Roe v. Wade
In 1969, a 21-year-old Texas woman named Norma found herself sitting across a restaurant table from two young Dallas attorneys, Linda Coffee and Sarah Weddington. Norma was more than down on her luck: ward of the state as a child, married and divorced by age sixteen, and hated by her family after coming out as a lesbian. She suffered for years from problems with drinking and drugs. She’d had and lost two children already—the first to her mother, the second a stranger’s adoption. And now she was pregnant with her third.
Linda Coffee and Sarah Weddington, the lawyers, had recently begun advocating for women’s reproductive rights, and they were looking for a plaintiff to help build a case to bring to trial. At this time, abortion was only legal in the state of Texas “for the purpose of saving the life of the mother.” The lawyers Coffee and Weddington wanted to challenge this ban, but to do so, they needed testmony from a willing Texas women who was seeking an abortion. That’s where Norma came in.
Norma’s full name was Norma McCorvey, but her two lawyers quickly filed a class action suit based on her case, giving Norma a pseudonym in the process – Jane Roe. The case eventually made its way to the Supreme Court in 1970, and the decision reached there, has made it one of the most famous cases in American legal history, and in the history of women’s rights. It is fought over in the public debate over the legality of abortion to this very day. And because of some of the specifics in the ruling, it may be overturned within the next few years.
The Roe v. Wade case is complicated, and the history behind it is complicated. Very complicated. Norma McCorvey’s life story is also very complicated. In this episode, we’re going to be looking into the development of the case, and specifically Norma McCorvey’s life. Both the Roe case and McCorvey’s life are far too complex to warrant the easy generalizations and certainties that I hear people employ all the time to talk about them. The specifics of the Supreme Court’s Roe decision in 1973 are knotty and difficult to untie.
But the case can also be used to help us understand why history is much more complicated than most people think. History lacks those easy answers that people seem to want so much. History is not a treasure chest that can be thrown open, Indiana Jones-style, revealing one true answer and one solid set of facts.
I need to make a disclaimer here, however. I am not an expert on the history of abortion, US constitutional history, or the history of women’s civil and reproductive rights. The basics of these stories are complex enough, and can’t be made plain in one podcast episode. And so, I encourage you to follow up with the readings and other resources I’ve listed in this episode’s blog post on www.professorbuzzkill.com.
Born in small-town Louisiana, Norma was the daughter of a TV repairman and a violent, alcoholic mother. When she was a little older, her family moved to Houston, where she briefly attended a Catholic boarding school. But after several run-ins with the law—including robbing a gas station and running away with a friend to Oklahoma City—she was thrown out of that boarding school and put into the State School for Girls in Gainesville, Texas.
According to her own auto-biography, her time at the State School for Girls was the happiest of Norma’s life. So much so that every time she was allowed to go home, she would do something bad just so she could be sent back. Her family’s life at home was not much easier. Her father abandoned them when Norma was a young teenager, and this left the family in dire financial straits. So, when, at age 15, Norma was released from the State School for Girls for the final time, she was sent to live with her mother’s cousin, who allegedly raped her every night for three weeks. When her mother found out, her rapist convinced her mother that Norma was lying.
When she was 16, Norma got a job in a restaurant. It was there she met Woody McCorvey, who was seven years older than her. They were married that year, she was 16, and he was 23. She became pregnant, but before the baby was born, Norma left Woody and moved in with her mother, after Woody had allegedly assaulted her. The baby, named Melissa, was born in 1965, but it wasn’t easy on Norma. And it was then that she developed a severe drinking and drug problem. If that were not complicated enough, it wasn’t long after Melissa’s birth that Norma came out to her mother as a lesbian.
From the evidence available, it appears that Norma’s mother thought that Norma was wild, out-of-control, and an unfit mother. It also appears that she didn’t believe Norma’s lebianism was genuine and sincere. It was just another way, she thought, to behave extremely badly to get more attention.
When Norma came home after a weekend of visiting friends, her mother replaced Melissa with a baby doll in Norma’s arms while she slept off another one of her alleged nights of alcohol and drug excess. She then hid the baby somehow, probably with friends or relatives, and reported to the police that Norma had abandoned Melissa. It’s unclear how all this happened, and the police do not seem to have acted on the mother’s report. But it is perfectly clear is that Norma lived in a chaotic environment, and that her excessive social life made it only more chaotic.
After tricking Norma into signing adoption papers, her mother obtained sole custody of Melissa, and threw Norma out of the house. The following year, Norma became pregnant again, this time giving the baby up for adoption on her own.
It’s 1969. Norma has found herself pregnant for a third time, and knew she couldn’t go through the pain of childbirth and potentially losing her child through adoption again. She couldn’t claim that the pregnancy threatened her life, so she tried to get an illegal abortion. But the clinic had been closed by authorities. Her doctor suggested she consult with an adoption lawyer who might know other lawyers working toward overturning the Texas ban. In hopes of being able to obtain a legal abortion, Norma ended up as the plantiff who agreed to work with Dallas lawyers Linda Coffee and Sarah Weddington.
In 1970, Coffee and Wedding filed a lawsuit in the US District Court for the Northern District of Texas on behalf of McCorvey, under the alias of Jane Roe. The defendant was Dallas County District Attorney Henry Wade (the “Wade” in the case’s name). On June 17th, a 3 judge panel of the district court unanimously declared the Texas anti-abortion law unconstitutional, finding that it violated the right to privacy found in the US Constitution’s ninth amendment.
That decision was appealed by the State of Texas all the way up to the US Supreme Court. It took three years of trials to get it there. And, of course, Norma’s pregnancy, the reason she was seeking a legal abortion, could not be terminated. Norma’s third child was born, and immediately adopted.
