic” than she had been at the outset, largely because of how well Sarah had coped with Goldberg’s sustained questioning. Weddington herself, however, felt “let down” and “less optimistic,” in spite of how promising Goldberg’s strong interest in the Ninth Amendment might well be. The hearing had been Weddington’s first courtroom appearance ever as a practicing attorney, and hence “I was petrified” during that part of the proceeding, she later explained. The most reassuring moment, she said, came when Sarah Hughes looked down, made eye contact and “gave me a reassuring smile” and then “winked at me as if to say, ‘It’s going to be all right.’” Indeed, Weddington’s performance, particularly in the face of Goldberg’s onslaught, had actually gone far better than she thought. The least experienced participant in the hearing had arguably turned in the best showing of the day, but all of the attorneys realized full well that their impressions and evaluations would probably count for very little once the panel itself sat down to make a decision and got to work on an actual opinion.62
The hearing in Roe came three weeks before the similar proceeding in Georgia’s Doe v. Bolton. Once Margie Hames and Tobi Schwartz had filed suit in mid-April, the next substantive development in the case took place late that month when Fifth Circuit Chief Judge John Brown named three Atlanta jurists—District Judges Sidney O. Smith, Jr., and Albert J. Henderson, Jr., and Circuit Judge Lewis R. Morgan—as Doe’s special three-judge court. At that same time, a Roman Catholic Atlanta attorney, Ferdinand Buckley, petitioned Judge Smith for appointment as the “guardian ad litem” for “Mary Doe’s” fetus, with the corresponding opportunity to thus become a full-fledged participant in the case. Smith initially granted the petition, and then eight days later revoked it as “improvidently” granted after Margie Hames protested that Buckley’s status would obstruct the ongoing effort to arrange a legal abortion for Sandra Bensing at some hospital other than Grady.
Late in April both Dr. Peter Bourne and Dr. Donald L. Block, an obstetrician/gynecologist at Georgia Baptist Hospital on the east side of Atlanta, met with “Mary Doe” and began the process of obtaining approval for Sandra’s abortion. On May 5 both Sandra and her husband Joel Bensing executed supportive affidavits, with Sandra stating that “I am very nervous and upset at the thought of raising another baby.… I cannot love another baby and I am depressed all the time thinking about my pregnancy.” Joel straightforwardly declared that “I don’t want her to have this baby” and “I do not want this baby either.” Later that same day Georgia Baptist’s abortion committee approved Sandra’s request, and Margie, Tobi Schwartz, and the Bournes started piecing together the several hundred dollars that would be required to pay Sandra’s hospital costs for the procedure.
In mid-May the Bolton defendants filed a pro forma motion to dismiss, but several days later Judge Smith set the formal three-judge hearing for ten a.m. on Monday, June 15, and notified all the attorneys that briefs would be due by June 8. Hames and her colleagues set to work on their principal arguments, and Judy Bourne’s small GCHA group, which already had helped more than 150 women with referral assistance, continued its work and confidently predicted a judicial victory to the Atlanta newspapers. Then, however, sometime in the third week of May, the Bournes and the attorneys received startling news: Sandra had failed to show up for her scheduled abortion at Georgia Baptist, and indeed was nowhere to be found. Quiet but frantic inquiries produced reports that Joel, once again on the lam from the law, this time for relatively minor theft, had fled to Oklahoma and had taken Sandra with him. More than a week’s worth of very nervous days passed as the attorneys began trying to identify some other unsuccessful abortion applicant whom they could substitute for Sandra or simply add to the case. They had already started to consider such an option while worrying about the mootness issue that might arise if Sandra did indeed obtain an abortion, and by early June they had identified two possible new plaintiffs: Linda “Smith,” a twenty-four-year-old mother of two who had been turned down at Grady and then fired from her job once her twenty-week pregnancy had become visible, and Martha “French,” a forty-one-year-old mother of seven whose husband was a severe alcoholic.
Then, no more than week before the scheduled hearing, Sandra called Margie Hames from Oklahoma. Joel had taken off and left her there with essentially no money; equally if not more important, Sandra also said she had felt fetal movement in her now four- to five-month pregnancy and that experience had convinced her that she no longer wanted an abortion. Hames told her that no one wanted to force her to go ahead, that continuing the pregnancy was actually better in terms of the court case, but that the lawyers did very much want her to come back to Atlanta so that she could be present at the June 15 hearing. Sandra agreed, and after confronting and overcoming a variety of logistical problems, Tobi Schwartz arranged to use the money they had put together to underwrite Sandra’s abortion to instead finance a prepaid airplane ticket that would bring Sandra back to Atlanta from Oklahoma. On Sunday, June 14, Tobi met Sandra at the airport and took her to Margie’s, where they acquired some proper clothes for the hearing and also worked out written answers to a set of basic, factual questions that the defendants had propounded for “Mary Doe” just four days earlier. Tobi then had Sandra spend the night at Tobi’s own home and arranged for a Legal Aid staff member to accompany her to the ten a.m. Monday hearing.63
The six briefs filed with the three-judge court in Doe represented a considerably more extensive set of arguments than had been provided to the Texas panel in Roe. Hames, Schwartz, and Rindskopf had relied very extensively and very directly on the most recently updated materials that Roy Lucas had filed in late April in the New Jersey declaratory judgment case, and hence their fifty-eight-page submission cited both Tom Emerson’s 1965 remark about how Griswold might well prove applicable to abortion and retired Justice Tom Clark’s law review article as well as Belous, Vuitch, and Babbitz. They precisely repeated Lucas’s contention that “Griswold is not an isolated decision confined to its facts, but one in a continuing line of decisions involving various aspects of personal privacy and family autonomy,” and went on to assert that since “the State has no compelling interest to justify interfering with a woman’s basic right to privacy in matters related to sex, family and marriage,” therefore even the 1968 Georgia reform statute “is an unconstitutional invasion of the right to privacy.”
Alan Charles, a young California protégé of Zad Leavy and Tony Beilenson’s, filed a solid amicus brief in support of the Doe plaintiffs, and Ferdinand Buckley, the erstwhile fetal rights intervenor, submitted a fifty-two-page statement on behalf of “Mary Doe’s unborn child” and other “unborn children.” Tony Hight, an assistant district attorney representing Fulton County district attorney Lewis Slaton, and Atlanta city attorneys Henry Bowden and Ralph Witt, representing Atlanta Police Chief Herbert T. Jenkins, each filed modest, six-page statements; of the three named defendants, the lead role in speaking up on behalf of Georgia’s 1968 law thus fell to Dorothy T. Beasley, the one female assistant attorney general on Arthur Bolton’s staff of some twenty-six such deputies.64
A New Jersey native who had earned her law degree at Washington’s American University in 1964, Dorothy Toth Beasley had moved to Atlanta with her husband in December 1967. At a Christmas party she had remarked to one new acquaintance, Owen Forrester, that she was looking for a job, and Forrester had recommended that she call one of his fellow partners at Fisher and Phillips, Margie Hames. An interview with Hames was arranged, and by the end of January Dorothy Beasley had joined the firm. She practiced there until shortly before joining the criminal division of Bolton’s staff in October 1969, just six months prior to when Bolton and criminal division chief Marion O. Gordon had assigned her Doe. Bolton had a high opinion of Beasley, and privately thought she was perhaps the best lawyer on his staff. “She didn’t get it simply because she was female,” the outspoken attorney general emphasized years later in explaining that the statute deserved as good a defense as his office could provide. “I really left it up to her.”65
None of the three members of the special panel before whom Beasley and her former colleague Margie Hames appeared on Monday morning June 15 had the sorts of reputations that had allowed Linda Coffee to feel so optimistic about the Dallas court that had featured Sarah Hughes and Irving Goldberg. The one circuit judge on the Atlanta panel, Lewis R. Morgan, had been promoted to the Fifth Circuit in 1968 after having served as a district judge in north Georgia since John F. Kennedy had nominated him in 1961. A LaGrange native whose father had been a doctor, Morgan had earned his law degree at the University of Georgia, where he had been a close friend of future Georgia Senator Herman Talmadge, and had served in the state legislature in the late 1930s. Fifty-seven years old in 1970 and widely regarded as a judicial moderate, Morgan was popular with his colleagues and rarely authored dissenting opinions.
