The Feminist Promise

by Christine Stansell

  In 1970, the Supreme Court agreed to hear two abortion cases. Doe v. Bolton from Georgia and Roe v. Wade from Texas began with the troubles of two poor women, Sandra Bensing in Atlanta and Norma McCorvey in Dallas. Each woman’s plight came to the attention of repealers, who convinced them to take legal action, connected them to a wider world of advocacy, and put money and legal resources into the litigation. In other words, the cases were joint creations of reformers and hard-pressed women, neither entirely crafted by legal activists nor simply outgrowths of protest politics, but rather products of what can be seen as constitutionalist collaborations.

  In 1970, the same day the physician Jane Hodgson filed her appeal of her conviction in Minnesota, a complaint filed on behalf of “Mary Doe” hit the news in Georgia. Signing the complaint with Mary Doe were the organizers and initiators of the action, some two dozen doctors, nurses, and hospital social workers, Atlanta Planned Parenthood, and the Georgia group for abortion repeal. Mary Doe was the legal pseudonym of Sandra Bensing, whose compelling case presented a worst-case scenario that was, in fact, the best-case scenario to test the law.

  Bensing’s situation, while extreme, was by no means atypical of women without the money to travel to Mexico, Puerto Rico, or Sweden to get an abortion. A twenty-two-year-old high school dropout down on her luck, she was into her fourth pregnancy and married to a violent and abusive drifter who was a convicted child molester. The couple had given up one child for adoption and the other two were in foster homes. Bensing applied for a therapeutic abortion at an Atlanta hospital, went through five sessions of interviews and examinations, and was denied.32

  In Texas, Norma McCorvey also agreed to sign on to a suit constructed and carried forward by activists. The movement in Texas dated back to 1968, when a group of Austin feminists started a birth control counseling service near the University of Texas campus and found themselves fielding women’s requests to help them find abortions. Once they set up a connection with a safe and reputable clinic in Mexico, they asked Sarah Weddington, a recent law school graduate and native Texan, to investigate their legal standing. Weddington, underemployed at the time, had been a star student at the University of Texas School of Law. But graduating in 1965 as one of four women in a class of 120, she had no job offers. Thus in 1968, when the others approached her, she had time on her hands to pursue an interesting question, one that might relate to the Griswold decision that had so intrigued her generation of law students.33

  Weddington contacted a law school friend, Linda Coffee, who was involved in Dallas NOW. Drawn together by an interest in women’s causes, they mused about bringing a challenge to the 1859 Texas statute, the most extreme in the country, which prohibited abortion for any reason (including rape and incest) except when a woman’s life was in danger. They found their plaintiff through a lawyer friend when Norma McCorvey contacted him to ask for help getting an abortion. McCorvey was single and a high school dropout; she had one child and did not want another. She was working as a waitress and knew she would lose her job if she were pregnant. Although desperate, a woman like McCorvey, because she was healthy, had absolutely no chance of getting a therapeutic exception. The lawyer told her he could not help with the abortion but put her in touch with the two lawyers who were interested in abortion. McCorvey, moved by their explanation of how many women found themselves in her plight and touched by their respectful manner, agreed to be a plaintiff.34

  NOW members and Protestant and Jewish women’s groups pitched in to raise money and get sympathetic local publicity. Dallas women produced two more plaintiffs. Marsha King had recently had a traumatic experience getting an abortion in Mexico; she volunteered along with her husband, David, to join McCorvey, or “Jane Roe,” adding the dimension of the marital right to privacy affirmed in Griswold. McCorvey, an unstable figure and hard to locate in her vagabond life, remained in the shadows, while the Kings, respectable, articulate, and middle-class, represented the lawsuit to the Texas public; they remained anonymous but spoke eloquently to the press. Although they stood for the moderate position, conjuring up responsible spouses making a careful decision to terminate an unwanted pregnancy, that did not mean they pulled back from the tougher feminist claims. David King movingly enunciated the implications of their participation: “We don’t really stand for two people who, because of our particular situation, found abortion necessary. We stand for everybody—for women’s right to freedom of choice.”35

