A People's History of the Supreme Court

by Peter Irons

  Although many women supported the suffrage movement in the early twentieth century and lobbied for laws to protect women workers, their campaigns largely disbanded after women won the vote in 1920. Abortion was not an issue that generated lobbying or litigation, although by 1910 all but one state had outlawed abortion. The birth control movement, led by Margaret Sanger, focused on contraception and stayed away from abortion. During the Great Depression and World War II, most women had more pressing concerns than abortion rights.

  There was no visible women’s movement during the Fifties, but many women supported the civil rights and antiwar movements in the Sixties. They were receptive to the message of Betty Friedan’s 1963 book The Feminine Mystique, which documented and deplored the subordinate roles of women in families, jobs, and politics. Her book focused on bread-and-butter issues like “equal pay for equal work” and did not even mention abortion. In 1966, Friedan helped launch the National Organization for Women, whose members devoted most of their energy to lobbying for the Equal Rights Amendment to the Constitution, which provided that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” First proposed in 1923, the ERA languished until the women’s movement pushed it through Congress in 1972. However, after ratification by thirty-five states, the ERA became a victim of the abortion wars and finally died in 1982, falling short of adoption by three, states. Although smaller groups like the National Abortion Rights League worked before 1973 to repeal criminal abortion laws, NOW did not make abortion rights a priority until the Roe decision sparked a “pro-life” backlash.

  A decade before the Supreme Court docketed the Roe case in 1971, a few dedicated lawyers had begun planning a long-range campaign against criminal abortion laws. Sherri Finkbine’s ordeal in 1962 had stirred Harriet Piplel, a New York lawyer who acted as counsel for both Planned Parenthood and the American Civil Liberties Union. She raised the abortion issue at the rational conference in 1964, warning that abortion laws were “a dagger aimed at the heart of some of our most fundamental freedoms.” Citing the Finkbine case, she argued that state deprived women of their liberty to make choices about childbirth when they compelled them “to have a baby when the medical testimony is that the baby may well be deformed.” The ACLU’s national board affirmed in 1967 “the right of a woman to have an abortion, and the right of a physician to perform, or refuse to perform, an abortion, without the threat of criminal sanctions.” Supporting the right of doctors to refuse to perform abortions conformed to the ACLU’s “conscientious objector” policy on military service.

  Faced with criminal prosecution in every state for performing abortions, doctors who believed they and their patients should make these decisions began an effort in the 1960s to expand the loopholes in criminal abortion laws. Between 1967 and 1971, seventeen states had revised their laws, most to permit abortions for protection of the pregnant woman’s physical and mental health as well as her life. With ACLU backing, Harriet Pilpel helped organize a campaign to repeal New York’s criminal abortion law, which succeeded in 1970. In addition to New York, the District of Columbia and three states—Hawaii, Alaska, and Washington—had adopted laws by 1971 that removed almost every restriction on abortion. Thirty states, however, still banned abortions unless the woman’s life was endangered, and three—Louisiana, New Hampshire and Pennsylvania—made every abortion unlawful.

  The small band of lawyers who filed suits against restrictive laws in several states lacked the resources of the NAACP’s Legal Defense and Education Fund, but they pooled their research and shared briefs. Unlike the lawyers who confronted in Brown the hostile precedent of Plessy the abortion lawyers had no comparable obstacle in their path to the Supreme Court. But they also had few helpful decisions like Sweatt and McLaurin, the graduate school cases that NAACP lawyers had won in 1950 and cited as precedent in their Brown arguments. The feminist lawyers took whatever precedent they could find, and discovered some in the most unlikely places.

  Jack Skinner was the most unlikely person to help American women gain the right to legal abortions. An Oklahoma jury sent him to jail in 1926 for the youthful crime of stealing chickens. Failing to learn that crime does not pay, Skinner went to prison in 1929 and again in 1934 for armed robbery. While he sat in the penitentiary, Oklahoma’s attorney general brought proceedings in 1936 against the hapless “three-time loser” under the state’s Habitual Criminal Sterilization Act. A judge ordered that Skinner undergo a vasectomy to protect Oklahoma from any further chicken thieves and robbers. Six years passed before the Supreme Court decided Skinner’s appeal from this order.