The second member of the Doe panel, silver-haired Albert J. Henderson, had been named to the district court bench at the same time that Morgan had been elevated to the Fifth Circuit. A forty-nine-year-old native of Marietta, Henderson had earned his undergraduate and law degrees from Mercer University in Macon and had served seven years as a juvenile court judge and then seven years as a state superior court judge before joining the federal bench. An exceedingly quiet man, Henderson was viewed as undoubtedly the most conservative member of the panel by the Doe attorneys.
The youngest and most intriguing member of the Doe panel was the judge who had taken preliminary responsibility for the case right from the start, Sidney O. Smith, Jr. A Gainesville native and World War II Army veteran who had graduated from Harvard before earning his law degree at the University of Georgia, Smith had been elected a state superior court judge in 1962 and had been named to a federal district court judgeship by Lyndon Johnson in 1965. A friendly man with an easy sense of humor, he teasingly told Elizabeth Rindskopf, who was herself pregnant, that they could stipulate that Rindskopf was not “Mary Doe.” Like Rindskopf, Margie Hames viewed Smith as far and away the Doe plaintiffs’ most likely supporter on this particular panel.66
When Lewis Morgan called the June 15 hearing to order before a “standing-room only crowd” that included a significant number of pregnant women, and not just Sandra Bensing, both Margie Hames and Tobi Schwartz were prepared to present a number of well-prepared witnesses, including Doctors Donald Block and W. Newton Long, who were ready to testify about the significant obstacles and delays that the Georgia reform statute placed in the path of women seeking approval for a legal, therapeutic abortion. The three-judge panel, however, had caucused privately in advance of the hearing to discuss their concerns, and Morgan began the proceeding by asking Hames to address the most basic issue of whether the court had jurisdiction to hear the case. When Hames sought to parry, Sidney Smith immediately jumped in and seconded Morgan’s point, exclaiming that “The question that concerns us is what do the federal courts have to do with the case. What is the federal constitutional right that requires a federal district court to pass on the matter?” Hames responded by citing “the First and Ninth Amendment right of privacy and right to control her own body,” and Smith immediately replied by saying that “I understand that you are basing this primarily on the Griswold case. Now, I do not see in the Constitution in reading it a federal constitutional right to the right of privacy, and this is the underlying question.” As Hames tried to respond, she and her colleagues silently wondered whether this was an indication that their chances of success were exceedingly slim, and Smith reiterated his concern, saying that “I am having difficulty making a federal constitutional right out of the underlying question.” Lewis Morgan broke in to seemingly give Hames a hand, and Hames made reference both to Babbitz and to Henry McCluskey’s victory in Buchanan. She offered to file a brief detailing them both, and when Morgan quickly asked if she could do so within ten days, Hames readily agreed.
When the panel members turned their attention for a moment to Ferdinand Buckley, Judge Smith twice referred to the issue of “the unborn child.” He then further volunteered that since Doe was a facial challenge to the 1968 Georgia law, “I don’t see what we need any evidence for to reach that question,” and Morgan agreed, saying that “I was under the impression there wouldn’t be any evidence.” Hames politely but repeatedly tried to say that the plaintiffs very much did want to present testimony, but Smith and his colleagues remained firm: “I see no need for any evidence,” particularly the sort of detailed descriptions of hospital abortion committee functioning that Hames, Schwartz, and their witnesses had been prepared to offer. Morgan called a brief recess so that the panel could consult privately, and when they came back in, Morgan announced that they were in agreement that there were two issues here, jurisdiction and the merits. Tobi Schwartz took over from Margie and recited almost verbatim the entire Lucas sentence about how “Griswold was not an isolated decision confined to the facts …” that they had employed in their brief. All three of the panel members tried to press her as to whether a fetus’s father should have any rights or standing, and then Morgan asked whether the panel should simply wait until the Supreme Court decided Vuitch. Schwartz said no, since Vuitch had turned on vagueness, and the panel called upon the defense attorneys to offer their arguments.
Fulton County assistant district attorney Tony Hight led off for the trio of defendants, focusing upon how the record did not indicate why Grady had rejected “Mary Doe’s” abortion request and further contending that an application for a hospital abortion did not involve “the private marital state that is referred to in Griswold.” Then Dorothy Beasley took over, firmly asserting that if “Mary Doe” wanted to avoid having children, she had the options of sterilization, birth control, or abstinence from sexual relations. “She has voluntarily put herself in the position to have this child and once that life is kindled in her, the state takes the position that it has the right to be born because it is regarded as a life.” Judge Morgan responded by pointing out, as he had to Hight, that the Georgia reform law nonetheless already allowed for the abortion of some fetuses, and Beasley replied that while a balance would always have to be struck between the rights of the woman and those of the fetus, “a good argument could be made for it to be a federal constitutional right for the unborn child to have a right to live.… I think the child has a right to life from the moment of its conception.”
Both Ralph Witt, on behalf of Chief Jenkins, and Tony Hight advised the judges that they supported Ferdinand Buckley’s desire for a full roll in the case, and the panel allowed Buckley to speak for some time about fetal interests. Then Margie Hames was given several minutes to recapitulate the plaintiffs’ contentions. She returned immediately to Griswold, asserting that “the basic holding of that case … established the basic right to determine the size of one’s family.” For Mary Doe and others struggling with unwanted pregnancies, “abortion should be available to these women as a backup method to make the Griswold holding effective.” She purposely announced that “Mary Doe is present in court,” and went on to conclude by noting that “‘Abortion on demand’ is not our terminology and this is not what we are talking about. We are talking about abortion as a medical procedure and a decision between the woman and her physician.” Sidney Smith broke in to declare that “You either have a basic constitutional right for this that is not subject to control by the state, or the statute is good,” and then further volunteered that no equal protection attack was going to succeed. Hames interjected apologetically that “lawyers are inclined to use the shotgun approach,” and Smith replied with a smile that “We got blasted in this one.” The clock showed almost 12:45 p.m., and Lewis Morgan brought the hearing to a close. “If the court determines to decide this case, if evidence should be considered, we will reconvene it; otherwise, we will pass on the argument.”67
Margie Hames, Tobi Schwartz, Elizabeth Rindskopf and Judy Bourne took Sandy Bensing to lunch at a nearby French restaurant and discussed their reactions. Margie felt fairly confident, especially in light of Smith’s final remarks, that the panel would indeed reach the constitutional merits of the case, but she, like Tobi and Elizabeth, was greatly disappointed and somewhat worried at the panel’s disinterest in hearing any of their factual witnesses. Margie in particular been somewhat surprised by how fetally oriented an approach her former colleague Dorothy Beasley had taken, but before the lunch ended they all agreed that Elizabeth would take charge of preparing the supplemental brief on the constitutional issues that Judge Morgan had so explicitly requested. Filed nine days later, Rindskopf’s submission again reiterated the Griswold emphasis that they had stressed in their initial brief and that both Margie and Tobi had voiced at the hearing. If, with regard to birth control, “the right to make such a family decision is constitutionally protected from state interference before conception, one should ask how does it lose its status as a constitutional right after conception,” Rindskopf tellingly asked.