  Roe was blessed with legal luck from the start. Weddington’s petition for a declaratory judgment reached federal district court at just the moment the membership of the AMA voted to support repeal of the abortion ban. The three-judge panel, which included Judge Sarah Hughes, one of the few female federal judges in the country, took five minutes to decide the case. In a succinct nine-page opinion, the judges ruled the statute unconstitutional.36

  The arguments and strategies in the Texas and Georgia cases drew from a crowded field of legal activity where women were directing the action. On the East Coast, feminists were organizing lawsuits in which hundreds, rather than one carefully chosen perfect plaintiff like Mary Doe or Jane Roe, challenged the law. The approach was inspired by Redstockings’ use of women’s experiences. With New York women in the lead in a powerfully argued case, Abramowicz v. Lefkowitz, feminist lawyers challenged statutes in New Jersey, Connecticut, Pennsylvania, Massachusetts, Rhode Island, and Tennessee. Hundreds of women signed on. These large actions changed the dynamics of litigation. Abramowicz went to court with 350 female plaintiffs represented by five women lawyers, whose “presence in the courtroom startled male judges and lawyers alike,” recalled one of the attorneys, Nancy Stearns.37

  The process of recruiting plaintiffs was in itself a politicizing activity, because so many women from different backgrounds joined and because their stories dramatized all the more the urgent need for change. The group that brought the Connecticut suit, Abele v. Markle (called Women versus Connecticut in the women’s movement), sent out speakers with plaintiff forms to women’s groups. The dictate of the-personal-is-political kicked the process into gear. “We thought that you went from the personal to the political, so everywhere we went, we told things that were hard to tell strangers,” recounted Ann Hill, an organizer. “And they in turn told things that were hard to tell.” It was consciousness-raising on a grand scale. “Everybody had either had an abortion or had a friend who had had an abortion or went to school with somebody who suddenly wasn’t in school anymore, and they’d hear they were in some home for pregnant teens and banished from society.” The momentum conferred a sense of agency and efficacy: Women might be able to shape the law to their needs. “We broke down our feelings of isolation and said, ‘It’s time that we did something about this.’ ” 38

  Before Abramowicz went to trial in 1972, courts considered the rights of physicians, since they were the ones subject to sanctions, not the rights of women. The new wave of challenges forced courts to refocus their attention. Judges could bridle at the shift, which involved an all-female cast of characters. In Abramowicz, the three-judge panel balked at the lineup of women ready to testify in court and ruled that they must instead present written depositions. In Rhode Island, two judges walked out before witnesses were even called. In the Connecticut case, however, a panel of judges heard testimony and the influence on the decision was clear. Ruling for the plaintiffs, the district court agreed that “the decision to carry and bear a child has extraordinary ramifications for a woman” and went on to speak of economic burdens, the interruption of education, the stigma of illegitimacy, and the physical strains of pregnancy.39

  When the Supreme Court agreed to hear the Texas and Atlanta cases, a dispersed legal network snapped into action. At the center was Roy Lucas, the man responsible for crafting the strategy that moved the fight to the courts. Like Sarah Weddington, Lucas was a recent law school graduate who had been deeply affected by the civil rights movement and fascinated by Griswold’s implications. He was first struck by
the creative uses of Griswold in a civil rights case, Loving v. Virginia, in which the Supreme Court struck down a Virginia anti-miscegenation law.40

  At New York University Law School, Lucas wrote a bold paper using Griswold to mount a frontal attack on abortion statutes. Lucas argued that abortion was “a fundamental right of marital privacy, human dignity, and personal autonomy reserved to the pregnant woman acting on the advice of a licensed physician.” Published in 1968 in a law review, the article drew the attention of Harriet Pilpel, who had been representing defendants in test cases of anti-birth-control statutes for four decades (since she worked in the 1930s as a junior associate in the firm of Morris Ernst, who was Margaret Sanger’s counsel). Pilpel was looking to move the action out of state legislatures and welcomed the innovative approach. In 1968, Lucas began to coordinate challenges from across the country under the auspices of a Manhattan public interest law organization.41