  Arguing before the Court, Oklahoma’s attorney general claimed that criminal tendencies were inherited and defended his state’s law as a “eugenic measure.” But in 1942 this sounded too much like Nazi policies under which several hundred thousand “defective” people like criminals and the mentally retarded had been sterilized in Germany, Justice. William Douglas wrote for a unanimous Court in Skinner v. Oklahoma. He made a veiled but pointed reference to the Nazis in striking down the law. “In evil or reckless hands”, he wrote, the power to sterilize “can cause races or types which are inimical to the dominant group to wither and disappear.” Douglas based his ruling on equal protection grounds, since the Oklahoma law exempted those convicted of white-collar crimes like embezzlement, even though they often stole more than robbers. But his opinion opened the door to future cases that raised broader issues. “We are dealing here with legislation which involves one of the basic civil rights of man,” Douglas added. “Marriage and procreation are fundamental to the very existence and survival of the race.”

  The Skinner case established a “fundamental right” to procreate, allowing people to have children if the want them. Does the Constitution also include the right not to have children? The justices answered this question in 1965, ruling in a case that. began in 1961 when planned Parenthood opened a medical clinic in New Haven, Connecticut, the home of Yale University but also a heavily Catholic city. A Connecticut law, enacted in 1879 during the “moral purity” crusade of Anthony Comstock and his Society for the Suppression of Vice, made it illegal to use “any drug, medicinal article or instrument for the purpose of preventing conception.” State officials had never prosecuted any doctors under this law, but the New Haven district attorney reluctantly followed up a complaint from an incensed Catholic neighbor of the New Haven clinic and arrested its director, Estelle Griswold, who greeted her arrest with delight. The Supreme Court had recently refused to hear a challenge to the Connecticut birth control law, on the ground that no person faced any penalty for violating its provisions. By arresting Griswold and Dr. Thomas Buxton, the clinic’s medical director and a Yale medical professor, New Haven officials gave birth control advocates a better shot at Supreme Court review. After a brief trial in which the eager defendants admitted their guilt, a local judge fined them $100 each for giving contraceptives to married couples.

  The justices heard arguments in Grisworld v. Connecticut in March 1965. Thomas Emerson, who argued for Estelle Griswold and Dr. Buxton before the Court, was a Yale law professor and a close friend of justice William Douglas. Emerson attacked the Connecticut law for infringing personal “liberty” under the Fourteenth Amendment’s Due Process Clause, citing the opinion Douglas had written in the Skinner case for authority; he added that Connecticut lawmakers in 1879 believed “it’s a religious principal that’s being enacted into law.” The state’s lawyer, Joseph Clark, had trouble answering questions about the law’s purpose, finally settling on the promotion of marital “fidelity” as the best reason. Access to contraceptives, he suggested, might plant thoughts of adultery in the minds of errant spouses. Given the state’s weak argument, the Court could, easily have struck it down under the “rational basis” test. But Griswold reached the justices at the height of the Warren Court’s “activist” phase, and the liberal majority relished this
chance to invalidate a law they viewed as a relic of Victorian morality.

  Justice Douglas wrote for the Court in the Griswold case, and he eagerly walked through the door he had left open twenty-three years earlier in his Skinner opinion. Like his friend Tom Emerson; Douglas was a former Yale law professor, and his Griswold opinion read almost like a parody of academic jargon. He wanted to find a “fight to privacy” in the Constitution, but that phrase does not appear in its text. So he scoured the Court’s earlier decisions for precedent, turning up four cases that established a “right of association” under the First Amendment. Two upheld the fights of parents to make decisions about their children’s education, and two protected the NAACP from harassment by southern officials. “The association of people is not mentioned in the Constitution nor in the Bill of Rights,” Douglas conceded. Nonetheless, the cases he cited “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Douglas pointed to the First, Third, Fourth, Fifth, and Ninth Amendments as sources of the “emanation” whose “penumbras” created “zones of privacy” into which government cannot trespass without good reason. In other words, Douglas was comparing the Bill of Rights to an umbrella that shields the public from official snoopers, casting a wider shadow than its narrow words.