That supplemental question, however, would not be the final suggestion that the Doe panel would consider, for all four of the opposing parties also submitted supplemental briefs, with Ferdinand Buckley’s and particularly Dorothy Beasley’s being the most significant. Beasley’s statement reiterated, in dramatically stronger language, the fetal emphasis she had articulated at the hearing. She asserted that “the real liberty” sought by the plaintiffs was “the right to destroy a living child without ‘State interference,’” and she alleged that the actual goal of abortion applicants such as “Mary Doe” was “to have someone kill the life developing within her.” Beasley went on to explain that “The child within the woman is not a ‘part’ of her and/or her body; from its earliest stage it is already a boy or a girl, with its own organs, nervous system, digestion, etc.” She contended that “Griswold offers no authority for the proposition that restrictions on abortion are an impermissible limitation of the right of privacy,” and she harshly attacked the plaintiffs’ interpretation of constitutional privacy, alleging that in their view “the right embraces an unlimited freedom to so invade another’s right to privacy that he may be exterminated.” With the conclusion of Beasley’s fervently worded supplemental brief, the trial court record in Doe v. Bolton was complete.68
Less than forty-eight hours after the conclusion of the Atlanta argument in Doe v. Bolton, the Dallas panel of Hughes, Goldberg, and Taylor filed their unanimous decision and opinion in Roe v. Wade. Immediately after the close of the May 22 hearing in Sarah Hughes’s courtroom, the three panel members had retired to her small adjacent library to discuss the case. It was not a room Sarah Hughes had much use for. “I don’t like to go in that library,” she later explained while criticizing the Supreme Court for issuing opinions that “are too long.” “There are some judges that like to write opinions and like to study. I don’t. I have never written an opinion that I didn’t have to write.”
The panel’s private discussion lasted less than five minutes. The three judges had all known each other for years, and they quickly established that they were in almost complete agreement concerning Roe. “It was actually an easy case for us,” Irving Goldberg recalled years later. “The statute we had before us was clearly bad. It made criminal almost any type of abortion by anyone,” including those with strong therapeutic justification. “You cannot tell me,” Goldberg explained, “that a woman who gets pregnant due to rape cannot have the burden removed from her body.” Two decades later, Goldberg described the decision as “almost inevitable,” as one that “just flowed from the statement of the facts.” The attractiveness of a Ninth Amendment basis, particularly in an era when “new concepts were born every day,” stemmed in large part from the undeniably basic recognition that “you just couldn’t deny the woman the right.” “Talk about life, liberty, or anything you want to; you can’t even begin to talk about the constitutional rights if this is prohibited,” Goldberg recounted.
For Sarah Hughes, the issue was even more cut and dried. Asked some years later whether she had been impressed by the plaintiffs’ presentation at the hearing, Hughes forthrightly said “No, I don’t remember what it was. It was just unconstitutional, that’s all. It was a privilege for a woman to decide what she wanted to do, and it was an invasion of that privilege.” Stating her position on abortion a few years after the decision, Hughes explained that “I see no reason for any law. It is between a woman and her doctor, and I wish people would stop talking about it.”
There were no long talks at that brief post-hearing conference. Mac Taylor expressed his concurrence with his more opinionated colleagues, and the trio quickly agreed that since Roe was formally on Hughes’s docket, it would be her responsibility to prepare an opinion stating their views. Hughes indicated that she would prefer to issue an injunction prohibiting any further enforcement of the Texas abortion statutes as well as to hand down the declaratory judgment sought by the plaintiffs, but the more savvy Goldberg said no. To do that would dramatically increase the chances that their decision would be reviewed and reversed, for there were increasing signs that the Supreme Court firmly believed that federal injunctions against the enforcement of state statutes should be issued only in unusual circumstances where officials were engaging in clearcut misbehavior. It would be strategically preferable, Goldberg believed, for the panel simply to hold the Texas provisions unconstitutional and then see how Wade’s office and state officials responded. Mac Taylor agreed, and Sarah Hughes reluctantly consented.
Within little more than a week of that May 22 conference, Hughes sent copies of an initial typescript draft of her opinion to both Taylor and Goldberg’s chambers. As Hughes’s minimalist attitude toward the preparation and significance of written opinions clearly augured, the draft that she circulated to her colleagues was neither lengthy nor elaborate. Irving Goldberg was of course in no way surprised, but Goldberg’s clerk, Clarice Davis, who was accustomed to seeing the work of such renowned Fifth Circuit judges as Louisiana’s John Minor Wisdom, was “appalled” at Hughes’s draft. It did indeed rely upon the Ninth Amendment in much the way that Goldberg had suggested, but it provided little of the additional discussion or analysis that was customary in appellate opinions. Goldberg and Davis drew up a fairly extensive list of changes and amplifications they wanted to see made in the initial draft, and discussed how they might best persuade Hughes to adopt some if not all of their suggestions. Goldberg, after deciding that it might well be disrespectful to his longtime friend if he himself visited her to ask for so many changes, sent Davis off to see Hughes in the hope that she would accept at least some of their prospective revisions.
Sarah Hughes grudgingly accepted several of the improvements that were at the top of Irving Goldberg’s list, but once the scope of Clarice Davis’s mission became clear, Hughes coolly but politely indicated that she had absolutely no interest in pursuing the sort of line-by-line rewrite of her draft that Goldberg and Davis had been hoping for. “When she saw the amount of writing on the paper,” Davis recalled years later, “she said, ‘That’s too much. I won’t talk about that much.’ And so then I said, ‘Let’s start with this,’” but Hughes’s patience expired inside of five minutes. “It just wasn’t the sort of thing she was interested in,” Davis explained. “Judge Hughes was a very impatient lady, very impatient with the niceties of grammatical structure and legal reasoning and scholarship … She was a bottom-line person,” and “She wouldn’t go over the opinion again because she didn’t give a rip.”
Goldberg had told Davis to expect much the sort of reception that she received, and he was bemused rather than angered when his momentarily inconsolable clerk returned to report the seeming failure of her nonetheless partially successful mission. Davis herself wondered whether Goldberg might be willing to prepare a separate concurring opinion of his own to supplement Hughes’s, but Goldberg’s sense of personal and judicial manners again constrained him. “He just didn’t get to say what he wanted to say,” and “he didn’t see anything he could do about it,” Davis later explained. Goldberg himself in subsequent conversations about Roe itself would not go beyond the polite observation that “maybe we should have written more,” but he never shied from expounding a decisive and forthright view of opinion-writing. “If the subject matter permits it, then I think an opinion should be a crusading force,” Goldberg emphasized. “An opinion should have not only a beginning and an end, but a future.”69
What the Roe panel handed down on Wednesday, June 17, came to less than nine pages in the law books, and would hardly merit description as a “crusading force,” but it nonetheless represented a good part of what Linda Coffee and Sarah Weddington had been hoping for. Issued per curiam instead of in the name of any one particular panel member, the panel found that both “Jane Roe” and Dr. Hallford, but not “John and Mary Doe,” had sufficient standing to litigate the case. Both the Ninth Amendment issue and Hallford’s vagueness challenge, the panel stated, posed significant constitutional questions that had to be faced. With regard to the plaintiffs’ most basic complaint that the Texas provisions “deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children,” the panel simply and directly said “We agree. The essence of the interest sought to be protected here is the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.” They quoted from Arthur Goldberg’s concurrence in Griswold, and then avowed that “freedom to choose in the matter of abortions has been accorded the status of a ‘fundamental’ right in every case coming to the attention of this Court where the question has been raised”: Belous, Vuitch, Babbitz, and the South Dakota trial court dismissal in Munson. They quoted from the first two and from former Justice Clark’s law review analysis, and then went on to acknowledge that indeed there were “several compelling justifications for state presence in the area of abortions. These include the legitimate interests of the state in seeing to it that abortions are performed by competent persons and in adequate surroundings. Concern over abortion of the ‘quickened’ fetus may well rank as another such interest. The difficulty with the Texas Abortion Laws is that, even if they promote these interests, they far outstrip these justifications” by prohibiting virtually all abortions. The “Ninth Amendment right to choose to have an abortion is not unqualified or unfettered,” the panel reiterated, but “We need not here delineate the factors which could qualify the right of a mother to have an abortion.” The opinion concluded by formally holding that the Texas provisions were both unconstitutionally overbroad and unconstitutionally vague, and by briefly discussing an earlier Supreme Court decision in explaining why no formal injunction against further enforcement of the Texas laws would actually be issued.70
The Roe ruling was front-page news all across Texas. Linda Coffee told reporters “We consider it quite a victory” and that “Jane Roe” was “very satisfied” with the decision, even though it would not affect her own situation, since she was now just a few weeks away from giving birth. David and Marsha King, as “John and Mary Doe,” told Barbara Richardson of the Dallas Times-Herald that they considered the outcome a victory even though they themselves had been denied standing, and while no comment was forthcoming from Dr. Hallford, Fred Bruner stressed that he himself was “no crusader. I’m just representing my client.” Dr. Hugh Savage called the decision “a step in the right direction” toward full-fledged repeal, but the Austin Women’s Liberation group, commenting in The Rag, warned that the ruling actually meant “very little.” What it did signify, they emphasized, was how everyone’s focus now ought to shift to what sort of new law the 1971 state legislature might enact as a replacement statute, especially since it appeared likely that the legislature would choose reform rather than repeal. The Dallas Times-Herald, for example, termed the court decision “unfortunate” yet called a reform law “long overdue” while nonetheless opposing repeal. Similarly, Fort Worth state senator Don Kennard told the Dallas Morning News that “the feeling and attitude” within the legislature had “shifted a great deal in the last two years,” but observers agreed that while a reform bill would now have a good shot at passage, a repeal one would not.