  To prepare for Roe, Weddington moved to New York to work with Lucas. Her attorney husband, Ron Weddington, quit his job to join her. Lucas’s small staff orchestrated the amicus curiae briefs—forty-two in all, from organizations that included the AMA, American Psychiatric Association, and Zero Population Growth. Lawyer friends in Austin pitched in from a distance. The many lawyers working on amicus briefs, the mix of men and women, the fraught partnership of Southerners (Texans and Georgians) with New Yorkers, the distance, and the heat all frequently brought tensions to a boil.

  One testy issue was the prominence of women, a question linked to who would argue the case before the Court—a feather in any attorney’s cap, and for Lucas, the chance to make good on work that had consumed him for years. But by 1971, feminists had reframed abortion as a women’s issue and recast the culture of the male courtroom as itself needing change. The mood was not generous toward men in general, and particularly men slow to comprehend the demands of drastically revised gender etiquette. Lucas, while in large measure responsible for giving intellectual and practical coherence to national litigation, was known for his arrogance and high-handedness. He managed to offend several parties to Roe, including plaintiff Marsha King, who pulled a new word out of the hat and complained that he was a sexist. For a change, this was the woman’s hour, and Lucas was forced to step aside to let two women serve as lead attorneys: Sarah Weddington and Doe’s Margie Hames of Atlanta. At twenty-six, Weddington, the law school graduate who couldn’t find a law-firm job, was possibly the youngest person ever to argue before the Supreme Court.42 It was almost certainly the first time two women argued before the Court.

  The argument for the plaintiffs invoked numerous sources of constitutional authority for the right to abortion. The attorneys cited the Fourth, Fifth, Eighth, Ninth, Fourteenth, and Nineteenth amendments and proposed an extension of Griswold’s right to privacy in contraceptive choice. “Liberty talk and equality talk were entangled, as emanations of different constitutional clauses,” Reva Siegel observes.43 Pilpel, representing the ACLU, and Nancy Stearns, on behalf of New Women Lawyers (associated with Abramowicz), submitted amicus briefs that reinforced those aspects of the argument that spoke to the social meanings of compulsory pregnancy for women: the inordinate responsibilities that fell on them, the adverse effects on their prospects for education and financial well-being, the burdens of maternity that forced mothers into dependence on men and the state.

  Stearns’s brief was sweeping, tough, and to the point. It is the custom that amicus briefs go for broke, making the claim in the strongest terms possible, and Stearns did not disappoint. A tincture of women’s liberation outrage suffused the elegant reasoning from the first sentence: “During the past two years the question of the constitutionality of abortion laws—of the right of a woman to control her own body and life—has become one of the most burning issues for women throughout the country.” Stearns quoted women’s personal testimony and detailed meticulously the crippling effects of forced pregnancy. She cited a host of laws upheld by the courts that affected pregnant women and new mothers adversely: statutes that denied them their jobs and unemployment insurance, expelled them from school, and gave them no help in getting child support from fathers. She put the Nineteenth Amendment into play, pointing out the historical dilemma of a class of people subject to laws made prior to the time they could vote. The broadly gauged approach stressed women’s historical entanglement in a nexus of laws, customs, and assumptions that condemned them to a subject position—a time-honored argument of feminist thinkers, now turned to maximum effect. Stearns and Pilpel both stressed the importance of the choice and timing of childbearing as a necessity for women to function fully in the wider world, an argument from the fullest interpretation of the Fourteenth Amendment’s guarantee to equal protection.44

  In January 1973, the Court issued its decision, written by Justice Harry Blackmun, a Nixon appointee. A modest man, Blackmun insisted later that “Roe against Wade was not such a revolutionary opinion at the time.” The demurral has truth to it, if one considers the high bar of free abortion on demand. But at the time the ruling was “stunning,” as Ruth Bader Ginsburg wrote in 1985. A “thunderbolt,” a leading reformer heralded Roe, going “beyond what anyone would have predicted.” Pilpel, who had appeared in court arguing for reproductive rights longer than anyone else involved, marveled that the decision “scaled the whole mountain. We expected to get there, but not on the first trip.”45