On January 22, 1973 the supreme court issued a 7 – 2 decision in favor of Roe, striking down Texas’s abortion ban as unconstitutional. There are many things that could be said about the proceedings of this case, but this isn’t a legal podcast. But what’s important to note here is that the court reasoned that outlawing abortions would infringe on a pregnant woman’s right to privacy (and therefore her ninth amendment rights under the US Constitution), and for these other reasons: “having unwanted children may force upon the woman a distressful life and future,” it may bring about psychological harm, caring for the child may tax the mother’s health both physically and mentally, and there may be “distress for all concerned, associated with the unwanted child.”
But the court didn’t necessarily rule that a woman’s right to abort her child was absolute, meaning at any time during the pregnancy. The court opted instead for a trimester model (dividing a 9-month pregnancy into three relatively distinct periods). This trimester model, however, was not meant to decide when a fetus becomes a person, and in fact the court found that there was no indication that the Constitution’s use of the word “person” as far as right to life was meant to include fetuses. Here’s what the majority opinion said: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
But in terms of enforcing the law—allowing women to seek abortions but not indiscriminitely — the court decided to use a trimester model.
During the first trimester the government could place no restriction on a woman’s ability to choose an abortion other than minimal medical safeguards like requiring it be performed by a licensed physician. In the second trimester, the state could enact medical regulations on the procedure so long as they were reasonable and “narrowly tailored” to protecting the health of the mother. The third trimester was when a fetus was generally considered viable, and the court said that, from here on, the state had an interest in protecting prenatal life and could prohibit abortions except when the mother’s life or health were at risk.
In the minds of many people, this is where the story ends. The Roe v. Wade case was won, and abortion became legal. But the reality is much more complicated. Just consider the trimester model. Even within the Court’s definition of the second and third trimester, there was room for argument over the meaning of the language in the decision.
And other aspects of the Roe v. Wade “language” led to other major legal challenges to the detail of abortion laws in various states. Some states were able to enact restrictions on what type of doctor was allowed to perform abortions, some states were able to ignore (or not adequately protect) a woman’s state of mental health (and the effect a birth might have on her continued mental health) when considering whether an abortion was legal in the third trimester. By my calculation, there have been at least four major Supreme Court cases dealing with individual state restrictions on abortion since Roe v. Wade. (It would be impossible to go through each of them in a single podcast episodie.) Each time, the right to an abortion was upheld, but, it seems to me, for different legal reasons. Add to that the fact that at least one of the rulings, 1992’s Planned Parenthood v. Casey was a “plurality decision” rather than a “majority decision,” adds a whole new layer of complexity that means state legislatures can pick away at various abortion provisions, in an effort, perhaps, to wait until the philosophical/political composition of the Supreme Court changes as justices retire and are replaced by new justices.
Almost as complex, was Norma McCorvey’s life in the 1980s and 1990s. She wrote a book, entitled “I Am Roe,” and worked in abortion clinics until 1995. That year, she became an evangelical Christian, quit her job at a women’s health clinic, and joined the anti-abortion group, Operation Rescue. She became a Catholic in 1998, and continue to campaign very publically for anti-abortion/right-to-life organizations well into the early years of the 21st century. Throughout her later life, she claimed she was a “pawn” of two young and ambitious lawyers, Linda Coffee and Sarah Weddington, who, in Norma’s 1990s version of her story, were just looking for a plantiff with whom they could challenge Texas abortion laws by any means necessary. She died relatively recently, in 2017 at the age of 69, from heart failure.
Roe v. Wade, like all of history, shows us that no stories are simple, and when we try to use simple stories to defend our arguments, we just end up with simplistic arguments. And simplistic arguments all too often lead to short term solutions, at best, and damaging controversies at worst. If our understanding of history is nuanced, the future we create will be nuanced as well. And a nuanced future is more realistic, is more “grown up” (in the adult sense of the phrase), and will work better for a wider variety of people.
I encourage you to look more deeply the history of abortion and reproductive rights, as well as the history of the Roe case and the legal history of the abortion question in the United States. As I mentioned in the beginning of the show, I’m not an expert on these things and, in many ways, came to the research, preparation, and writing of this show from a very privileged position. I’ve never had to struggle even remotely in life like Norma McCorvey did, and I’ve never had to deal with the extremely weighty questions placed before the Supreme Court in the early 1970s. So please follow up with the resources I’ve listed at the end of the www.professorbuzzkill.com blog post for this episode.
Finally, I am quite happy to admit to the fact that this is only the second best podcast episode on the history of Roe v. Wade to come out this month. Last week, the wonderful history show, Backstory, released their episode about the history of the case, and tied it most carefully and sensitively into the history of women’s health and reproductive rights in the United States from the 1960s to the 1990s. In particular, their discussion of the centrality of Ms. Magazine to the increased social awakening about abortion in that period, as well as their explanation of how these issues fit into the broader social history of those years is not to be missed. Please go to backstoryradio.org and listen to the episode “The Many Lives of Roe v. Wade” by Professors Joanne Freeman and Nathan Connolly. Any time we can be second best behind Backstory, we’re doing pretty well.
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We’ll talk to you next week.
Marian Faux, Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision that Made Abortion Legal
From the back-alley clinics of illegal abortionists to the behind-the scenes deliberations of the Supreme Court justices, Roe v. Wade is a riveting history of the thorniest ethical debate ever brought before the Supreme Court. this is the bull story behind the struggle of two lawyers, Sarah Weddington and Linda Coffee and their unwed, unemployed, pregnant client Norma McCorvey.