  Although his arcane terms drew snickers from the legal cognoscenti, Douglas grounded his Griswold opinion on a solid foundation of precedent. He cited a dozen cases decided between 1886 and 1961—including his Skinner opinion of 1942—to argue that Dr. Buxton and his patients enjoyed “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” Oddly, the five amendments on which Douglas rested his “privacy” claim did not include the Fourteenth. In both Skinner and Griswold, he deliberately avoided reliance on the Due Process Clause, wary of raising the discredited Lochner decision from its judicial grave. Finding a “liberty” to use contraceptives might revive the “substantive due process” doctrine the Court had buried in 1937 in West Coast Hotel. “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions,” Douglas wrote in Griswold. He feared that using the Due Process Clause to strike down Connecticut’s ban on contraception might encourage more conservative justices, once they gained a majority, to wipe out the New Deal legacy of social legislation. Douglas did not want his Griswold opinion cited as precedent by lawyers who represented sweatshop owners and racial bigots. Grounding the “right to privacy” on the Bill of Rights would keep the Fourteenth Amendment out of the wrong hands.

  Tom Clark was the only justice who did not quibble with Douglas in the Griswold case. John Harlan—the Warren Court’s most principled conservative—had no qualms about finding the “liberty” to use contraceptives in the Due Process Clause. He wrote in concurrence that the Fourteenth Amendment “stands, in my opinion, on its own bottom” and does not depend on other amendments “or any of their radiations” for its meaning. Justice Harlan sounded like Harlan Fiske Stone in giving the Connecticut law “closer scrutiny” and concluding that it abridged the “fundamental liberties” of Dr. Buxton’s patients to obtain contraceptives. Arthur Goldberg, joined by Earl Warren and William Brennan, chided Douglas for timidity. Goldberg fearlessly opened the Pandora’s box of the Ninth Amendment, discovering “the right of privacy in the marital relationship” among those “retained by the people” when they handed powers to government officials. Byron White, skeptical of any “privacy” rights, joined the majority—but not Douglas—with a concurrence that stressed Connecticut’s “total nonenforcement” of its contraceptive ban as grounds for striking down the law

  The two Griswold dissenters, Hugo Black and Potter Stewart, joined each other’s opinions. “I like my privacy as well as the next one,” Black wrote, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional protection.” Consulting his well-thumbed copy of the Constitution, Black found no words that barred states from banning contraception. Admitting that Connecticut’s law reflected Victorian morality, Black decried any effort to “keep the Constitution in tune with the times.” Stewart also found no constitutional provision offended by the “uncommonly silly law” he voted to uphold. In his opinion, judges should not decide for voters which laws they considered “unwise, or even asinine.”

  Texas lawmakers—all men and all white—had enacted a criminal abortion statute in 1854, providing that “any person” who performed an abortion “shall be confined in the penitentiary not less than two nor more than five years.” Fifty years later, the state legislature amended the law to permit abortions that doctors considered necessary to save a woman’s life. Was the Texas criminal abortion statute an unwise or asinine law? Even if it was, did the law violate the Constitution? If so, which provision did it offend? Between them, the Supreme Court justices wrote six opinions on both sides of the Griswold case in 1965. Five years later, this judicial cacophony presented three federal judges in Dallas with several choices in deciding these questions at a hearing on May 22, 1970.

  This judicial panel had convened to hear arguments on three separate lawsuits filed against the Texas abortion law. The first suit had been filed two months earlier, on March 3, on behalf of “Jane Roe.” This legal pseudonym shielded the identity of a young woman named Norma McCorvey, who had asked her lawyers to keep her name out of the newspapers; the public did not learn her true name until 1984, when she finally took off her legal mask. Norma was twenty-two years old and three months pregnant when she first tried to get an abortion in January 1970. She was not another Sherri Finkbine, happily married with four children and her own television show. Norma Nelson McCorvey was a high school dropout from a broken home; she had been raped at an early age and spent much of her childhood in reform schools. She was sixteen and working as a carhop when she met “Woody” McCorvey, eight years older and twice divorced. They got married six weeks later and soon left Dallas for California, where Norma discovered she was pregnant. Woody flew into a rage, accusing his wife of sleeping around and punching her black and blue. She took a bus back to Dallas, got a job in a lesbian bar, and gave birth to Melissa in May 1965. Upset with Norma’s bisexual lifestyle, her mother moved to Louisiana with Melissa and gained legal custody with her second husband.