  In a 7–2 decision, the Court extended Griswold to pertain to “the personal privacy of the abortion decision.” The justices ruled that a woman, guided by her physician’s medical judgment, had a constitutionally protected right to terminate a pregnancy, anchored to a concept of personal autonomy. Roe reached across the field of pro-abortion arguments, sorted through them, and collected the moderate ones into an affirmation that the right to privacy pertained to a woman’s judgment about her pregnancy.

  Blackmun, however, rejected the claim that “the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” He sought rather to balance the woman’s desire to end the pregnancy with the state’s interest in her health—a woman’s health being the traditional justification for nineteenth-century statutes banning abortion. He thus introduced a medical dimension, famously blurring the distinction in Roe between which right is being upheld: the doctor’s right to protect a patient’s health or the patient’s right to terminate a pregnancy for her own reasons. Because the state did have a “compelling interest” in preserving and protecting a woman’s health, her right to an abortion was not absolute. The state was justified in intervening with increasing degrees of restraint as the pregnancy proceeded and the issues of her health became more complex. It is here that the now famous system of trimesters came into play, whereby Blackmun turned the guidelines used by obstetrical studies into legal distinctions, with the second and third trimesters involving increasing degrees of state regulation. In the third trimester, the viability of the fetus entered in, although in obstetrics, the viability of a fetus is not fixed, but a medical judgment. Blackmun made viability a hard-and-fast legal designation, like age eighteen for voting. Choosing to “regulate, and even proscribe, abortion, except where necessary.” Even so, no question of fetal life was involved, but rather, the increasing risk of later-term abortions to the woman’s health.46

  Blackmun’s trimesters, however, were probably the only practical solution that over the long run could hold firm against the anti-abortion movement’s claim that from the moment of conception the fetus had an absolute right to be carried to term. The first trimester designation had the additional merit of lining up with “quickening,” when the fetus moves in utero, a sign recognized for centuries by women, midwives, and physicians as the moment when the fetus becomes a human being.47 And, to repeat: Even the trimester system was there to protect the woman from the increasing risks of later abortions, not to differentiate degrees of human life. In fact, to the lay reader tod
ay, the mild-mannered concern about protecting the woman’s health—and thereby justifying state intervention—stands in surprising contrast to the lurid dramaturgy of fetal personhood that became the antiabortion movement’s stock-in-trade. While the Court recognized a state’s interest in protecting “the potentiality of human life,” it rejected the Texas claim that the fetus was a person and thus protected under the Fourteenth Amendment (Sarah Weddington pointed out that no U.S. census had ever counted fetuses).

  Blackmun was not deaf to women’s voices in the arguments: “Maternity, or additional offspring, may force upon the woman a distressful life and future.” There could be psychological harm, he noted; child-care burdens that taxed mental and physical health; the stress of bringing a child into a family without the means to care for it. Nancy Stearns recognized language from her brief in Blackmun’s opinion: “The experiences of women got through. Our decision to influence the law by presenting the experiences of women was successful.”48 Others disagree and say that Blackmun ignored feminist claims. Certainly he veered away from the challenge of imagining women’s lives to the safer exercise of conjuring up the doctor’s office: “All these are factors the woman and her responsible physician will consider in consultation.”49

  Roe at one stroke turned repeal into the law of the land. It fell short of the boldest demand for women’s unrestricted right to abortion. Blackmun’s apparatus of trimesters seemed cumbersome and threatening, as if it were going to be the foundation of a counterattack (as in fact it proved to be). Poor women’s needs were the first to go, once Catholics succeeded in revoking Medicaid funding in New York state, a tactic that led three years later to the Hyde Amendment, which denied Medicaid funds for abortion services.50