Perhaps the most surprising reaction to the judicial ruling was offered by Mrs. Peter J. Collora, president of Catholic Women of the Dallas Diocese, who told the Times-Herald that “I have great faith and trust in our courts” and that “this decision is the only one the court could have made. You couldn’t prosecute under those terms. They really were too vague and too broad. Why have a law you can’t enforce?” More predictable but also somewhat confusing were the comments voiced by District Attorney Henry Wade and Texas Attorney General Crawford Martin. On the day after the panel’s decision, Wade said he would appeal the ruling and was confident that the statute would eventually be upheld. He forthrightly added, however, that “I am of the opinion if the law has been declared unconstitutional you can’t try people for it. But we won’t dismiss any pending abortion charges against anyone until the Supreme Court rules.” One day later, however, after he had had more time to focus upon the panel’s decision not to issue an injunction, Wade seemed to step back from his earlier statement by declaring that “Apparently we’re free to try them, so we’ll still do that.” Attorney General Martin seconded Wade’s comment that the ruling would indeed be appealed and emphasized that “I do not agree with the court decision that the Texas statutes are overbroad and vague.”71
Texas doctors initially were not sure what to make of the situation. In Dallas, Parkland Memorial Hospital administrator C. J. “Jack” Price spoke with Wilson Johnston of Wade’s office and was told that no change in the public hospital’s abortion policy should follow from the decision, and several months later the doctor who headed obstetrics and gynecology at Parkland and at Dallas’s University of Texas Southwestern Medical School declared that “the only marked impact of the Roe v. Wade decision was to increase the frustration felt by many of the faculty members of my department regarding the matter of abortion.” Very similar experiences were registered at medical schools and public hospitals in other major Texas cities, and it soon became clear that as a practical matter the Austin women’s evaluation of Roe’s impact—“very little”—might prove far more accurate than many interested observers had initially realized.72
Far more widely publicized than the intensified frustration of the Texas physicians was the remarkable news that the principal governing body of the American Medical Association, which had backed therapeutic reform only three years earlier, had voted by a margin of 103 to 73 to endorse what amounted to a prorepeal position. Also drawing a highly unusual level of national attention was a lengthy new book on the legality of abortion by Daniel Callahan, a thoughtful scholar who emphasized that he had evolved into a repeal supporter in the course of completing his project. Newsweek magazine gave Callahan a rave reception, and the New York Times, which had just run a front-page story declaring that reform statutes had made “barely a dent in the criminal abortion rate,” similarly accorded him significant notice. Abortion laws, Callahan concluded, “should be free enough to place the final decision in the hands of the pregnant woman,” for “abortion on request as a legal position … represents good public and legal policy,” wholly apart from whatever moral preferences different people might have. “The Roman Catholic position does not genuinely allow … consideration of the woman’s welfare or that of her family to have an integral place in the making of abortion decisions,” and such decisions “should be private decisions,” Callahan emphasized. “The goal of a permissive law,” he explained, “should be that of removing the necessity that a woman convince others, who in effect thus sit in judgment upon her, that she ought to be allowed to have an abortion.”73
Much more prominent in the news than either Callahan, the AMA, or the Roe decision in Texas, however, was the watershed July 1 date when New York’s landmark repeal law would take effect. The six weeks leading up to July 1 featured intense debates over precisely how the new statute ought to be implemented, with the New York City Health Department, joined by the New York Academy of Medicine and ASA president Dr. Bob Hall, suggesting that on safety grounds abortions should take place only in hospitals, and not in unaffiliated or “free standing” clinics. Some observers, including Hall, also worried that in the absence of any statutory residence requirement, New York City in particular would be swamped with thousands of abortion-seeking women from across the country. Their pessimistic scenario foresaw significant delays, the hasty emergence of for-profit clinics with slipshod medical standards, and so much potential for chaos and serious injuries to women that the New York state legislature might end up reconsidering the entire statute. “I’m even naive enough,” Hall pointedly added, “to believe that Supreme Court justices read the papers, and that they will wonder why they should legalize abortion.”
Many press accounts pictured Hall as a conservative and abortion clinic supporters such as Alan Guttmacher and Bernie Nathanson as liberals, but Hall’s position was more sophisticated than many appreciated. “I want to see the hospitals forced to perform abortions,” he explained. “If we let them off the hook by setting up clinics, they’ll never accept their responsibilities.” In fact, once July 1 actually arrived, the first few weeks went very smoothly, with no crush in New York City, no plethora of injuries, and an approximate statewide total of about three thousand abortions a week.74 Bob Hall himself, however, was forced to file suit against his own hospital, Columbia Presbyterian, when hospital administrators refused to allow him to abort an unmarried eighteen-year-old woman without approval from her parents. Some hospital executives had not forgiven Hall for his leadership role in the earlier New York court case, but when the new case bogged down in court, the young lady’s procedure was simply performed at another hospital.75
Implementation of the new repeal statutes in Hawaii and Alaska, both of which included residency requirements, received far less attention and involved far more modest numbers than the new system in New York. In California, where a repeal bill sponsored by Anthony Beilenson was going nowhere in the legislature, more and more hospitals nonetheless were clearly but quietly evolving toward what in practice amounted to abortion on request.76 Several other states with reform laws, such as New Mexico, Maryland, and North Carolina, were also witnessing modest yet significant medical liberalization trends,77 and several additional court actions, including a challenge to the Colorado reform law filed by its onetime sponsor, Richard D. Lamm, were also getting underway. One Pennsylvania trial court judge, R. Paul Campbell, citing Griswold and Belous, even went so far as to hold that state’s antiabortion law unconstitutional in a decision vacating the abortion conviction of an already jailed motorcycle mechanic.78
Somewhat more significantly, on July 6 the federal First Circuit Court of Appeals, following up on its March action in releasing peripatetic activist Bill Baird from Boston’s Charles Street jail, reversed his 1967 conviction for distributing vaginal foam, and held Massachusetts’s restrictive birth control statute unconstitutional. Despite the state’s argument that the law was intended to protect people from potentially harmful goods, “it is impossible to think of the statute as intended as a health measure” because of its express exception for married people, the appellate panel observed. The state’s additional contention that prohibiting the distribution of contraceptives to unmarried individuals was aimed at deterring the crime of fornication was equally unpersuasive, the court said, since the maximum penalty for the misdemeanor crime of fornication was three months yet for the felony of distributing contraceptives a criminal could receive up to five years. The panel thus concluded that the law’s real purpose was simply to declare that “it is contraceptives per se that are considered immoral,” and that the statute lacked any other rational basis. Massachusetts responded by promptly announcing that it would appeal the ruling to the U.S. Supreme Court.79
On the final day of July, the Atlanta panel of Judges Smith, Henderson, and Morgan handed down a unanimous decision in Doe v. Bolton. Notwithstanding the several potential obstacles that the jurists had identified at the mid-June hearing, the Atlanta trio, just like their Dallas colleagues, had no difficulty whatsoever in quickly agreeing that the 1968 Georgia reform law was indeed unconstitutional. They likewise readily concurred that while the state could not limit the grounds on which a woman could obtain an abortion, a statutory requirement that hospitals oversee each individual physician’s decisions with some sort of committee approval system, as Georgia did, was certainly constitutional. They too, just like the Dallas court, also agreed that while a declaratory judgment should issue, no formal injunctive relief prohibiting state enforcement should be granted. The panel delegated the drafting of its opinion to Sidney Smith, who had had primary responsibility for Doe since its filing, and along with his law clerk, Jeffrey Nickerson, Smith set to work preparing the decision. Neither Lewis Morgan nor Albert Henderson had any significant changes to suggest when Smith first circulated his draft in late July, and six weeks after the hearing, Doe v. Bolton became the first judicial decision to hold that even a reform statute unconstitutionally infringed upon women’s rights.