  Norma had a second daughter in 1967, the result of a brief affair, and willingly surrendered custody to the baby’s father. She left Dallas in the fall of 1969 with a traveling circus, working as a ticket-taker. Sometime in October 1969, Norma discovered she was pregnant for the third time and returned home. She visited Dr. Frank Bradley, who had delivered her two daughters, and he confirmed her pregnancy; she later recalled that he was “absolutely appalled” when she told him she did not want another baby. Dr. Bradley would not give her any help, even the names of other doctors who might perform an abortion. Norma went to see an osteopath, Dr. Richard Lane, who said he could not help but referred her to a lawyer named Henry McCluskey. Time was running short for Norma to have an abortion, and she wanted help in arranging an adoption for her baby, which was due in July. McCluskey met with her in late January 1970 and agreed to help arrange an adoption with a good family who would pay her childbirth expenses. They talked about abortion, and Norma said that she wished it were legal in Texas. McCluskey had recently won a case before a federal judicial panel, challenging a Texas law under which a married couple had been prosecuted for committing acts of sodomy. Writing for the panel, district judge Sarah Hughes had cited Griswold v . Connecticut in holding that moral disapproval of sodomy “is not sufficient reason for the State to encroach upon the liberty of married persons in their private conduct.” A young Dallas lawyer named Linda Coffee had helped McCluskey in this case, and had asked his help in finding a pregnant, woman who might, be willing to challenge the Texa
s abortion law.

  After his meeting with Norma, McCluskey called Linda Coffee and said he might have found her a plaintiff. She was excited and asked him to arrange for her to meet with Norma. Coffee then called her friend Sarah Weddington, a law school classmate from the University of Texas who had set up practice in Austin after graduating in 1967. The two young lawyers had been working with a group of Dallas women at the First Unitarian Church, who were planning a public campaign to repeal the Texas abortion law. Coffee and Weddington thought a lawsuit might help the campaign and might even succeed in striking down the law in court.

  Weddington agreed to come to Dallas for a meeting with Norma McCorvey, and the three women first met at Columbo’s Pizza Parlor in late January. Norma had told another woman in Dr. Lane’s waiting room that she wanted an abortion and was advised that doctors might be sympathetic if she told them she had been raped. This was not true, but she told the two lawyers that a group of men had gang-raped her in Florida while she walked late one night from the carnival to her motel room. Coffee and Weddington expressed sympathy, but the Texas abortion law did not include a rape-victim exception and they did not want to ask the courts to create one. They also did not want to help Norma obtain a late-term abortion before they filed suit; they needed a pregnant plaintiff who still wanted an abortion. Norma agreed, and they finished their pizza with an understanding that the suit would be filed without her name on the caption.

  Linda Coffee did most of the work in February 1970 on the complaint for “Jane Roe.” She and Sarah Weddington had decided it would be helpful to file another complaint on behalf of a married couple. They reasoned that judges might dismiss Jane Roe’s case for “mootness” if she was no longer pregnant when the case was heard. Judge Hughes’s decision in Henry McCluskey’s sodomy case suggested that married couples might find more judicial sympathy than unmarried women. Giving the judges a choice of cases also increased the odds of getting a favorable decision in at least one. Linda Coffee knew a married couple, Marcha and David King, who agreed to become “John and Jane Doe.” She filed the “Roe” and “Doe” complaints in federal court on March 3, 1970. They both asked for a “declaratory judgment” that the Texas abortion statute violated the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments. Both also named Dallas County’s district attorney, Henry Wade, as defendant and sought an injunction barring him from enforcing the statute. Jane Roe’s complaint alleged that the law infringed her “right to safe and adequate medical advice pertaining to the decision of whether to carry a given pregnancy to term” and also infringed “the fundamental right of all women to choose whether to bear children.” The Does’ complaint alleged that the abortion law intruded on their “right to marital privacy” and that fear of an unwanted pregnancy had “a detrimental effect upon Plaintiffs’ marital happiness.”