“While the Court agrees that the breadth of the right to privacy encompasses the decision to terminate an unwanted pregnancy,” the panel said, “we are unwilling to declare that such a right reposes unbounded in any one individual.” They stated that “although the state may not unduly limit the reasons for which a woman seeks an abortion, it may legitimately require that the decision to terminate her pregnancy be one reached only upon consideration of more factors than the desires of the woman and her ability to find a willing physician.” They indicated some sympathy to Dorothy Beasley’s arguments, saying that “once the embryo has formed, the decision to abort its development cannot be considered a purely private one affecting only husband and wife.” For example, “the legislature might require any number of conditions, such as consultation with a licensed minister or secular guidance counselor as well as the concurrence of two licensed physicians or any system of approval related to the quality and soundness of the decision in all its aspects. It certainly has a clear right to circumscribe a decision made by a woman alone or by a woman and a single physician,” but only “so long as they do not restrict the reasons for the initial decisions.” “The reasons for an abortion may not be proscribed,” Smith’s opinion reiterated in conclusion, but “the quality of the decision as well as the manner of its execution are properly within the realm of state control.”80
Margie Hames reacted to news of the ruling by calling it “great” and “a real victory” while nonetheless expressing regret that the panel had upheld the hospital committee process that in real life was much “too cumbersome.” Judith Bourne said she was “very, very pleased” and considered it “a victory for everyone in the state.” Bourne added that it apparently meant that “no further legislative action will be necessary,” and Dr. Robert A. Hatcher, one of Doe’s medical plaintiffs, joined Hames in noting that with each female applicant still required to undertake “an obstacle race which exposes her to one indignity after another,” their judicial victory, while quite important, was by no means complete. Emory’s Reverend Emmett Herndon struck a similar note, commenting that “At least we won—whether the victory means anything or not.”
Georgia Attorney General Arthur Bolton told reporters after receiving initial word of the decision that “I think we’ll probably appeal it,” but that “I haven’t discussed the matter with our lawyers who handled the case.” Several weeks later Dorothy Beasley indicated that Georgia would indeed appeal, and Judge Smith denied her request that the panel formally stay its decision pending such a move by the state. Awareness of the decision seemed to stimulate a slow increase in the number of therapeutic abortions being approved in Georgia, and a September survey by the state medical association found a clear plurality of doctors—48.9 percent—expressly endorsing abortion “on request,” while only 35 percent opposed it. The association’s lawyer termed that outcome “a surprisingly liberal response” and called the transformation of medical opinion since 1967–1968 “astounding.” Indeed, “seldom has one seen so rapid a change in the opinion of the country on any subject.”81
Just one week after the Doe decision, however, abortion rights litigators suffered their first significant federal court defeat when a special New Orleans panel voted 2 to 1 to reject the constitutional arguments that Roy Lucas and Benjamin E. Smith had put forward on behalf of Dr. Isadore I. Rosen in his effort to stave off disciplinary proceedings by the Louisiana State Board of Medical Examiners. The majority opinion, written by Judge Robert A. Ainsworth, the first Roman Catholic member of the Fifth Circuit Court of Appeals, explicitly rejected the conclusions that had been reached in Belous, Vuitch, Babbitz, and Roe. “Exercise of the right to abortion on request is not essential to an effective exercise of the right not to bear a child, if a child for whatever reason is not wanted. Abstinence, rhythm, contraception, and sterilization are alternative means to this end.” Ainsworth noted that “the root problem in the controversy over abortion is the one of assigning value to embryonic and fetal life,” and asserted that “Babbitz and Roe were decided upon theories of life and being which a large part of this country does not entertain.” Ainsworth concluded that “we are not persuaded that the Louisiana abortion laws infringe on any fundamental principle as understood by the traditions of our people,” and “we do not recognize the asserted right of a woman to choose to destroy the embryo or fetus she carries as being so rooted in the traditions and collective conscience of our people that it must rank as ‘fundamental.’”
Ainsworth’s view was directly rebutted by the interpretation of Griswold offered by Rosen’s sole dissenter, District Judge Fred J. Cassibry, who emphasized that Griswold “rested upon the broadest and most sweeping principles of substantive constitutional law.” Griswold, he argued, “contains a broad command. It says, to this and other courts: You must protect the privacy and intimacy of family life, for such relationships lie at the very core of a free society.” He added that “in some ways the right to have an abortion is even more compelling than the rights involved in Griswold,” and noted that indeed there were two fundamental rights involved in a woman’s abortion decision: “the mother’s autonomy over her own body, and her right to choose whether to bring a child into the world.”82
Lucas and Smith moved to appeal their New Orleans defeat, and several weeks later the federal three-judge panel considering the similar declaratory challenge to Missouri’s abortion statute dismissed that suit on the grounds that “the complaint merely seeks an opinion on the construction of the statutes.” As the Missouri plaintiffs prepared to appeal that loss to the U.S. Supreme Court, new declaratory cases against additional state abortion statutes were filed in federal courts in Utah, Pennsylvania, and Ohio. Some consideration was also being given to instituting a declaratory action in Massachusetts, but in the minds of Roy Lucas and most other interested lawyers, the appellate prospects for both Roe and Doe were far and away the two most pressing concerns.83
In the immediate aftermath of the Roe panel decision and the comments by Wade and Texas Attorney General Martin that the defendants would appeal, the plaintiffs similarly considered whether they should appeal the panel’s refusal to enjoin any further enforcement of the Texas statute. In light of several almost contemporaneous Supreme Court procedural rulings, Roe’s technical status was such that while Wade and Martin would have to appeal their declaratory loss to the Fifth Circuit Court of Appeals, the Dallas panel’s denial of injunctive relief allowed the plaintiffs to appeal directly to the Supreme Court. Linda Coffee and Sarah Weddington had initially been fearful of the time and expense that a full-fledged review of Roe by the Fifth Circuit in New Orleans would entail, and hence they were relieved as well as grateful when Roy Lucas made contact and explained that an immediate appeal could be lodged with the Supreme Court. John Tolle of Wade’s office had filed a formal notice of appeal to the Fifth Circuit in mid-July, followed shortly thereafter by both Fred Bruner for Dr. Hallford and Linda for “Jane Roe” and the “Does,” but in mid-August, just as the attorney general’s office was signaling Tolle that they would take primary charge of the appeal, Coffee and Bruner moved to have Roe considered by the U.S. Supreme Court. Lucas had also volunteered to take the lead in preparing the initial jurisdictional statement that would be due at the high court by early October, and with Coffee and Weddington happy to accept his offer of assistance, primary responsibility for Roe’s appeal quietly shifted from Dallas to New York.84
In late August, Lucas wrote Fort Worth’s Dr. Hugh Savage to request financial support for the Roe appeal and to explain to him that Coffee and Weddington had “turned it over” to Lucas’s Madison Institute. Savage was on the verge of winning Texas Medical Association (TMA) endorsement of a repeal bill for the upcoming 1971 legislature, and a statewide poll showed better than two-to-one popular support for at least a reform measure. The head of the Texas Catholic Conference, Callan Graham, told reporters that “no law would be an improvement over either the existing law or the liberalization approach,” and the Dallas women’s group, which had just changed its name to the Abortion Education Committee of Dallas, continued to attract significant prorepeal news coverage. Norma McCorvey, having given birth to the “Roe” baby, resumed her peripatetic life-style, and Marsha King, faced with another unintended and traumatic pregnancy, found herself having to make a return trip to the same Mexico City clinic she had visited in late 1969.85
On October 6, Lucas filed a thirty-three-page jurisdictional statement formally asking the U.S. Supreme Court to hear the plaintiffs’ appeal of Roe v. Wade. He pointed out to the justices that “Griswold has been applied in the abortion context by numerous state and federal courts,” and asserted that Roe’s substantive questions “are novel issues of profound national import, affecting the lives of many thousands of American citizens each year.” Lucas devoted seven pages to contending that the Dallas panel should have granted injunctive relief, and three pages to attempting to resuscitate the “Does’” standing, but he stressed several times that at the core of his constitutional argument lay “the reasoning of Griswold.” Alluding deftly to how Griswold did not expressly speak to the rights of unmarried individuals, Lucas emphasized nonetheless that “Under Griswold, it is clear that a husband and wife are constitutionally privileged to control the size and spacing of their family by contraception.” Several weeks later Jay Floyd of the Texas Attorney General’s office filed a modest seven-page response to Lucas’s submission, but Floyd’s reply was silent on the constitutional questions and instead argued that “Roe’s” claim was moot, that there should be no federal court interference in the state’s prosecution of Hallford, and that the entire case should first be considered by the Fifth Circuit Court of Appeals.86
In Texas, a victorious Hugh Savage appeared before a legislative committee on behalf of the TMA to announce that “We favor a complete repeal of the present law,” and Claude Evans’s Dallas clergy counseling service drew expanded public attention and assisted in an increasing number of referrals, with many of the women being directed to a credible Unitarian physician practicing in a small town ninety minutes southeast of Dallas. In mid-November the Abortion Education Committee hosted a Dallas meeting of abortion activists from across the state, and the participants voted to launch a new confederation, the Texas Abortion Coalition, in order to press for repeal and oppose any reform bill. “The greatest disaster for our cause would be the substitution of the ALI model law or some variation thereof,” the Dallas women warned. “The small reform is truly the enemy of the big one. We are unalterably opposed to the therapeutic abortion law.” Any such legislative move would be “a step backwards,” particularly since it appeared, as Sarah Weddington indicated at the Dallas symposium, that the passage of any new Texas abortion statute would inescapably moot Roe’s challenge to the present one. Only by insisting upon repeal, or nothing, would the Texas activists help advance what Dallas’s Ginny Whitehill termed “freedom of choice for the individual.”87
While Roy Lucas had been eminently successful in his effort to take command of the Supreme Court appeal of Roe v. Wade, he fared much more poorly when he attempted to do the exact same thing with Doe v. Bolton. Just as in Roe, the Doe attorneys, once they had reflected upon their highly incomplete victory, decided, after some internal disagreement, that the three-judge court’s upholding of the hospital abortion committee review process ought to be appealed. As with Roe, the Atlanta panel’s refusal to order injunctive relief gave the plaintiffs an opportunity for direct appeal to the Supreme Court, and on August 28 Lucas phoned Margie Hames to volunteer to also prepare Doe’s jurisdictional statement. Hames and her colleagues had already agreed that Margie, with advice from regional ACLU attorney Reber Boult, would take charge of preparing the Doe appeal, and Hames politely but firmly told Lucas that she and Boult were more than capable of doing the work without additional outside participation. Lucas immediately responded with a three-page letter admonishing Hames for failing to appreciate that the Doe appeal was so crucial as to deserve the best possible preparation. She and Boult had neither the depth of experience with the issue, nor the necessary amount of time, that Doe would receive if Lucas himself took charge, he asserted. Whatever the Supreme Court might do with Doe would affect not just Georgia but all other states with reform statutes, and thus “you have personal responsibility to all of the individuals in the twelve ALI states to put aside any consideration other than the need for the utmost in preparation, writing, and comprehension of the issues in the case,” especially “when someone else with three years’ background in the area is willing to do the work.” Additionally, Lucas claimed, what would happen if Doe was set for oral argument in the Supreme Court and Hames had to respond to far-reaching questions from the justices: “will you be able to give a state-by-state account of the existing legislation, and litigation in both state and federal courts?” If Hames would accede, she and her colleagues could of course still have their names on the brief, Lucas offered in closing. “The content of the brief, however, is too important to be lightly put aside, unless you are willing to put aside with it the interests of several thousand poor women who cannot afford what should rightfully be theirs.”88
Lucas’s presumption was motivated in some part by the Madison Institute’s weakened financial condition as well as by substantive concerns and a very large dose of simple ego. As Morris Dees and Lucas had slowly grown further and further apart, Dees’s involvement with the Institute had slackened and by mid-1970 his donations had dropped to three thousand dollars per month. The Institute had also received some support from Planned Parenthood and from the United Methodist Church’s Board of Christian Social Concerns, but by the fall of 1970 Lucas was highly uncertain as to where funds for 1971 would come from, especially if other litigators were handling the case or cases that potential donors thought most likely would present the U.S. Supreme Court with the crucial constitutional questions. By late in the fall Emko vaginal foam manufacturer Joseph Sunnen had promised fifty thousand dollars for 1971, and John D. Rockefeller III the modest sum of fifteen thousand dollars, but matters were considerably shakier than Lucas had envisioned one year earlier. Lucas personally was far from poor, in part because of the private income he was receiving for his role in assisting with Dr. Vuitch’s Supreme Court appeal, but Lucas was increasingly bitter at how small a part Planned Parenthood and Harriet Pilpel were playing in support of cutting-edge cases and at how little interest Larry Lader’s NARAL had in actual litigation. Relations between Lucas and Lader had been strained since the spring, when Lader and others had first learned that Lucas privately was representing one of the more conspicuous for-profit New York-based commercial referral services, and by fall the tensions had grown significantly. Finally, in late October, Lucas resigned from his somewhat pro forma position as chairman of NARAL’s legal committee, citing his need to do more toward fund-raising for the Institute.89
Hames’s rebuff of his brazen request left Lucas highly irritated, and the very next day he wrote California’s Alan Charles to complain that Doe’s lawyers “leave something to be desired” and that “too much is at stake” for Hames to handle the appeal. He griped about what he viewed as Hames’s relative ignorance of both constitutional and abortion issues, and a week later, in the course of soliciting the Rockefeller Foundation for Institute funding, Lucas again groused about how oftentimes “local counsel have insufficient training to handle a major federal case with any degree of professional competence.” The Georgia lawyers, Lucas claimed, “won a little victory, in spite of their performance, but the Supreme Court is a big league arena,” and it would be regrettable if the most knowledgeable litigators were relegated to filing amicus briefs with “the kind of arguments which should have been thoroughly made in the first place.”90
Hames was unaware of the intensity of Lucas’s resentment, and with Boult’s counsel she forged ahead both with Doe’s Supreme Court appeal and with two astute but unsuccessful efforts to build Doe’s evidentiary record and perhaps persuade the Atlanta panel to reconsider its refusal to void the hospital committee system. In mid-September Hames moved to add a new plaintiff to Doe, an unmarried young woman whose abortion request had just been rejected by Atlanta’s Georgia Baptist Hospital. She also tried to launch an additional action against Grady Memorial Hospital on behalf of another young woman who had been turned down there, explaining to Judge Smith that with regard to the committee requirement, “we feel that Mary Doe and members of her class did not have their ‘day in court’ on these issues.” That contention notwithstanding, in mid-October the three-judge panel issued a brief supplemental opinion affirming their earlier endorsement of the hospital review process. Three weeks later, just as her husband Joel was once again embarking on a string of child-molestation assaults, Sandra Bensing gave birth to her “Doe” baby, which was put up for adoption. Shortly thereafter, on November 14, Hames and her colleagues filed Doe’s jurisdictional statement in the Supreme Court, and several weeks later Dorothy Beasley, on behalf of Attorney General Bolton, responded with a motion contending that the appeal should be dismissed.91
The third federal three-judge court abortion decision potentially headed to the Supreme Court was Wisconsin’s Babbitz v. McCann. Following the Milwaukee panel’s March declaratory judgment holding the state’s antiabortion statute unconstitutional, Dr. Babbitz had again renewed his previously unsuccessful request that the federal court also enjoin Milwaukee County District Attorney E. Michael McCann from continuing to prosecute him in state court. Just as in Roe and Doe, U.S. District Judge Myron L. Gordon had reiterated the panel’s refusal to intervene directly in the prosecution, but Babbitz’s Milwaukee attorneys failed to appeal from the denial of the injunction, thus negating the possibility of obtaining direct review by the Supreme Court. District Attorney McCann had appealed the panel’s declaratory decree to the high court, but just as Lucas and other knowledgeable observers anticipated, in mid-October the justices dismissed the appeal on the grounds that in the absence of any injunction McCann’s appeal of the declaratory ruling rightfully belonged in the Seventh Circuit Court of Appeals in Chicago. McCann responded by scheduling Babbitz’s criminal trial for late November, and Washington attorney Joseph L. Nellis, Dr. Vuitch’s lead lawyer, was brought in to try to redeem Dr. Babbitz’s federal court prospects. Nellis presented a new petition for injunctive relief to the three-judge panel at an October 28 hearing that Roy Lucas also attended on behalf of Edie Rein’s Wisconsin Committee to Legalize Abortion. The panel members, particularly Circuit Judge Otto Kerner, gave McCann’s representative an extremely frosty reception, stating that they believed the popularly elected district attorney was proceeding with Babbitz’s prosecution in the face of their earlier opinion out of political motivation. Three weeks later the federal panel took the rare step of formally prohibiting McCann from proceeding with Babbitz’s trial, and when the district attorney protested that order to the Seventh Circuit, the appeals court swiftly affirmed their lower court colleagues. McCann reluctantly obeyed while appealing the entire matter to the Supreme Court.92
While the Babbitz litigation was proceeding, another abortion battle that also had begun in the spring was similarly coming to a climax. Washington state’s popular referendum vote on abortion repeal would take place on election day in early November, and starting back in April Seattle Archbishop Thomas A. Connolly had begun a major effort to quietly mobilize as much opposition as possible. Four diocesan planning meetings, he explained in a letter sent to every priest in the state, had decided that “the campaign must operate on two levels.” One would be “the broadly inclusive citizen organization, without denominational or sub-group identity”; the second would be efforts openly sponsored by the Roman Catholic church itself. Each priest was directed to attend a full-day educational session on the campaign, and by midsummer the ostensible “citizen organization,” named Voice for the Unborn, was readying a serious advertising drive. Its first large-scale venture was billboard displays picturing a four-month fetus with the caption “Kill Referendum 20, Not Me.” Archbishop Connolly told his priests that it represented an “excellent campaign” and that Voice for the Unborn was “desperately in need of funds” to expand it, but public outcry was so great that the repeal opponents shifted to a different slogan. Their new motto, “Let Him Live,” unsurprisingly drew additional criticism for its glaring gender premise, and one commentator on the referendum campaign later noted that “Voice for the Unborn was constantly on the defensive responding to charges of tasteless tactics.” When the November 3 election returns were tallied, the abortion repeal measure, which incorporated a ninety-day residency requirement and a sixteen-week ceiling, attracted more than 56 percent popular support and passed by a margin of more than 130,000 votes. The earlier fears of national activists that such a referendum might prove disastrous had been resoundingly disproven, and repeal forces had won perhaps their most politically important victory so far.93
Not long after the Washington state triumph, the New York Times reported that “A dramatic liberalization of public attitudes and practices regarding abortions appears to be sweeping the country” and cited the Washington tally as notable evidence. It quoted one Catholic priest as saying “I’m certain there has been a great swing among Catholics toward favoring abortion reform,” and concluded that Catholics’ “traditional hard-line opposition to abortion appears to be declining.”94 One place where that did not seem to be happening, however, was Minnesota, where Dr. Jane Hodgson’s criminal indictment back in May for having terminated Nancy Widmyer’s rubella-scarred pregnancy had survived multiple courtroom challenges and was now proceeding to trial. Both the Minnesota Supreme Court and the local U.S. District Court had refused to block Ramsey County District Attorney William Randall’s prosecution of Hodgson, and by late in the summer Dr. Hodgson had herself gone to New York to recruit Roy Lucas to join Minnesota attorney Stewart Perry in handling her defense. Lucas had signed on more than willingly, for not only was Hodgson a bright, charming, and courageous client, but her case “could not be better,” as it posed abortion’s basic constitutional issues in the most compelling context. In late September Lucas and Perry appealed both the federal court’s and the state supreme court’s refusals to intervene to the U.S. Supreme Court, and in early October Lucas asked the high court, first in one appeal and then in the other, to issue an order postponing Hodgson’s mid-November trial. “The central question presented is the application of Griswold,” he told the justices, but on October 19 the first request was denied with only Justice William O. Douglas dissenting and on November 6 the second one was rejected without comment.
Once it was certain that the constitutional challenge posed by Jane Hodgson’s high stakes test case would be frontally addressed by the Supreme Court only after her trial, if at all, she forthrightly took the position that the trial hence ought to result in her conviction so that the case could be appealed and thus might still serve as a vehicle for obtaining Supreme Court review of the basic constitutional issues. If by some chance such a conviction was subsequently upheld rather than reversed, the price would likely include the loss of her license to practice medicine, but Hodgson valiantly insisted that she would take that risk, even though Stewart Perry was highly uncomfortable at helping defend a client who was frankly hoping to be convicted. Hodgson expressly waived a trial by jury so as to avoid the possibility that sympathetic citizens would derail the case by acquitting her, and when the trial commenced on November 12 before Judge J. Jerome Plunkett, the only witnesses whom the prosecution found it necessary to call were Nancy Widmyer herself and the pathologist who had routinely examined the rubella-deformed fetus. Widmyer was similarly the lead defense witness, followed by Dr. Joseph H. Pratt of the Mayo Clinic and two other physicians who also testified in support of Hodgson’s decision that it had undeniably been in her patient’s interest for her to proceed with the abortion. Jane Hodgson herself was the final defense witness, and on Thursday, November 19, after hearing all of the testimony, Judge Plunkett announced just the verdict Jane Hodgson had been hoping for: guilty. The following day Plunkett commended Hodgson’s courage while pronouncing a suspended sentence of thirty days in jail, and Lucas made plans to appeal the conviction to the Minnesota Supreme Court in the hope that it would then be on its way to the U.S. Supreme Court as quickly as possible.95
The first abortion case which was scheduled for a full hearing by the U.S. Supreme Court, tentatively in mid-December, was the government’s appeal of Judge Gesell’s voiding of the D.C. abortion statute in United States v. Milan Vuitch. Just as Roy Lucas had succeeded in taking charge of Jane Hodgson and Roe’s appellate prospects, and had tried so forcefully to do the same with Doe, by midfall he had also parlayed his initial role in preparing Vuitch’s Supreme Court brief into an increasingly dominant role in representing Washington’s premier abortion provider. Lucas had already submitted an amicus brief on behalf of ASA to the Maryland appellate court which was considering an appeal of Dr. Vuitch’s one actual conviction, and Vuitch was now facing additional criminal charges in D.C., subsequent even to the Gesell ruling, largely because of a May abortion which had resulted in the death of a seventeen-year-old girl.96
In late September Lucas, along with Nellis and Vuitch’s original attorney, Joseph Sitnick, submitted to the U.S. Supreme Court their principal brief contending that the high court did have jurisdiction of the appeal and that Gesell’s ruling should be affirmed. It repeated Lucas’s now-standard line that “Griswold is not an isolated decision confined to its facts, but is one in a continuing line of cases involving various aspects of personal privacy and family autonomy,” and went on to cite retired Justice Tom Clark’s law review article and prior Supreme Court decisions reaching from Meyer and Pierce in the 1920s to Skinner v. Oklahoma, the 1942 antisterilization ruling, and the 1969 First Amendment holding in Stanley v. Georgia. It contended that the D.C. antiabortion statute gave “little consideration to a woman’s feelings, pains, thoughts, and emotions. It impinges severely upon her dignity, her life plan, and her marital relationship if she has one. It is a first order invasion of her privacy with irreparable consequences,” and in light of prior Court rulings such as Skinner, if “the right to have offspring enjoys a constitutional presumption of protection, should not a right not to have offspring be of equal stature under the Constitution?” In short, Lucas asserted, “there are certain sacred rights associated with individual privacy and the marital relation,” just as the additional lower court holdings in Belous, Roe, and Doe had also acknowledged.97
Lucas had his hands full with a multiplicity of legal tasks, ranging from the Babbitz appearance in Milwaukee to a three-judge court hearing in Toledo on the declaratory case against Ohio’s abortion law just the day before Jane Hodgson’s trial commenced, but Vuitch and his wife Florence, who actively managed all of the business aspects of her husband’s medical practice, had decided by sometime in October that they wanted Lucas rather than Joe Nellis to present the oral argument in Vuitch in the U.S. Supreme Court. In part their decision stemmed from tensions with Nellis over legal fees, just as they had likewise previously quarreled with Joseph Sitnick, but more fundamentally their desire stemmed from Lucas’s undeniable expertise and from his pronounced eagerness to take on the lead role in their case too. Dr. Vuitch mentioned his preference to Nellis in late October, and on November 3 Vuitch filed a formal motion with the Supreme Court asking that Lucas rather than Nellis be allowed to appear on his behalf. Copies of the motion were sent to the government attorneys in the case, but not to Nellis or Sitnick, Vuitch’s own supposed attorneys of record. The motion explained to the Court that Lucas is “the author” of Vuitch’s brief and that in determining who should speak for him, Vuitch believed that it was of “particular importance” that Lucas was also “principal counsel in three other appeals to the Court this term involving very similar issues”—Roe and the two Hodgson cases. The request was looked upon favorably in the chambers of at least one justice, but in mid-November Joe Nellis, even without knowing about Vuitch’s motion, sent Lucas an exceptionally tough and threatening letter demanding his “immediate withdrawal” from all legal matters pertaining to Dr. Vuitch. Nellis already had been extremely angered by Lucas’s turning up in Milwaukee for the Babbitz hearing, and now he charged Lucas with “unprofessional and unethical” actions in both the Vuitch and Babbitz contexts. Nellis alleged that Lucas had told the Vuitches that Nellis’s Milwaukee performance on behalf of Dr. Babbitz had left something to be desired, and Nellis asserted that such comments would be “among the most unethical actions” any lawyer could commit. Nellis charged that Lucas’s behavior was motivated by the potential fees involved—rather than by the credit which would stem from a Supreme Court success—and closed the letter by warning that if Lucas failed to respond, he and Sitnick would “take whatever measures seem to us to be necessary and desirable” with bar association disciplinary committees and with the courts.
Four days after sending that missive to Lucas, Sitnick in the course of a phone conversation with Supreme Court chief deputy clerk E. P. Cullinan learned for the first time about Vuitch’s November 3 motion to replace Nellis with Lucas at oral argument. Nellis and Sitnick fired off an immediate letter of protest to the Court, followed several days later by a formal response to the Vuitch request in which they labeled Lucas “inexperienced” and said they would pursue a professional grievance. By the time that response arrived, however, the clerk’s office determined that this brawl had gone far enough, and phone calls went out to at least two of the participants telling them that the dispute should be halted immediately. Before the day was out both Dr. Vuitch and Joseph Nellis submitted letters formally withdrawing their earlier filings for and against Lucas’s participation at oral argument, and both men expressed agreement, as Nellis put it in his own letter to the clerk’s office, that “the case will be orally argued by myself and a third party to be selected by Dr. Vuitch, not Mr. Roy Lucas.”98
As the smoke began to clear, the clerk’s office postponed the Vuitch argument from mid-December to the second week of January, and Lucas, with Vuitch’s permission, recruited his friend and former mentor, New York University Law School professor Norman Dorsen, to enter the case as the second attorney who would share the Supreme Court argument with Nellis. Lucas licked his wounds quietly, but took deep pleasure when the Maryland appellate court reviewing Vuitch’s criminal conviction issued an opinion the very same day the Supreme Court fracas came to a head that expressly criticized Joseph Nellis. Vuitch’s attorney, the Maryland panel said in affirming the conviction, had erroneously failed to raise the basic constitutional questions that were “readily apparent prior to trial” until the proceeding’s latter stages, “and then only by an inappropriate motion … submitted without comment, or illuminating argument.”99
Lucas understandably took far less pleasure, however, when a 2 to 1 negative decision in the Ohio declaratory judgment case was handed down several weeks later. The majority opinion, by District Judge Don J. Young, focused upon the importance of the fetus and was sarcastically dismissive of the plaintiffs’ constitutional privacy arguments. “Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it,” Young held. “It may seem cruel to a hedonist society that ‘those who dance must pay the piper,’ but it is hardly unusual,” Young said in a tone not generally found in federal court decisions. “If it is known generally that an act has possible consequences that the actor does not desire to incur, he has always the choice between refraining from the act, or taking his chance of incurring the undesirable consequences,” Young added. “This is peculiarly true with respect to the bearing of children. If one gambles and loses, it is neither statute nor constitution that determines the price, or how it shall be paid. The result is not punishment, but merely the quid pro quo.” District Judge Ben C. Green argued in dissent that Griswold stands for “the proposition that the interests of the embryo or fetus must be balanced against the interests of the pregnant woman,” and cited Tom Clark’s article before observing that “I do not consider the protection of an embryo in its early stages of existence as a compelling state interest.” Green concluded that “a woman has the private right to control her own person, which necessarily encompasses the fundamental right to choose whether to bear children.”100
The same week that the Ohio decision came down, the long-delayed oral argument in Lucas’s New Jersey declaratory judgment suit and a companion case that also had filed nine months earlier finally took place. Attorney Nancy Stearns told the federal three-judge panel that “any woman who feels she needs an abortion has a constitutional right to one,” but the New Jersey litigation was now so far behind Roe and Doe that it was almost guaranteed to not be the case that would generate a constitutionally definitive Supreme Court abortion ruling. Lucas, having been denied a starring role in Vuitch’s Supreme Court argument, was now significantly more convinced than ever before that the high court would not use Vuitch to provide a decisive decision. Now it seemed “most unlikely” that Vuitch would “have any impact” beyond the District of Columbia or be resolved on any basis broader than the vagueness holding made by Judge Gesell, Lucas told Texas’s Hugh Savage while reiterating the potentially paramount importance of Roe and his need for funds. Although only Jane Hodgson’s case was absolutely certain to force a clear decision on the central constitutional issues, if her conviction was indeed sustained by Minnesota’s highest court, her possible appeal would reach the Supreme Court only well after it had decided or disposed of Roe and Doe in some fashion. “In my judgment,” Lucas told Savage, “the Texas case will be the turning point. A broad decision in this case can have impact across the United States.”101
In retrospect, 1970 would undeniably appear as the definitive year in America’s abortion revolution. But just before the U.S. Supreme Court would hear its first abortion case ever, a once-prominent but now largely forgotten relic from another era would quietly be discarded. On January 8, 1971, four days in advance of Vuitch’s presentation in the high court, President Richard M. Nixon signed into law a measure legislatively repealing the ninety-eight-year-old federal anticontraception statutes. Sponsored in the House of Representatives by a Texas congressman who ostensibly supported another kind of repeal as well—whether to give birth to a child “should always remain a matter of individual choice,” George Bush had written one constituent two months earlier—the new enactment rescinded the statutory legacy of Anthony Comstock. Still ahead, however, lay the far more momentous step that would finally eviscerate the ghost of P. T. Barnum and truly fulfill the legacy of Kit Hepburn.102